The layman’s notion of judicial review is that the
Supreme Court can “invalidate” a state law which it determines to be
unconstitutional. Admittedly, this is the way newspapers report so-called
‘landmark’ decisions.
Judicial review is not limited to the United States
Supreme Court. Every court, from the lowest county traffic judge, has the same
power to determine whether a state law does or does not comply with the state
or federal constitution. If a court decides that a statute is unconstitutional,
it is the duty of the judge to decide the case as though the statute in
question does not exist.
That decision establishes the law of the case, and
unless appealed, it determines finally and irrevocably the rights of the
parties to the litigation.
The decision, however, does not determine the
rights of any other party. The Fifth Amendment to the United States
Constitution affirms that no person shall be deprived of life, liberty or
property without due process of law. Due process requires that a person be
given a fair hearing before he or she can be jailed, fined or ordered to do
anything by a judge.
In Brown v Board of Education, the Supreme Court
wisely overruled the case of Plessy v Ferguson and opined that the United
States Constitution is color blind, ruling that the twenty black children of
thirteen Topeka, Kansas parents were entitled to attend their local white
public school.
The order issued in that case affected those 20
children and only those 20 children. It was, however, clear to everyone that
the Supreme Court was of the opinion that public school segregation laws were
unconstitutional and that any state which would continue enforcing such laws
would face the obvious fact that their actions would be challenged in court,
and that the lower courts would almost certainly defer to the opinion of the
United States Supreme Court, unless there was some logical and significant
difference in the facts.
Applying the Brown rule in a nation of over 200
million people was not a simple task. Not only in the previously segregated
Southern States, but in densely populated Northern cities, the natural
tendencies of people to prefer neighborhoods having distinct racial or ethnic
character fostered de facto segregation in many neighborhood public schools.
As a result, a number of new cases were filed,
leading to a decision commonly referred to as Brown II. In it, the United
States Supreme Court ordered a number of State Attorney Generals to submit,
within a stated period of time, their plans for the desegregation of public
schools “with all deliberate speed.”
Brown II resulted in a complete reversal of Brown
I’s salutary finding that the Constitution is color blind. Quite the opposite,
Brown II required that students, both black and white, be assigned to schools
based on the color of their skin, in an effort to achieve statistical
integration.
The result was a period of more than a quarter
century of judicial activism in which federal judges ordered children
transported by bus long distances from their homes, ordered local taxes to be
assessed, ordered school bonds to be issued and ordered new school buildings
constructed.
Now, more than 60 years after Brown, more than 70%
of black school children still attend schools which are more than 50% black;
more than 30% of black children attend schools that are 90% black and about 15%
of black children attend schools that are 99% black.
Those statistics are not the result of any
organized effort at nullification. They are simply the consequence of a free
people in a free country making their own decisions for their own reasons.
Abraham Lincoln made it clear that the Supreme
Court makes the law of the case and not the law of the land. That is not
learned only in law school; it should be taught in high school civics. Article
III of our Constitution vests judicial power, and only judicial power, in the
nation’s courts. Courts are empowered to dispense justice on a case by case
basis. They are neither established nor equipped to make laws, amend laws,
repeal laws or order legislatures to change laws.
Whether a perceived landmark case like Obergefell v
Hodges will result in a significant change in American culture will depend on
the extent to which the people of the nation accept and act upon the Court’s
opinion. If state marriage laws are changed, a cultural tsunami could well
occur. If they are not changed, The Supreme Court will pursue a fool’s mission
if it attempts to mandate nationwide compliance with Obergefell one case
at a time.
