Sunday, August 14, 2022

When the Supreme Court Makes a Mistake

What happens when the Supreme Court gets it wrong?

Misguided court decisions have altered the path of the nation in sadly demonstrable ways. And the question arises again from the series of sharply divisive rulings by the current court.

The short answer is: Not much can be done. In the American system, an edict from the high court is almost uniquely without check or balance. When justices err, the people suffer the consequences.

The only corrective is the high court itself, as future generations reconsider once-settled doctrines. But problems often get worse before they get better, because Supreme Court errors are rarely one-offs. When a cabal of justices goes astray, they tend to keep on going. Mistake follows mistake, and the boundaries of American freedom get squeezed.

Mistakes are, of course, in the eyes of the beholder. The current court’s decision to overrule Roe v. Wade wasn’t unwelcome to the sizable minority who oppose abortion rights. In their eyes, the Roe precedent was the mistake. But a more rigorous assessment awaits. There have been many high-court rulings that, while comforting to supporters, look abominable, even unconscionable in the fullness of time — cases that few rational jurists, left or right, would ever try to defend.

Taken together, the judicial errors of the past paint a tragic, almost mournful, picture of the court’s role in American history. Eugenics. Forced sterilization. Racial segregation. Internment for citizens based on ancestry.

“In our governmental system, the Supreme Court, on constitutional questions, is infallible, though, as everyone knows, no one of its members comes within sight or sound of infallibility,” averred Justice David Brewer, who served from 1889 to 1910.

Brewer knew what he was talking about, because he sat with a group of justices who were far more conservative than the nation they served. Their decisions damaged American life for generations, denying the government the power to combat the economic excesses of the Gilded Age while giving the imprimatur of the highest law in the land to discrimination and segregation.

The occasion for Brewer’s remark was a dinner feting the 25th anniversary of the investiture of that court’s great dissenter, John Marshall Harlan. By today’s standards, it’s hard to classify Harlan as a liberal or conservative — he is, in fact, claimed by both sides — but he shared with today’s liberals a sense of foreboding about the court’s impact on the country. His refuge was his faith in the power of dissent. And dissent he did — with a roar that continues to be heard through the centuries.

But an examination of Harlan’s most significant cases provides almost a civics-class primer on the ways that judicial mistakes can linger and do great harm before finally being overcome. And it reveals that there is no single route to reconsideration.

The easiest path — but one less likely to provide optimism for abortion rights supporters — is simple persuasion. In 1895, the nation’s economy was being strangled by monopolistic trusts. Conservative justices were alarmed by the prospect of antitrust prosecutions under the newly approved Sherman Antitrust Act. When the Cleveland administration tried to break up the sugar trust — the lowest-hanging fruit in the orchard of trusts, controlling 98 percent of sugar manufacturing — the justices balked. A convoluted majority led by Chief Justice Melville Fuller insisted that control of manufacturing did not, in itself, indicate an intent to control prices.

Shockingly, Harlan was the only justice who saw the fallacy in this, rebutting, “Was it necessary that formal proof be made that the persons engaged in this combination admitted in words that they intended to restrain trade or commerce? Did anyone expect to find in the written agreements which resulted in the formation of this combination a distinct expression of purpose to restrain trade or commerce?”

This was no small matter: In industry after industry, manufacturers were banding together and cutting exclusive deals with railroad operators to drive out competitors and set wages and prices. The vast extent of the problem seemed to force some of the same justices to alter their thinking. Shifting political winds and relentless criticism of the court’s logic changed the tide. By 1905 — only 10 years later — the court had reopened the door to government actions to break up monopolies.

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