In answering Sen. Orrin Hatch’s partial birth abortion question, Supreme Court nominee Sonia Sotomayor described the Court’s abortion rulings as “settled law.” I offer a list of other cases that may, at one time, have been described as “settled law,” but have been changed by subsequent cases.
by Michael Naragon
In calling Roe v. Wade “settled law,” Sotomayor affirmed a woman’s right to choose based on the Supreme Court’s decision. Here are a few other Supreme Court decisions that, in the past, could have equally been called “settled law”:
Dred Scott v. Sandford (1857) – Against the backdrop of growing tension between sections of the United States, the Supreme Court ruled in the case of a slave who, having lived with his master in a free state for a period of time, wished to be considered a free man. The Supreme Court heard the case and ruled against the enslaved Scott. In his majority opinion, Chief Justice Roger Taney declared that Scott had no case because of his race.
“[Negroes] were not intended to be included, under the word “citizens” in the Constitution,” Taney wrote, “and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”
For a time, this was “settled law.”
Plessy v. Ferguson (1896) – In another civil rights case, Homer Plessy, a man of mixed race, was arrested for violating Louisiana’s Separate Car Act. Plessy had purchased a train ticket and sat in a car designated “whites-only.” He was promptly arrested and placed on trial for violating the state’s mandate. Lower courts found in favor of the state, and Louisiana’s high court confirmed their decisions, so the case was appealed to the Supreme Court.
In the majority decision, which ruled against Plessy, the Court established that racial equality did not necessitate racial integration. In the Court’s opinion, according to Justice Henry Billings Brown, the Fourteenth Amendment did not prohibit the government from making racial distinctions.
“The object of the [Fourteenth] Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”
Hence, the idea of “separate but equal” became “settled law.”
Korematsu v. United States (1944) – In yet another case involving race, the Court reviewed the case of an American of Japanese descent who had violated the order that confined all such citizens in California to internment camps. American citizens were collected and sent to the camps, their businesses and jobs given to others, simply because of their race. Korematsu, who was born in America, had tried to enlist in the military after Pearl Harbor but was rejected due to poor health. When the order came for all Japanese Americans to be removed, Korematsu tried to disguise himself to avoid internment. He was caught and arrested.
The Court, in its decision, affirmed the right of the federal government to single out an entire race in the interest of national security without trial or hearing.
“Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race.”
The lack of hostility toward the Japanese race seems hard to justify, given the wording of the quarantine order of the commanding officer of the Western Defense Command.
“The Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become ‘Americanized,’ the racial strains are undiluted. To conclude otherwise is to expect that children born of white parents on Japanese soil sever all racial affinity and become loyal Japanese subjects ready to fight and, if necessary, to die for Japan in a war against the nation of their parents.”
Once again, this, too, was once “settled law.”
Minersville School District v. Gobitis (1940) – When a 12-year-old Jehovah’s Witness and her brother were expelled from school for refusing to salute the American flag in a daily exercise, their expulsions were challenged in court. The Supreme Court heard the case and, in an 8-1 vote, upheld the right of the school district to expel students for religious conviction. In the majority opinion, Justice Felix Frankfurter wrote:
“That the flagsalute is an allowable portion of a school program for those who do not invoke conscientious scruples is surely not debatable. But for us to insist that, though the ceremony may be required, exceptional immunity must be given to dissidents, is to maintain that there is no basis for a legislative judgment that such an exemption might introduce elements of difficulty into the school discipline, might cast doubts in the minds of the other children which would themselves weaken the effect of the exercise.”
I am not, through this list, weighing in on my opinions of the right or wrong of the Court’s decisions through the years. I could have chosen any number of cases to illustrate the fact that the Court establishes “settled law” only to reverse itself years later. And while Judge Sotomayor may regard Roe v. Wade as “settled law,” does this mean that she would also regard the recent gun rights case of D.C. v. Heller as “settled law”? If so, why would she need to keep an open mind about the Second Amendment, as she claimed Tuesday?
Or is it that an open mind and “settled law” are far less important to Sotomayor than the so-called empathy for which she was selected as a potential Justice?
Supreme Court Transcripts and Decision Summaries can be found here.
