The Misinterpretations of the Supreme Court, with Ian Millhiser

April 20, 2015

Our guest this week says that the U.S. Supreme Court’s power to interpret the Constitution is so great that they can use it to justify nearly anything they please. Even the American founders who forged the Constitution often had differing ideas of how its words should be interpreted. But one thing they did not foresee was the Supreme Court having the final say over all constitutional interpretation. Ironically, the most unconstitutional practice that we have may be the Supreme Court’s absolute power to determine what is and is not considered constitutional.

This week Point of Inquiry’s Lindsay Beyerstein chats with Ian Millhiser, the author of Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted. Millhiser takes a close look at how the various Justices of the Supreme Court have behaved throughout history, and rather than being champions of equality and justice, he concludes that the Court has largely served to perpetuate inequality and hinder progress. Millhiser argues that the only positive contributions the Supreme Court has made were a result of historical accidents, and that the most productive times of legislation in America’s history were during periods in which the Supreme Court was relatively inactive.

It’s a sobering and critical look at the role of the Supreme Court, this week on Point of Inquiry.

This is point of inquiry for Monday, April 20th, 2015. 

Hello and welcome to a point of inquiry. A production of the Center for Inquiry. I’m your host, Lindsay Beyerstein. And my guest today is Ian Millhiser, author of the new book Injustices Blaming the Tyrannical Supreme Court is a mainstay of movement conservatism for everything from abortion on demand to filth on TV. Liberals tend to have a more positive view of the institution. They give us abortion, birth control and Miranda rights. Right. Ian argues that we should rethink the Supreme Court as a historic champion of the rights of the oppressed. Ian, welcome to the program. It’s good to be here. Thank you so much. You argued that the Supreme Court has largely been a negative influence on the United States. What do you think? 

So that’s what its history has been. You look at the long arm of the Supreme Court’s history. We had Dred Scott, which was a major pro slavery decision. We’ve ratified three constitutional amendments to get rid of Dred Scott. The court spent 30 years writing those amendments out of the Constitution. They then spent the next 40 years rewriting one of those amendments to say that employers could exploit their workers, not however they wanted, but they had a broad discretion to ignore laws that are intended to protect workers. And then for 20 years after that, nothing happened. The Supreme Court basically backed off entirely from monitoring what lawmakers were doing. One of the nothings that happened during that period was Korematsu, the Japanese detention case. And yet, even with cases like Wal-Mart’s Mitsou coming down, a period where the court was doing virtually nothing, that was the best Supreme Court we had had up to that point. By now, we’re going back to that pattern with the Roberts court striking down the Voting Rights Act, potentially new thinking, the Affordable Care Act and this, Kinkaid, they recently agreed to hear. When you look at the long arc of history, there is a period where the Supreme Court did some good. I argue in the book that was largely an historic accident. That happened because of a lot of unpredictable events that are unlikely to repeat themselves. But, well, almost all of American history, it’s been a very maligned force. 

No Supreme Court justices ever been impeached. 

Can you think of any who should have been or I mean, there actually is one precedent for justice being impeached and, you know, very early in the republic’s history. And it set the precedent that Congress will not throw out justices because of ideological disagreements. I don’t necessarily disagree with that precedent. You know, I think that it makes sense that when you have a branch whose job is to follow the wall and not just to make the law and to exercise discretion, that you want them to have the degree of independent. You know, one of the themes of my book, however, is that part of the fall in the court is actually a flaw in the Constitution. Our country is extraordinarily vague. It uses these phrases like privileges or immunities of citizenship or due process of law that don’t have very much substance to them. 

And that, in effect, delegated to these justices. Many of them have been very malign individuals. They essentially delegated them the power to breathe into those vague words, whatever they choose. So, you know, I don’t necessarily think that the solution is to change the balance of power we have between the branches. I think the solution, if I could rewrite the Constitution, would be to write it in a way that can find the justices more than they thought they then can find because they have shown that they can handle that power. 

The book starts in the reconstruction era. What was reconstruction and how did the Supreme Court undermine it? 

