In the introduction to his book entitled “The Supremes’ Greatest Hits”, Michael G. Trachtman points out that the in addition to having the authority to interpret statutes, the Supreme Court serves as the ultimate interpreter and protector of our most fundamental rights – the rights set forth in the constitution. 

        He goes on to express these thoughts: 

        “The framers of the Constitution drafted a document that was definitive in many respects, but also sufficiently vague so that it could be applied to unimaginable, changing circumstances.  They knew that things would change – as, of course, they did:  no one could have anticipated the industrial revolution, or the aftermath of slavery, or World War II, or the Internet.  They needed a mechanism to breathe continuing life into the Constitution.  They needed, and therefore created, the Supreme Court.

         The goal of the present Supreme Court is “to determine what a group of eighteenth-century scholars, farmers, businessmen, soldiers, and politicians really meant by the words they wrote, and what they would have done if faced with a twenty-first century that they could not have hoped to envision.

        “The Court also “has the authority to decide that any act of a government official, and any law passed by a government body, violates the Constitution and is therefore invalid and of no effect.  This power, termed the power of ‘judicial review’ is virtually limitless.  It encompasses the right to void the decisions of township officials, mayors, governors, and the president of the United States.  It includes the right to strike from the books any township ordinance, state law, or Act of Congress.  Supreme Court justices are appointed for life and, therefore, do not have to worry about making the popular decision, as opposed to the right decision.  They can just say no.”

        With those thoughts in minds, I’ve summarized several more of the cases reviewed in Trachtman’s book.

         1) Van Orden v. Perry and 2) McCreary County, Kentucky v. ACLU of Kentucky – The Ten Commandments Cases:  Religion in the Public Square 2005 – In these cases, the Court revealed the boundaries that would be drawn between church and state in the years to come.  The Van Orden case from Texas revolved around a 6’ monolith of the Ten Commandments among a display of religious and secular influences and was adjudged to have passed the “lemon test”.  That meant that its primary effect neither advanced nor inhibited religion.  It was therefore approved by a 5-4 vote.

        A display of the Ten Commandments in two county courthouses in Kentucky, however, was not approved and the display had to be removed. It was determined that it  had been placed there as an endorsement, as there was no secular reason.  The vote was 5-4.

        Trachtman points out that the “lemon test” may not stand the test of time, and the stage has been set for further very difficult rulings. Among them will be decision on whether government grants that support “faith-based” organizations will be considered to be constitutional, challenges to the phrase ‘under God’ in the Pledge of Allegiance that school children are often required to recite, and the teaching of ‘intelligent design’?

        The question is “where, exactly, will the line be placed in the church-state conundrum and which side will be favored.”

         Buckley v. Valeo – Campaign Finance Reform – The First Amendment guarantees free speech that is used in running for office and such campaigns take a lot of money.  In this case, the Court invalidated any laws that restrict how much a candidate spends of his own money for that purpose.  At the same time, the court ruled that the same is not true in terms of political contributions.  They can be limited by the government.

        McConnell v. Federal Election Commission – The decision in Buckley v. Valeo opened the door for the Bipartisan Campaign Reform Act (BCRA) by Senators Buckley and McCain. It provided for “soft money” contributions to be made to a political party or an organization that promote candidacies.  The Court upheld its constitutionality and allowed Congress to regulate such contributions. The vote was 5-4.

         Davis v. FED – Can an election be bought? – In regulating contributions, Congress came up with what has become known as “The Millionaire’s Amendment” whereby a candidate can spend as much as he wants on a campaign, but when those expenditures reach a certain level, the opponent’s donors were to be  permitted to contribute more than BCRA would allow.  The amendment was challenged in Davis v. Fed, and, as the composition of the Supreme Court had changed, and by a vote of 5-4, it was ruled to be unconstitutional.

        District of Columbia v. Heller – In considering whether we have the right to carry a handgun, the language of the Second Amendment must be considered:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.  Trachtman points out that “for decades, justices have disagreed over its basic meaning.  The dispute centers on how the two clauses fit together.”  Does it mean that there is a right for a militia to bear arms or is that a right that people have?

        In 2008, the case was opened.  D.C. had become “the murder capital of America” and the district had outlawed all handguns from homes and required that rifles and shotguns could only be kept in homes if they were unloaded, disassembled, and bound by a trigger lock.  Heller, a security guard, had registered a handgun and wished to keep it in his home for self-defense.  He had been turned down.  By a vote of 5-4, the Court concluded that the ban on possession of lawful firearms in the home violated the Second Amendment.

        Trachtman has written that issues of gun bans and gun controls “will be decided by future courts in future cases through the same exquisite ballet that has shaped our right of free speech, or religious rights, our rights to be free from unreasonable searches, our rights of equal protection and due process, and all of the other rights that define so much of America.”

