How did flag burning become a protected act of free speech? Did the United States v. Nixon determine that the President can't, basically, act like a king through executive privilege? Are corporations people? Let's take a look at some U.S. Supreme Court cases that changed America in profound ways.
After you listen to this episode of A User's Guide to Democracy on Unknown History, quiz yourself on your knowledge of landmark Supreme Court cases for a chance to win a copy of the book! (Enter by Sunday, October 4, 2020.)
Today, we're all about opinions—not yours, not mine, but the U.S. Supreme Court's. We've got a whole chapter in our book of landmark Supreme Court decisions and the ramifications. But we're just going to give you the nuts and bolts of a scant few today.
Marbury v. Madison established judicial review
The Supreme Court case that defined what the supreme court can do was Marbury v. Madison, decided in 1803. If you take one thing away today, it's that this decision established what's called "judicial review," which means that it's the Supreme Court's job to interpret the constitution and decide what is and what is not constitutional.
Alright, let's set the scene.
1800. John Adams, second president, lover of hard cider, loses the 1800 election to Thomas Jefferson. And Adams is in what we call the lame-duck presidency, that time between when a new president is elected and when they actually take office. And it's a big chunk of time.
John Adams doesn't just sit there with his head in his hands. He and his federalist Congress go crazy trying to pack all the courts in the United States with federalist judges.
Jefferson doesn't move into the presidency until March 4, 1801. So, John Adams doesn't just sit there with his head in his hands, wondering what went wrong; he gets to work. He and his federalist Congress go crazy trying to pack all the courts in the United States with federalist judges.
They passed the Judiciary Act of 1801, based on the Judiciary Act of 1789, which gave them the power to do this. By the time Jefferson is sworn in, they'd appointed 16 Circuit Court judges and 42 justices of the peace. These were called the "midnight judges." These judges were sent commissions, which are letters confirming their new post, and not all of them got delivered in time. One justice to be, William Marbury, waited and waited for his commission to arrive and it never did.
And oh, how Marbury wanted that little commission. And he never got it.
So Marbury petitioned to the Supreme Court. He asked for the court to order a writ of mandamus to force Jefferson's Secretary of State, James Madison, to deliver it to him.
So did he get? Well, he should have. Chief Justice John Marshall ruled that, yes, it was illegal for Madison to not deliver Marbury his commission.
But, and here's the kicker, then Justice Marshall wrote that the 1789 Judiciary Act, which was expanded by Adams to get all these judges in that act, was unconstitutional. And therefore Marbury never gets to put on the robe.
This was the first time that the court ruled that something was unconstitutional. But that's not a power listed in the Constitution.
This was the first time that the court ruled that something was unconstitutional. But that's not a power listed in the Constitution. The Supreme Court, in doing so, gave themselves the power.
And while it is the first case you learn about in any government class, because it created judicial review, if we're honest, nobody really cared that much about it at the time. And it would be another 50 years before the court again found a law to be unconstitutional.
The United States v. Nixon determined the reach of executive privilege
Let's want to pivot to another Supreme Court case that also got the executive branch involved and clarified how power works at the highest levels in American government. Except this one went down in 1974. We're talking the United States v. Nixon.
Yes, the long wake of the Watergate scandal.
Very briefly, in the unlikely event that you've never heard of the Watergate scandal: It's June 17, 1972. Five Guys are found burglarizing the Democratic National Committee (DNC) headquarters in Washington DC. And it turned out they were connected with the reelection campaign for the president, Richard Nixon. It also turns out that Nixon might have some recorded phone calls related to the break-in. By the way, the first special prosecutor assigned to investigate this case was fired by Nixon. Not exactly subtle.
The first special prosecutor assigned to investigate this case was fired by Nixon. Not exactly subtle.
So, Nixon fires a guy named Archibald Cox. But the protests are so bad in the wake of this firing that he has to hire someone to replace him. The replacement's name is Leon Jaworski, and Jaworski is wise to the existence of the President's taped phone calls. He subpoenas them. The President tries to get by with some edited transcripts and Jaworski's like, No, that's not gonna fly. So then Nixon's lawyer asks the DC Circuit Court judge to quash the subpoena.
And, an illuminating bit of color here: When Nixon's lawyer goes before the circuit court, he says that the President wants him to argue that he is as powerful a monarch as Louis the 14th, except only four years at a time, and that the only court he is subject to is the court of impeachment.
So basically, By the way, Judge, the President thinks he's kind of a king.
When Nixon's lawyer goes before the circuit court, he says that the President wants him to argue that he is as powerful a monarch as Louis the 14th, except only four years at a time.
And in the United States, we would water that down and say the President has "executive privilege," which, in Nixon's thinking, means that the President can withhold anything he darn well pleases.
And this is what the whole Supreme Court decision ends up hinging on. That DC Circuit Court denies Nixon's request. So both Nixon and Jaworski take the case to the Supreme Court, and the court rules that, okay, yes, executive privilege certainly does exist—it exists pertaining to sensitive military and diplomatic issues. But the President cannot claim executive privilege if that means getting in the way of due process of law and the administration of justice.
In other words, hand over those tapes, Tricky Dick.
The case defined and explicitly limited the notion of executive privilege, which, by the way, doesn't exist in the Constitution.
