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The Evil Supreme Court

(I hereby place this essay in the public domain. It may be posted in whole or in part on the Internet or published in commercial publications without attribution or payment.)

Many people today have a positive opinion of the U.S. Supreme Court because of such decisions as Brown v. Board of Education. However, I know what Paul Harvey would call the rest of the story and it isn’t pretty.

In 1857 in the Dred Scott Case the Court ruled that slaves were “property” not “persons” and that Congress couldn’t prohibit slavery in territories as part of the Missouri Compromise. The Court believed such action unlawfully deprived [white} persons of their “property”. The decision further inflamed Northern opinion against slavery and helped lead to the Civil War.

Later in the century, the Court prevented the states from enacting legislation to protect workers from unfair labor practices. As a result, workers had to rely on unions and violent confrontations with management instead of law to handle labor issues. The Court also hampered congressional efforts to force giant corporations to compete fairly with smaller companies.

One of the Court’s worst decisions came in 1896 when it in effect removed the 14th Amendment protections for former slaves from the Constitution in the Plessy v. Ferguson decision. The Court ignored the opinion of the author of the Amendment, Rep. Charles Sumner, who believed that segregation was wrong and he wanted the Constitution to prohibit it. The Court subsequently allowed the south to in effect ignore the 15th Amendment’s protection of voting rights as well.

The Court’s ruling allowed southern states to treat blacks as second class citizens, including allowing whites to rape and murder blacks without fear of being punished.

It took 58 years for the Court to admit it had made a terrible mistake. The Court overturned Plessy V. Ferguson only after a bipartisan effort involving Democrat President Harry Truman and congressional Republicans eliminated segregation in the military and the District of Columbia and Branch Rickey integrated professional baseball.

Unfortunately, the 58 years of segregation meant that three generations of southerners had lived under segregation and the vast majority of native southerners alive in 1954 had never known anything else. It isn’t surprising that they had trouble adjusting to the idea of a racially integrated society in which blacks were to be treated the same as whites and reacted violently to the efforts of black residents to gain the rights they should have had all their lives. The world southern whites had known all their lives was changing radically and they didn’t know how to cope with the change.

The Supreme Court’s actions to limit President Franklin Roosevelt’s efforts to end the Depression didn’t result in violence but could have. Fortunately Roosevelt was able to keep people calm in spite of the Court’s interference and the nation did not succumb to those who advocated violence and dictatorship.

Recently the Court has decided to prevent the legislative branch of government from dealing with the issue of how to handle those with brain injuries by telling a Florida district court judge he can set himself up as superior in power to the Florida legislature. The Court by refusing to review Judge George Greer’s rulings has told the parents of persons in the condition of Terri Schiavo that the only option they have to save keep their daughters from being starved to death is to take the law in their own hands and kill those who want to kill their daughters. The Schindler’s don’t seem to be the type of people who would take that option. How many of us can honestly say that in the same situation we would not act in “self defense” to protect the life of someone we cared about?

The Founding Fathers placed the law making power in the hands of the legislative branch of government because it is the branch of government closest to the people and thus best able to serve their will.

Maybe the Civil War and labor violence would have occurred anyway, but we’ll never known if legislative actions could have prevented violence. The Court prevented the political process established by the Constitution from working.

The Founding Fathers recognized that only an institution that could find compromises between those with sometimes widely divergent positions could prevent the use of violence to accomplish goals. Court decisions based on the personal opinions of Supreme Court justices often fail to consider the need for a compromise in which both sides feel they have won something and might gain more in the future. The Court prefers to have situations in which one side wins and gets everything it wants and the other side gets nothing. The Court believes that in disputes there is only one right answer.

The framers of our Constitution recognized that there might not be a single right answer. They recognized that the best answer was the one that came closest to providing satisfaction to everyone not the answer that came closest to satisfying some arbitrary standard.

Those who support the power of the Supreme Court to make political decisions disguised as law claim they want to resolve controversies through law. However, the Supreme Court in practice has done exactly the opposite. It has prevented resolution of conflicts by the legislative branch of government through law and encouraged resolution of conflicts through violence.

We need to return the nation to the principles established by the Constitution of a government based on three equal branches, not one superior branch which can order the other two around. We need to amend the judicial article of the Constitution to prevent the Supreme Court from interfering in the process of resolving disputes through compromises by those with competing views.

A possible amendment is at:



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