         The question of whether government has the right to regulate private business came up in this 1937 decision. State legislatures were enacting measures such as child labor laws, maximum hour laws, and workers compensation laws, and conflict arose when New York came up with a law limiting the work week to a maximum of sixty hours in certain industries.  In a 1905 ruling known as Lockner v. New York, the Court had ruled that laws “limiting the hours in which grown and intelligent men may labor to earn their living” are “mere meddlesome interferences with the rights of the individual”.

         That ruling was unchallenged until it curbed Franklin D. Roosevelt’s economic recovery plan that involved implementation of health and safety codes.  When the Court began to dismantle what he’d done, he was considering a “court-packing plan” when a decision in the case of West Coast Hotel Co v. Parrish was handed down.  The case involved the constitutionality of the state of Washington’s minimum wage laws, and as the Court had overturned similar laws, it appeared they’d do the same, but at the last moment – by a 5-4 vote – decision was made that created the basis for national minimum wage laws.   

         Standard Oil Co v. United States - Trachtman asks us to “Think what things would be like if there were only one or two cell-phone providers, pharmaceutical firms, or automobile companies….If there were only one or two companies in these fields, the incentive to innovate new and better products at cheaper prices would not be nearly as intense – and the consumer would suffer.”

        Antitrust laws, enacted by Congress, preserved competition, but it was the Supreme Court that put the laws into action. In 1911, The Standard Oil company, founded by Rockefeller was a monopoly that combined the nation’s oil refining and distribution capabilities under one roof, and the government brought suit under the Sherman Antitrust Act thereby requiring it to break up into separate, competitive units.

        That was followed by the case of United States v. Trenton Potteries Co in which the Court ruled that “price fixing agreements among competitors are by definition an unreasonable restraint of trade, whether or not the levels at which prices were fixed were or were not reasonable.”

         Kelo v. City of New London – Trachtman comments that “The concept of the government taking your house because it wants to use your property for some other purpose is frightening to contemplate.  However, even before the Constitution was drafted in 1787, it was a given that a sovereign nation had this power of “eminent domain” or “condemnation”.

         Susette Kelo had purchased and restored a home in the Fort Trumbull area of New London, Connecticut.  The city’s economy had been floundering and Pfizer was involved in expansion that would involve purchase and demolition of Fort Trumbull homes.  Fifteen owners refused to sell, and Kelo’s suit was based on the fact that private property can be taken for “public use” but that the land involved was for a private business.  The Court ruled 5-4 in favor of New London on the basis that the meaning of the phrase “public use” also included projects pursued for a “public purpose” and the proposed expansion of Pfizer would do just that.

        Monroe v. Pape – Thirteen Chicago police officers had broken into the Monroe’s home in the early morning without a warrant, made the family stand naked in the living room while the house was ransacked. The case reached the Supreme Court where a ruling was made that individuals have the right to bring lawsuits for “misuse of power” by state officials who are “clothed with the authority of state law”. The ruling was later extended to also cover federal officials.

         United States v. Nixon – The Watergate Scandal – During Nixon’s 1972 presidential campaign, five men with cameras and listening devices were arrested inside the Democratic Nationl Committee’s offices located in the Watergate complex in Washington.  Many of us will remember the publicity about this event, as the men were linked by reports in the Washington Post to Nixon’s re-election campaign.

         President Nixon tried his best to refuse requests to deliver tapes to the special prosecutor in charge of the case, as they would disclose his connection to the burglary, but a court order to that effect eventually reached the Supreme Court.  His attorneys used a defense of “executive privilege” – stated that the President wasn’t subject to the processes of any court in the land except the court of impeachment.  The Court disagreed, “ruling that a president is not above the law, and, when faced with a subpoena issued to obtain evidence in an investigation of national importance with criminal implications, he must comply, as must any other citizen.”  The case resulted in Nixon’s resignation.

         Boumediene v. Bush and Al Odah v. U.S. – In the conduct of a war, the Constitution establishes that the President in the Commander in Chief and that Congress is in charge of wartime funding and oversight.  A question still remained as to whether the Supreme Court had the right to look over the shoulders of the president and Congress at such times. 

        After 9/11, the Bush administration rounded up many suspected terrorists and their net included many people “who had done little more than occupy the wrong place at the wrong time”.  According to the Geneva Convention, those who claim not to be enemy combatants are to be given a full hearing including due process.  The Bush administration, however, claimed that they were not enemy combatants, as in the present type of war it is difficult to tell terrorists from bystanders.  Full-scale hearings under the Geneva Convention were therefore not justified.

        Legal challenges began soon after decision was made to jail them at Guantanamo.  The Supreme Court ruled in Rasul v. Bush that American officials “could not lock up foreign detainees whether in the United States or in Guantanamo, without some demonstrated reason, and that the foreign detainees had a right to a reasonable military commission hearing so they could challenge the accusations being made against them.