But it's not just that. The case defined and explicitly limited the notion of executive privilege, which, by the way, doesn't exist in the Constitution. It's just something that has been evoked since the beginning of the presidency in the United States—this concept of the executive can withhold information pertaining to national security or if it's in the public's interest for the President to do so. This case ends up saying, Okay, yes, national security, public interest, but not if it gets in the way of swift justice.
Texas v. Johnson made flag burning a protected act of free speech
My next case also deals in a roundabout fashion with the President. It's about a guy protesting the president in a very specific way—by burning a flag. We're talking Texas v. Johnson.
There are a few reasons we love this case. The first is that it's one of the few that actually expands the First Amendment rights of Americans. And the second is that the audio of the argument is so entertaining. You should always remember that advocates in the Supreme Court are smart, sometimes funny individuals who are trying to convince the Justices of something. So, they can be charming and persuasive.
But the facts of the case are that Gregory Lee Joey Johnson, protesting the nomination of Reagan to the Republican National Committee (RNC) in Dallas in 1984, burned an American flag. He was fined two grand and sent to prison for violating a Texas statute.
At the time of this case, 48 states had laws prohibiting the abuse of the American flag.
Johnson appealed in the circuit court and won that appeal. So, Texas petitioned the case to the Supreme Court. As a side note, there are several fascinating cases about respecting our patriotic emblems like the flag and the Pledge of Allegiance. And this one is the biggest of them all because, at the time of the case, 48 states had laws prohibiting the abuse of the American flag.
And because this is a First Amendment case, they first have to decide whether or not burning a flag is "speech." And then whether it is protected.
The court reasons, in a narrow five to four decision, that freedom of speech adheres to the message being communicated, not the way the message is conveyed. And there's not a much clearer message than burning a flag. And since then, dance, painting, a Facebook like, and even silence can be regarded as speech and therefore protected.
The great line in the opinion is Justice William J. Brennan saying:
We do not consecrate the flag by punishing its desecration. For in doing so, we dilute the freedom that this cherished emblem represents.
However, we'll add that this debate is not yet over. Congress has attempted to pass—and came very close to getting through—a flag protection amendment, which would, because it would be in the constitution, override this court ruling.
Citizens United v. the Federal Elections Commission is the reason we have super PACs
The last one here is notoriously difficult to really explain the nuances of—Citizens United v. the Federal Elections Commission (FEC). So I'm just going to start with the ending. This case is basically the reason that we have super PACs or super political action committees.
The term is everywhere these days. And all you need to know is that a political action committee is a tax-exempt organization where members donate funds to influence campaigns. A PAC cannot contribute directly to a campaign, but it can finance travel, polling, and other technically non-campaign-related things. They cannot accept money from a union or corporate treasuries, and the funds they accept are limited.
A super PAC isn't allowed to coordinate with a campaign staff at all. But they can accept money from unions from corporations, and they can accept money without limitation.
So that's a PAC, but a super PAC—well, a super PAC isn't allowed to coordinate with a campaign staff at all. But they can accept money from unions from corporations, and they can accept money without limitation.
Yeah, so a super PAC is only allowed to work in the margins to advocate for what they want, but they can't coordinate with campaign staff about it. They can make ads, mailers, and what have you to influence an election, and they do so with hundreds of millions of dollars.
They are allowed to do this, in part, because of Citizens United v. the FEC. So here are the facts.
A conservative nonprofit called Citizens United makes a movie that's critical of Hillary Clinton, and they want to air it shortly before the 2008 election. This would have been in violation of the Bipartisan Campaign Reform Act, which prohibits nonprofits, including corporations, from airing ads that name a candidate within close proximity of an election. Citizens United files a complaint in a district court, and that motion is denied. So they appeal it to the Supreme Court.
Now, this is a split decision—five to four. The majority argues that basically, this corporation has a First Amendment right to free speech; that political speech, regardless of whether it comes from a person or a corporation, is vital to American democracy; that the government cannot restrict independent expenditures advocating for or against a candidate, so long as those expenditures are not made in partnership or coordination with that candidate.
The Supreme Court ruled that corporations, in certain cases, are people.
Basically, corporations and unions can spend unlimited funds in support of their political agenda because they have a First Amendment right to do so.
This, along with several other Supreme Court decisions, is both highly controversial, and absolutely crucial to our political, economic, and legal system. Because it establishes that corporations, and enjoying First Amendment rights, have some of the same legal rights as individuals in the United States.
In other words, corporations, in certain cases, are people.
Supreme Court decisions can be reversed
One last thing I want to add is that Supreme Court decisions are not permanent. Here are four rulings that were reversed because the Supreme Court made a mistake: Scott v. Sanford, Plessy. v. Ferguson, Lochner v. New York, and Korematsu v. the United States.
But that recognition that the court had made a mistake was never immediate. It took years of reflection for the court and Congress and historians to come to that conclusion. So what a Supreme Court precedent today just could be anti-canon tomorrow.
That may be a somber note to end on, but an apt one.
An excerpt from "A User’s Guide to Democracy: How America Works" by Nick Capodice and Hannah McCarthy, illustrated by Tom Toro (Celadon Books, 2020)
Supreme Court Cases Everyone Should Know