March 16-17, 2013: Supreme Contexts: The Cases Before Us

[Later this month, the Supreme Court will hear its next two landmark cases, these related to the issue of same-sex marriage. So this week I’ve highlighted five significant 19^th century SC decisions, and more exactly analyzed one key contextual frame for each. That has lead up to this special post on the upcoming decisions. Add your judicious thoughts and takes in the comments, please!]

Three thoughts on how a historical perspective on the Supreme Court can help us consider the possible outcomes of these significant cases.

I’m no legal expert, and I’ll leave the analyses and speculation on that front to those who are. So these are three AmericanStudies takes on the Court and its historical precedents:

1)      Always Political, But Worse than Ever: It’s impossible to examine the kinds of cases I did this week and argue that the Court has ever been divorced from politics, from relationships to presidents and Congress, to contemporary national debates, and so on. Yet at the same time, I stand by what I wrote in this post: that the last decade or so has seen a significant uptick in the Court’s overt political roles, stances, voices, and so on. Justice Scalia’s recent reliance on talk radio talking points in commentary on the ACA and the Voting Rights Act would be exhibit A in that brief. Makes it hard to argue that politics won’t play a role in these gay rights cases.

2)      Yet Can Rise Above It: I suppose you could make the case that even the Court’s most inspiring decisions—such as against Indian Removal in Worcester v. Georgia, or against segregation in Brown—were motivated in part by political concerns: an opposition to Andrew Jackson in the former, for example. But I’m not willing to be that cynical. At times, the Court has to my mind transcended political or social debates and found the more ideal and powerful side to the law, and particularly to what it offers all Americans. Those are two examples, and perhaps these gay rights cases will be another.

3)      They’ve Got the Power: The Court doesn’t get the final say on anything, and especially not on huge and evolving issues like same-sex marriage. The arc of the universe will keep bending in any case, and, I believe, will indeed bend toward justice. But a case like Dred Scott illustrates the Court’s genuine power to shape current events, for good or for ill. Would an anti-slavery decision in Dred have staved off the Civil War? Most likely not—but at least it would have given abolitionism national momentum and support, instead of reinforcing its seemingly radical and revolutionary nature in those pre-war years. Would a ruling against same-sex marriage rights be akin to a 21^st century Dred? Not sure, but let’s hope we get instead another Brown.

Next series starts Monday,

Ben

PS. What’s your take on these cases? Or on the Supreme Court in American history, identity, and society overall?

PPS. Speaking of significant cases, and to follow up a post of mine from last year, an Arizona judge has recently (and damn frustratingly) upheld the state's Ethnic Studies ban. Sigh. La lucha continua!