The Evils of Supreme Court Democracy (Part III)

The Wilson era may have been the most racist time after the Civil War in American History. But all was not bad, in Bailey v. Alabama the Court held an Alabama law making it a crime subject to imprisonment for a person to quit a job after signing a labor contract and accepting a payment in advance as unconstitutional (servitude and hard labor was allowed in prisons). Of course, Holmes once again dissented (known as the Great Dissenter and of course as one of the great progressive liberal minds). In 1917 the case between Buchanan v. Warley the Court held a racially exclusionary zoning law in Kentucky unconstitutional because it violated the due process clause of the Fourteenth Amendment. In the ruling, although the Court rejected the police power rationale in the Plessy ruling, it did not invalidate the law because they still considered “equal but separate” non-discriminatory. Holmes was going to dissent, but for some unexplained reason he sided with the unanimous majority. In the 1908 case Muller v. Oregon the court held that an Oregon law limiting women to 10 hour work days was constitutional. Justice Louis Brandies concurred with the ruling summarizing the “physical differences between men and women” along with “scientific proof” submitted by dozens of male authorities on the issue. Brandies arguments were similar to those issued by Justice Bradley’s sexist and misogynist arguments in Bradwell. Upholding Muller despite its discriminatory nature made it more difficult for women to find work in Oregon. In 1919, the Court upheld the Espionage Act of 1917 in Schenck v. United States. Schenck wrote unpatriotic pamphlets about WWI and was convicted and sentenced to jail. The Court (Holmes) set the “clear and present danger” exception to the First Amendment and weakening our individual liberty for free speech. In 1927 in Buck v. Bell the Court upheld a Virginia law allowing intellectually challenged persons to be sterilized. Holmes this time wrote the majority opinion referring to the “living constitution” and modern science to declare that “three generation of imbeciles is enough” when referring to the Buck family. Carrie Buck was “lawfully” sterilized. Remember, a “living constitution” is one that is ignored or is dead. In the 1944 case Korematsu v. United States, the Court held that it was legal to intern Japanese-Americans following Pearl Harbor without due process of the law. The Bailey and Buchanan decisions were outlier rulings on Civil Rights during this period while Muller, Buck, Schenck, and Korematsu were more common decisions during this era since “legislative majorities guarantees that challenges by out groups will fail.” In other words, minorities like the Japanese race, blacks, the intellectually challenged, women, and communists are destined to lose to the majority factions of early twentieth century politics.

The due process clause of the Fourteenth Amendment would continue to be weakened by the FDR Court. In the 1934 case Nebbia v. New York, the Court held that New York State could regulate the retail price of milk protecting the big dairy companies over small mom and pop shops (obviously an arbitrary decision opposite to the Court’s reasoning in Lochner). The 1938 case involving the United States v. Carolene Products Company the Court began to set standards for applying the commerce clause (the Famous Footnote 4 case). While the Court used very low standards for economic issues, the Court applied higher standards for other laws affecting other areas of “commerce”. One standard was whether or not the law attempted to distort the political process and another standard was whether or not the law discriminates against a smaller minority groups (i.e. trying to minimize the power of majority groups or factions over smaller groups). Carolene Products lost this case because their healthier products were falsely deemed unhealthier than other milk products. Hence, the dairy lobby won this case using false information and denied Carolene products the same right to interstate commerce they enjoy (once again arbitrary). The Court ruled if it had a “rational” reason it could deprive a person or company of life, liberty, or property. The Supreme Court was making up rules (and using false data) to protect earlier New Deal decisions using substantive due process and the commerce clause. After all, siding with Carolene Products would set possible precedent to overrule FDR’s economic agenda. Carolene Products would be vindicated decades later. In a similar case decided in the Warren Court era in 1955, Williamson v. Lee Optical of Oklahoma the Court overturned a well thought out lower case ruling to uphold a law that denied Lee Optical the right to do what Lens Crafters performs today (once again an arbitrary decision). The Court said it did not have to contemplate all reasons for the law when making a decision, it merely had to decide if it was reasonable. In Reynolds v. Simms (1964) the Court said that state legislatures have to enact democratic principles of majority rule because it found republican principles held in the constitution to be unconstitutional. This was the famous “One person, one vote” case that said state legislature representation had to be based on population outlawing republican principles in the Constitution such as the Senate from being adopted at the state level. This law provided urban areas an unfair (discriminatory) advantage over rural areas.