        As a result, the Bush administration (along with many in Congress) parried that thrust by initiating military-run “combatant status review tribunals” (CSRTs) to satisfy legal requirements.  The CSRTs, however were one-sided proceedings, held in secrecy “in which the detainees were given virtually no rights to review and confront what whatever evidence the military chose to present against them.

        In a case known as Hamdan v. Rumsfeld involving Osama bin Laden’s driver, the Court ruled that the CSRTs must comply with the Geneva Convention which mandated hearings that included a meaningful right to challenge and present evidence. In short, it was stated that “the executive branch is not free to disregard Congress except in the face of truly exigent circumstances and there was no proffef that national security would be compromised if the detainees were afforded a fair hearing”.

        Congress then passed the Military Commissions Act that added a bit more due process, but essentially left the Bush administration’s system intact.

        The cases of Boumedience and Al Odah focused on the constitutional right of “habeus corpus” and the Court ruled that the “Constitution’s reach was limited by neither geography nor war, and it does not allow the government to imprison anyone, citizen or noncitizen, in war or peace, domestically or abroad, without the basic due process civilized societies recognize as being elemental to any meaningful effort to find the truth. The detainees did have a habeus corpus right.

        Trachtman comments that “Contrary to some reports, the decision does not mean that the Guantanamo detainees must be released; it means only that they (and other detainees, no matter where held) are entitled to a hearing, including the basic rights and safeguards Americans take for granted, for the purpose of determining whether they are enemy combatants or innocent bystanders.”

        I’ve written more about this issue than the others, but can’t resist adding four more paragraphs from Trachtman’s book in which he asks readers to consider why he wrote about this issue in a book that focuses on Supreme Court cases that affect our lives. He wants us to consider the question on two levels:

        “First, in the coming years, few things may affect the lives of Americans more than the success or failure of our efforts to defeat international terrorism. A keystone of those efforts has been measures designed to win the so-called “hearts and minds” of the populations in which terrorism flourishes by convincing them that democracies in general, and America in particular, respect individual freedoms and promote justice. The message is that there is a better way, our way. But many analysts believe that institutions like Guantanamo have inexorably eroded our credibility by displaying to the world that in reality we do not practice what we preach: rather than standing for fundamental liberties and human rights, Guantanamo has allowed our adversaries to convincingly portray us as a society that incarcerates individuals on the basis of mere suspicion without a meaningful effort to determine if that incarceration is warranted.

        He asks, "Will the fact that we will now afford the detainees full and honest due process hearings, and that we will close Guantanamo, change that perception and elevate our standing among those we seek to influence? Will whatever salutary effects the decision produces be counterbalanced by the release of dangerous terrorists, or by the extent to which it may hamstring the military’s effort to obtain crucial intelligence and take terrorists out of circulation? There is, of course, no way to know, and much will depend on the related policies adopted by future administrations.

        "But both the Supreme Court majority and the minority agree on this: the decision represents a sering rebuke of the way both the executive and the Congress have conducted themselves since 9/11, and it will have a major effect on how the government conducts itself in the future, for better (if you believe the majority) or worse (if you believe the minority).

        "Second, whether justified (as the majority contends) or unjustified (as the minority contends), the decision represents an extremely significant assertion of Supreme Court authority in respect to the president and the Congress – some commentators, perhaps a bit overwrought, have called it the most significant redefinition of the balance of power in at least a half century. Will the Supreme Court’s refusal to yield to presidential or congressional judgments on national security continue? Will rulings on the constitutionality of “coercive interrogation techniques” and other tactics used in the war on terror be next? Will an emboldened Supreme Court expand its reach into other areas of international policy? Or are the Boumedience and Al Odah decisions an aberration that is limited to the unusual and extreme plight of some of the Guantanamo detainees?"

        Brandenburg v. Ohio – In the 1960s, Clarence Brandenburg, a Ku Klux Klan leader, invited a reporter to make a film of him in Klan regalia “threatening vengeance if the president, Congress, and the Supreme Court continued to suppress the white, Caucasian race” In the film, he also advocated sending all the blacks to Africa and the Jews to Israel.

        Back in the early 1900’s, Ohio along with 19 other states had a statute that made it a crime to advocate crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform” so he was arrested, and in response he started a suit. The Supreme Court invalidated his conviction by ruling that “mere advocacy” is free speech protected by the First Amendment. Only advocacy that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” can be restricted.

        In Conclusion.

        In summarizing many of these cases, they may have lost some of their original flavor. You’ll have to get a copy of the book to regain that, and in the process you’ll also be reading cases that I haven’t included as well as very interesting information by Trachtman about developments that may occur in coming years.

        As I wrote in Part I, I can’t recommend this book highly enough.