Sure. So, I mean, reconstruction was the period when we were moving to the south, had to be rebuilt, but the South also had to be brought into a more enlightened era where it no longer relied on human chattel in order to fuel its economy. And there were early decisions that took direct aim at reconstruction. There was a five to four decision shortly after the Civil War ended, which allowed people who had been high ranking Confederate officials to continue to practice in federal courts and, you know, to get a lot of their livelihood back that way. But the real thrust of the Supreme Court’s decisions in that area were essentially ignoring the Constitution’s guarantee of equal protection, allowing the South to put in place the predecessor should Jim Crow laws and often standing back when Southern racists engage in acts of terrorism. So I spend a lot of time at the beginning of the book discussing this. It’s called Cruickshank. Cruickshank grew out of a terroristic mob where a white supremacist essentially rallied a posse, got their guns and ran the black people in government and the people support of the black people. Government out of town and massacred many of the black people in the process. And the Supreme Court, when those folks were prosecuted, when the white folks were prosecuted, said, oh, that’s fine. We’re not going to let this case go forward. And they let them off. So in that way, the Supreme Court greenlighted decades of terrorism, which progressed growth of the courts. And, you know, if that Crookshank case had gone the other way, we could have had a very different world for the next 80 years because it would have been the court putting its foot down and saying, no, you do not get to use terrorism in order to maintain white supremacist rule. 

Some of those members of some of those white paramilitaries eventually went on to become Supreme Court justices themselves. Right. 

I mean, there are a lot of them went on to become, you know, very powerful. There are a number of senators, especially in the South, who are engaged in direct violence against African-Americans. The most interesting justice, though, you know, most interesting to me that I just got is Shuga Blacks. I alluded before that the war on terror, that the Board of Education at me with a lot of the progressive parts of the Constitution were revived, was an historic act that wanted the access that help that had struck the black was Alabama senator, was a member of the Ku Klux Klan. He’d been a lawyer and a vicious racist. He defended Klansmen murdered in one case who murdered a Catholic priest, the Catholic priest marry the Klansman daughter to a Puerto Rican man. He was heavily involved in the most racist elements of Alabama society. And when he got on the court. That’s what most people expected him to be. He wound up becoming a champion of racial justice. He was one of the first queerest votes in favor of Brown v. Board of Education. He not with 100 percent record, but fairly consistently voted the right way. In civil rights cases. So it was a series of accidents like that of Klansmen becoming a champion of civil rights that led to the period when the Supreme Court actually did some good in the world. You know, I wouldn’t want to roll the dice on that. And that that was something like that would happen again. 

Do you think he became less racist or he ended up siding with civil rights for other reasons? 

There is a spin on Hugo Black that I think still paints him in a bad light, but doesn’t necessarily paint him in a racist light. And that’s just that Hugo Black. What, like being powerful? And when you were an Alabama politician, you had to be on the good side of the Klan if you wanted to get elected to the United States. And in fact, the Grand Dragon of the Klan was his de facto campaign manager and one of his races when he got on the Supreme Court. He had a lifetime appointment and he no longer had to pretend, you know, in order to get ahead. So I don’t know if that necessarily paints him in a favorable light. He may not have been a racist. He may have just been someone who was willing to make friends with whoever he had to make friends with to get into power. At the end of the day, though, he didn’t have to be a good man because he cast the right votes. And it led to things like Brown. It led to his big project when he was a Supreme Court justice was he believed that every right in the Bill of Rights should be enforced against the states and the federal government. You know, believe it or not, it wasn’t until the late 20th century that that became the law in this country that state governments couldn’t just violate most of the Bill of Rights whenever they wanted. And Hugo Black made it his project to make that happen. So, you know, I don’t know if he was a good person. I think there’s a lot of evidence that he was a very bad person, but he was a very good justice because he cast the right votes. 

The reconstruction amendments, the 13th, 14th and 15th Amendments were clearly designed to put the United States on a more equal footing after the end of slavery. But conservatives on the Supreme Court and in society at large came up with some pretty bizarre interpretations of what the 14th Amendment really meant, right? 

That’s right. 

