Popular Sovereignty, the Executive, Congress, and SCOTUS: Battle for Supremacy (Part IV)

It may appear as if Congress and State laws are more responsible for upholding civil rights than the Court, but that is not entirely true. Congress passed the Fugitive Slave Act of 1793 even though it had no authority to do so. In Loving v. Virginia (1967) the Court correctly invalidated any state statutes which banned interracial marriages. In United States v. Lovett (1946) the Court held that an amendment attached to an appropriations bill in 1943 was unconstitutional because it violated the Bill of Attainer Clause. In this amendment, Congress withheld payment to certain government officials because they did not like their opinions. The Supreme Court ruling reinstated their pay, but the damage had been done because they had lost their jobs. In the famous Jencks v. United States (1957) case, the Court held that defendants were entitled to access of government files pertaining to their case. This time Congress acted with the Jencks Act to limit information a defendant may obtain (especially files with classified and national security information). Many would argue that Baker v. Carr (1964), Griswold v. Connecticut (1967), Eisenstadt v. Baird (1972), Roe v. Wade (1973), UC Berkley v. Bakke (1978), Grutter v. Bollinger (2003), Lawrence v. Texas (2003), Romer v. Evans (2007), and Obergefell v. Hodges (2015) are critical civil rights cases where the Court sided with individual rights. However, in all these cases the Court has gone over the top to invent protected groups, legalize reverse discrimination, and invent fictitious fundamental rights. The Court is trying to make up for past injustices by stomping on the Constitution. For instance, many will argue that some of the above cases violate the religious rights of tens of millions of Americans. Baker v. Carr violates the rights of rural farmers at the expense of urban dwellers. Bakke and Bollinger institute reverse discrimination practices as Constitutional. Inventing or creating rights for one at the expense of another is never the answer and it violates the equal protection clause of the Constitution.

Of course, there are cases where both Congress and the Court were complicit in violating the rights of citizens: Schenck v. United States (1917, free speech), Buck v. Bell (1927, sterilization), and Korematsu v. United States (1943, internment) to name a few of most egregious cases. In Red Lion Broadcasting Company v. FCC (1969), the Court upheld the FCC’s “Fairness Doctrine” requiring equal time for points of view on the radio violating the First Amendment rights of broadcast stations. The Court’s ruling in Miami Herald v. Tornillo (1974) contradicted the Fairness Doctrine by holding newspapers did not have to provide equal time to editorial opinions. By 1987, the FCC finally abolished the Fairness Doctrine realizing it was unconstitutional and a violation of the First Amendment. Article I, Section 9, Clause 7 states “A regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Up until WWII, the government had done a fairly good job of being transparent about its expenditures with the American public. However, that changed, especially for intelligence departments. For example, the Central Intelligence Act (CIA) of 1949 made unvouchered and covert funding possible. The law was challenged several times for violating the Statement and Account Clause, but in United States v. Richardson (1974), the Court held Richardson had no standing to file suit. The Court said that since Richardson did not know how the money was being spent he had no standing. But that is a Catch 22. How could Richardson know how the money is being spent if Congress refused to adhere to the Statement and Account Clause and publish how the money is being spent? The Court also ruled that Richardson faced no injury because of the CIA statute, he therefore had no standing. But again, without knowing how the money was being spent it was impossible to say if Richardson faced injury from the CIA statute. The Court side-stepped the issue and protected Congress’s violation of the Statement and Account Clause by letting them withhold information from the public.

Standing to sue is the most popular of several legal scenarios where the Court may forgo deciding a case. Other scenarios include mootness, ripeness, and political questions. For someone to have standing to sue there must be a real injury or threatened injuries from allegations. In Frothingham v. Mellon (1923) the Court denied a taxpayer citizen the right to sue the federal government over appropriations to states for maternal and infant care (the claim was it violated the Tenth Amendment). The Court reasoned since the taxpayer’s contribution to the programs were minute and infinitesimal he faced no injury. Compare Frothingham to how the Court ruled in Wickard v. Filburn in 1941 where a farmer was denied the right to grow extra wheat on his farm to feed his family. The Court said even though the amount of wheat was small, it nevertheless impacted interstate commerce. In other words, government rights in Wickard and Frothingham were more important than individual rights. In Flast v. Cohen (1968) the Court incorrectly interprets the Establishment Clause to allow citizens the right to sue the Federal government to deny public funding for religious education. Flast is an outlier, because in Valley Forge College v. Americans United (1982) the Court held citizens could not sue the Federal Government for allowing federal property to go to a Christian college. In Allen v. Wright (1984) the Court held citizens have no standing to sue a government agency based on influences that agency may have on third parties. Yet, the Court routinely interferes over state matters that may affect a third party religious cause. In FEC v. Akins (1998) the Court held citizens could sue if a violation of federal law neglected them access to information. In Akins, unlike Richardson, the Court allowed citizens to sue the FEC to obtain campaign finance information. An interesting third circuit court ruling in New Jersey Physicians v. Obama (2011) found New Jersey physicians failed to show any injury to sue the President over the Affordable Care Act (ObamaCare). However, in Obergefell v. Hodges (2015, gay marriage case), none of the plaintiffs faced an injury: they were not fined or imprisoned but the Court did not see it that way. The liberal sect of the Court was eager to make a Landmark political statement and legislate from the bench.