“The court has no troops at its command. It doesn’t have the power of the purse. And yet, time and again, when the court says something, people accept it.”
- Ruth Bader Ginsburg on NPR’s All Things Considered, July 24, 2019
Isn’t it odd how the fate of a major legislative act can hang on a single vote in a 5-to-4 Supreme Court decision? People accept it because we envision justices above the political fray, guided only by wisdom, precedent, and the Constitution. Their decision stands until a future court overturns it, perhaps again by a single vote.
Such cases were extremely rare in the 1800s and early 1900s.* Courts strove for unanimity and consensus, debating behind closed doors until they could speak with a single voice. The proportion of closely split decisions rose gradually after the 1930s. Brown v. Board of Education (1954) was unanimous; Roe v. Wade (1973), 7 to 2; Citizens United v. FEC (2010), 5 to 4.
I wonder if the rise in 5-to-4 decisions heightens the frenzy around each Supreme Court nomination. Focus shifts from the whole court to individual justices, and from their wisdom and experience to their potential vote on a given issue. Gamesmanship increases. “Settled law” begins to look provisional. Over time, might this trend weaken the court’s perceived authority and our system of checks and balances? Might it be better to defer judicial action until the argument for change is so strong, the evidence so overwhelming, that at least seven of the nine justices can agree?
*A single vote decided an annual average of only 2.6% of cases in 1901-1910, compared to 23% in 1981-1990. Robert E. Riggs, “When Every Vote Counts,” Hofstra Law Review, 1993.
My first case as a juror was a civil suit in federal court. The central question was whether police applied excessive force in using a stun gun to remove a noisy drunk from an icy rooftop after the neighbors complained.
Two lessons stay with me decades later. First, thinking you’re unbiased doesn’t make you so. I hope we all meant it when we promised we could judge impartially based on the evidence. As foreman, I wanted to throttle a juror who insisted whatever a cop said must be true, and another who said the same of any complaint against a cop. We took as many days to agree on a verdict as to hear the evidence.
Second, it’s not always as simple as yes or no. Could the police have restored neighborhood peace without the stun gun? Of the four who testified, we thought one had the skills to talk the guy off the roof. Unfortunately, that cop was down on the street. The less articulate cop on the roof, if he hadn't had the stun gun, might have gotten into a tussle in which he and the noisy drunk would have slid off the roof and broken both their necks.
Spain remained neutral in World War I. While combatants censored the press to sustain morale and hide any vulnerability, Spain had no such concerns. Spanish newspapers freely reported a raging influenza in May 1918 and the months that followed. The earlier cases recorded at Fort Riley, Kansas, in March got no publicity. Americans and others, hearing nothing but reassurance from their own governments, took Spain to be the epicenter.
No one knows for certain the birthplace of the “Spanish flu” of 1918-19, which killed more people than the war. The Spanish called it the French flu. Germans called it Flanders fever. It spread fast, and everyone blamed somebody else.
For Americans, calling the epidemic “Spanish” fits a long, unsavory linkage of germs with foreigners and immigrants. We had the Asian flu of 1957-58 and the Hong Kong flu of 1968-69. And then there was H1N1 or the swine flu of 2009-2010, first detected in a ten-year-old boy in California. Remember how everyone called it the American flu?
You don't? Neither do I.
In the Boston Tea Party of 1773, a rowdy mob of American colonists dumped a shipload of tea into the harbor to protest a new tax. Unruly demand for change is a deep-rooted American tradition. So is the call for “law and order” to defend the status quo.
Against wider suffrage. In Rhode Island in the 1840s, armed protesters demanded voting rights for all white men regardless of wealth. Opponents formed a Law and Order Party to preserve the old colonial charter, which allowed only men of property to vote.
Against abolition. “Bleeding Kansas” in the 1850s was awash in violence between pro-slavery and anti-slavery factions. A pro-slavery Law and Order Party accused its opponents of criminal fanaticism and met bloodshed with bloodshed.
Against alcohol. In the later 1800s and early 1900s, temperance sentiment was strongest among Protestants of English descent. Disdainful of beer-drinking Irish and German Catholic immigrants, they formed local Law and Order Leagues to enforce anti-liquor ordinances.
In each case, law and order won out in the short run. The expanded-suffrage leader in Rhode Island was sentenced to life in prison. Questioning the legality of slavery in Kansas could bring five years imprisonment. The 18th Amendment made Prohibition federal law. In the longer run, social change proved beyond the power of law and order to prevent.
I'm a historian who writes novels and literary nonfiction. My home base is Madison, Wisconsin.