I mean, you know, the dark ages, I mean, darker even than the post reconstruction hour or when the Supreme Court was allowing Jim Kuroda’s has come to life, the dark ages in the Supreme Court’s history. It’s what’s often referred to as the Lochner era. This is a period that even though Lochner is the name of a case that was decided in 1985. But the lochner really began in the late eighteen hundred. And that’s when the Supreme Court would strike down labor laws. They would strike down walls of workers to unionize. They could strike down minimum wage laws, maximum our laws and at the same time that they were doing this. What was so devious about black justices is they would say something that they’d write in an opinion that unions had nothing to do with commerce because, of course, unionized workers don’t ever engage in commercial activity. And so unions, they said unions have that to do with commerce. Therefore, the federal government isn’t allowed to regulate. Union, until there was a union that engaged, there was in union then gave to some pretty violent tactics in order to try to push back against the nasty employer when the employer sued, invoking a federal law to say that the union shouldn’t be able to do that. Also, the justice turned around. Say, though, now that it affects management, we do think that unions, in fact, impact interstate commerce. So this wall is fine so long as management is invoking it. So you had this period where the justices were essentially applying to constitutions. That’s one of the chaps in my book that’s there is pulp the Constitution because they essentially created one inferior constitution for workers and another country. That was just great for you if you were management and they used it to dismantle the efforts of elected officials in order to protect workers in the workplace. 

In the book, you talk a lot about the two constitutional interpretations, the constitutional interpretation of Hamilton versus the constitutional interpretation of Jefferson. What do you mean by that? 

I mean, we’ve been fighting this war over and over again in constitutional law. And, you know, a lot of us felt this war had finally been won for good in the roses, that the Tea Party’s cause calling that into question. In the very early days of the American republic, there was the first great constitutional fight was over the first bank, the United States, whether the federal government, the charter of bank. This was the predecessor to the Federal Reserve. And Alexander Hamilton, are you? Yes, of course the United States did. And he then the process of arguing for the bank laid out a fairly expansive theory for the federal of the federal government’s ability to regulate the nation’s economy and to fund activities that it things that are beneficial. I think that Hamilton’s reading of the Constitution is right and so do existing Supreme Court precedents. Madison took a very narrow view of the Constitution. He even admitted that he wanted to restrict the federal government’s power beyond what the Constitution actually says. Under Madison’s theory of the Constitution, we couldn’t have Medicare and now we couldn’t have Medicaid, we couldn’t have minimum wage walls. We couldn’t have anything protecting labor unions. You clean up Social Security at a very narrow view of what the federal government can do up until nineteen thirty seven for most of American history. Madison, you have been the dominant view, even though George Washington sided with Hamilton after night. Actually, I take that back. You know, they went back and forth. We fought this battle over and over again. In the late eighteen hundreds during the Lochner era, Madison’s view began to be ascendant. And since the New Deal, when it became clear that the Madisonian view did not allow us to address things like the Great Depression, the more expansive vision of Hamilton has been dominant. And most people, if you’d asked me five years ago, thought that that battle was over forever. As it turns out, not so much, you know, as it turns out. If you look at the recent case from two years ago attacking the Affordable Care Act, it’s straight out of the late eighteen hundreds decisions. You know, if you look at the rhetoric of someone like Rand Paul or Ted Cruz or Mike Lee, they’re calling for us to go back to this era where things like Social Security or minimum wage walls will be considered off the table. So we keep fighting this battle over and over again. And unfortunately, we’re not fighting it where it should be fought. We’re not fighting it at the ballot box. We’re fighting it in the court room where five people in black robes control all the cards. 

What new was a New York baker who was fined for abusing his workers? And the court ruled that it was not acceptable to regulate business in this way. And yet the court was more sympathetic to the idea that the states could regulate things to protect public health and keep filth out of bread. Why was the court more sympathetic to employer employee freedom to contract versus consumer seller freedom to contract? I mean, can’t we contract to eat moldy bread just the same way as a worker can contract to work for a dollar an hour? They want to buy their principles. 

Yeah. I mean, yeah. I mean, that was the theory of Wapner’s. You know, the idea behind Lochner is that there is this not entirely ironclad, but very robust, what they called a right to contract. And so the theory is that if I’m a bakery worker and I agree to work 14 hours a day where I’m paid a dollar a day, then some wall comes along, says, no, I have to be paid more money. That’s taking away my right to contract. And that somehow wrong. Now, the reason why Walker was wrong legally is that there’s no basis in the text of the Constitution. Lochner said that this right to contract flows from the 14th Amendment’s word, saying that no one shall be denied liberty without due process of law. And if you read the word, you know, a vague word like liberty that expansively, that it really does just mean whatever five justices say it means at times it’s meant the freedom to segregate public spaces that you run for profit. 

