The Evolution of the Supreme Court

Grace: 00:00:00

Hi, it's Grace Cowen and this is Frogmore Stew.

Grace: 00:00:03

Today. Caitlin is sick. And given all that's going on with our U. S. Supreme Court, I thought it might be a good time to look back and understand the difference between the six judges and the three judges that are currently deciding our future.

Grace: 00:00:26

The Supreme Court. It is the one apolitical independent body of our three branches of government. At least, it's supposed to be. So when did the Supreme Court become another branch of government pulled by the weights of parties? The United States Supreme Court is the final decision maker of the law. They ensure that we, Americans, have the promise of equal justice under that law.

Grace: 00:00:56

And this branch of government is uniquely American. But right now, its credibility is seriously in jeopardy. Let's go back and start with Dwight Eisenhower. During his eight years in office, Eisenhower appointed five justices to the Supreme Court, beginning with Chief Justice Earl Warren, a Republican. His court changed the legal structures of the nation to promote equality, and it required state voting districts to be roughly equal in population so that, for example, one district couldn't have 500 people and another 127, 000.

Grace: 00:01:36

It required law enforcement officers to read suspects their rights, Miranda laws. And it banned laws criminalizing interracial marriage. It ended laws against contraceptives. Warren resigned during President Nixon's term, and Nixon chose Chief Justice Warren Burger to replace him. He presided over the court for the Roe v. Wade decision striking down state abortion laws. These major changes for equality were handed down by all male, mostly Republican appointed justices. And these decisions brought about noticeable societal change. From 1954 until 1987, the prevailing principle of the court was that it must protect civil rights, especially when state legislatures discriminated against certain populations.

Grace: 00:02:28

Using the 14th Amendment's declaration that all Americans should enjoy equal protection under the law, and receive due process of the law before losing any rights. The Supreme Court stepped in to try to make sure that all Americans were treated equally before the law. Going into the 1980s, however, there was a growing and energized conservative social movement that disagreed with the Supreme Court expanding rights.

Grace: 00:02:58

To move forward, they needed to inspire others to their way of thinking, and they needed to explain it in a simple talking point. So how do you do that? You create teams and you give them names. So they crafted the term judicial activism. Cue Ronald Reagan. He was adamantly against judicial activism and once in office he was determined to roll back the process of what he called legislating from the bench.

Grace: 00:03:28

In his eight years, he packed the courts with judges who believed in a strict interpretation of the Constitution and family values, as he called them. He said they would not make law, but simply follow it. Reagan's attorney, General Edwin Meese, said that the idea was to institutionalize the Reagan Revolution so that it couldn't be set aside no matter what happens in future presidential elections.

Grace: 00:03:56

Reagan appointed Antonin Scalia, who was a self described originalist, which now could be interpreted as the opposite of a judicial activist. He set the stage for the Supreme Court to become political. Justice Stephen Breyer was an intellectual counterpoint to Scalia. Breyer countered originalism with his own interpretation of the Constitution called active liberty.

Grace: 00:04:23

He said the justices should approach constitutional questions by starting at the beginning. What did the framers intend for the Constitution to do? Their central goal was not simply to protect liberties like free speech or gun ownership. The goal was to promote democracy. All court decisions, he said, should take into consideration what conclusion would best promote democracy.

Grace: 00:04:49

Breyer thought that the law should change based on what voters wanted, so long as the majority did not abuse the minority. Every decision was complex, he said, and nuanced. And at the end of the day, justices should throw their weight behind whichever decision was more likely to promote democracy. That idea recognized the changing necessities of the modern world and is firmly rooted in the idea that the point of the Constitution was to anchor a nation in the voice of its people.

Grace: 00:05:21

So let's look at the differences between the ideologies. Judicial activism or active liberty. It's a philosophy that the courts can't and should go beyond the written words of the Constitution to consider the broader societal implications of a decision. It's a belief that the Constitution is a living, breathing document that evolves and adapts to new circumstances as our society changes and progresses.

Grace: 00:05:49

It continues to modernize the document. In contrast, Originalism is the belief that if the writers of the Constitution couldn't have envisioned the issue when it was adopted in the late 1700s, Then it doesn't apply, that judges aren't meant to find rights that didn't exist when the Constitution was written.

Grace: 00:06:09

It's fundamentalism. Think about all of the people that didn't have rights when the Constitution was written. So to Antonin Scalia, And now, the current six originalist judges that sit on our Supreme Court, issues like same sex marriage, abortion, LGBTQ rights, they were not addressed in the Constitution.

Grace: 00:06:30

So they don't believe that the justices should be deciding on them. These types of issues to an originalist should be decided by the individual states. Did you follow that? States rights is directly linked to the originalist theory. When you apply these two ideologies, the outcomes, as you can imagine, are vastly different.

Grace: 00:06:54

Both of the last two Republican presidents, Bush and Trump, have lost the popular vote, and yet each nominated multiple Supreme Court justices, two for Bush and three for Trump. These justices have been confirmed. by the votes of senators who represent a minority of the American people. In November of last year, the Supreme Court released a code of conduct for themselves, although it is only enforced by them.

Grace: 00:07:23

A Supreme Court seat is for life. I'll leave you with this from Ruth Bader Ginsburg. Fight for the things you care about. Do it in a way that will lead others to follow you. That's all this stew for today. Talk to you next week. Frogmore Stew Podcast is written and hosted by Grace Cowen Editing and IT support by Eric Johnson, produced by TJ Phillips with the Podcast Solutions Network.