Right. Yeah. 

I mean, there are actually cases, you know, one of the early. I spend a lot of time in the first chapter of the book talking about this really odious individual named John Archibald Campbell. Campbell was a former Supreme Court justice who left the court to be called a high ranking Confederate official. And then after the Civil War, he basically built a wall practice out of suing to try to make white supremacy the law of the land. And one of his early cases, he argued that the 14th Amendment doesn’t allow laws banning segregation because it somehow was a infringe from property owners rights. That theory was taken up by very conservative justices in the future. And if you read some of the Bochner, our cases that say that we can’t have laws protecting unions. The theory behind those walls was that people were allowed to contract with whoever they want. At a time of business owner and I don’t want to contract with someone who is in a union that I should have an absolute right to fire them. Well, if you take that theory seriously, what if I’m a business owner and I don’t want to contract with a black man? You know, I don’t want a contract with a black man either as my employee or I own a lunch counter. And I don’t want to contract with them because I don’t want to sell them food. If you take the theory of these cases seriously, then it’s impossible to have civil rights laws, because one of the things that these cases are very clear about was they said that people had a virtually absolute right to refuse to do business with whoever they wanted to. And if you have a right to refuse to do business with whoever you want to, you can refuse for racist reasons. You can refuse for sexist reasons. You know, if you want to talk about what was recently happening there, Ozona, you can refuse because you don’t like them because they’re gay. And that’s the theory that animated these early decisions and that unfortunately you see people now trying to bring back. 

Why was the court in that same era more sympathetic with laws protecting the purity of food, let’s say isn’t the same thing, a contract between a buyer and seller? 

You no, it’s a really good point. Is that right? The decisions of that area were very arbitrary. There was a case saying that Congress could ban or recall it considered into food, dangerous foods, veto ketchup that had molded and or whatever from traveling interstate commerce. And yet when Congress tried to ban goods that were made by child labor from traveling interstate commerce, suddenly the court had a problem with that. There are arbitrary rules that really said more about the justices political preferences than they did than they did about the law. I don’t know, to be honest, why the justice of that area cared less about protecting children from being forced to work in cotton mills than they did about pure foods. But my theory is this. If you’re the chief justice of the United States, you’re on the Supreme Court. There’s probably not that much respect. Your son is going to wind up in a coal mine. It is probably not that much risk that your daughter is going to wind up staring at the thread in a textile mill until they burn images into a retina. That’s probably not going to happen to your child. But if your chief justice of the United States, you want to make sure you buy ketchup that doesn’t have molded and you want to make sure that you’re buying eggs that aren’t rotten. And so I think one reason why when you look at the cases is that our there were sometimes more sympathetic to health laws and they were to labor laws, is because health is a great equalizer. Doesn’t matter how powerful you are, if you eat more, you’re going to get sick. But I don’t think that they had any reason to empathize with these children who were forced into these terrible jobs because it wasn’t giving their child these days. 

There’s a lot of emphasis on original intent when justices interpret the Constitution. But conveniently, we’re so far from when those amendments were written that we don’t even have access. Those people are all dead. We can only infer what they meant. What was it like when Supreme Court justices were interpreting amendments that had been written and the people who wrote them were still alive? Like, how do you get from the reconstruction amendments that were all about putting us back on an equal footing after slavery? How do you get from there to interpreting the 14th Amendment to mean that you can still have segregation when the people are still alive? 

I mean, you know, you’re seeing a similar thing play out in the court right now where you have this lawsuit claiming that the Affordable Care Act wasn’t intended to provide subsidies to most Americans who qualify for them. 

And pretty much anyone who was involved in passing the Affordable Care Act is saying that that’s ridiculous. I mean, no one who was credibly involved in the process, as has said otherwise. 

There’s a clip from an economist who worked on it that that people keep citing. But he taken in context, he seems to be saying something else. So, I mean, we’re seeing that play out now. You know, part of the problem with having five on elected officials who have lifetime appointments can do whatever they want, is that they don’t have to follow what everyone who draftable says that means if they you know, if they don’t want it. Now, that said, it’s important to understand that the people who write walls are the people who write constitutional amendments don’t always know what they’re doing, or at least what we don’t know with certainty what those things mean. You know, I told you before about the fight between Madison and Hamilton, both of whom were involved in drafting the Constitution and how they disagreed so bitterly about what the Constitution means. You know, I think Madison was wrong about who was acting in bad faith. 

I don’t think that he was just making it up because that was the result that he wanted. I think that even at the very beginning, we had a vague constitution. People acting in people of goodwill could disagree about what it meant. And the problem with when you have such an ambiguous document is that that means that the justices themselves don’t always have to act in bad faith in order to produce terrible results or results that wouldn’t be at all recognizable to the drafters of the Constitution. Because, you know, a while the time the problem is that the words are really vague. 

Precedent is really important in life in general and to the Supreme Court. But the court has reversed itself really dramatically in various points in history the way it did with Brown vs. the Board of Education. How does the Supreme Court go about overriding its own precedents? 

I mean, they’re supposed to be all these rules for a. When a precedent has been sufficiently undermined by subsequent events, you know, things that scholars want to write, law review articles about explaining when and overruling happened. But as a practical matter, the only thing you need to get a Supreme Court decision saying whatever you want is five votes. 

Look at Citizens United. There wasn’t decades and decades of decisions that doctrinally undermine the rule that corporations can be barred from spending money to buy elections. There was just there had been four votes who wanted to do that? And then one of those justices left and was replaced by the fifth vote. Who wanted to do that? Look at what happened with the Voting Rights Act recently where the Supreme Court gutted one. It essentially deactivated one of one of its core provisions. And the only precedent that Roberts was able to cite in his opinion that seemed to suggest that that was the right result was a decision he had written four years earlier, I believe is for that moment three years earlier, where he had essentially struck a deal with the liberals on the court say that if you’ve got to put that language in the opinion they’ll like, they’ll join it. And then the Voting Rights Act will get to live for a few more years before I get killed anyway. So as a practical matter, maybe it really technical cases where the political stakes are very high. 

You know, I think that the Supreme Court typically does a very good job in cases that they don’t have much of a stake in. But when they’re eight, when they have an ideological stake in the outcome, motivated reasoning kicks in. You know, it’s very people will do a really great job of convincing themselves that the result they want is the correct result. And, you know, why did they overrule decisions, Freakley? Just five people. One overrule a decision. 

They get from the Warren Court. Abolishing school prayer in 1962 to the Roberts court, upholding the right of the town of Greece to have a prayer at the beginning of its meetings. 

Well, I mean, this is actually a little nuance there, because the town agrees. I was stunned that that case was brought. I mean, that’s a case that never should have been brought. And the reason why is because during the burger era, Warren Burger was Richard Nixon’s appointment to be chief justice. And the Burger Court was very much a transition court where Roe v. Wade happened during the burger era. The foundation of our women’s equality wall happened in the burger area. What? The same time the burger court put the halt on a lot of the good stuff that the Warren Court seemed to be headed towards. So it was very much a transitional era. And in that era where the court was trending conservative, but there were still opportunities for liberals to prevail. There was this case called Maskey Chambers, which held that essentially legislative prayer, as it is generally previously created a special rule. And I just read it as a political decision. Well, you know, I remember reading Martian soil and thinking like, oh, like the justices think that they don’t have the political clout to strike down legislative prayer. So they’re just going to come up with a reason not to do it. 

Was March the black barber who became a legislator who just decided that he has up to here with Christianity, wasn’t going to sit in the legislature anymore. 

Those chambers was. Yeah. It’s Ernie Chambers is is a Nebraska senator who’s been there forever. Yeah. And he was he was the plaintiff in that case. Yeah. And you know what? My point is going back to your question of how we got to where we are with the Establishment Clause in the burger era, which was a better era for liberalism. The court was so swept out by the idea of touching legislative prayer that they weren’t willing to do it. Then if they weren’t willing to do it, then, you know, bringing a case like that in the Roberts era where the court seems to be eager to do whatever it can to put conservative preferences into law. That’s not a case that I think should have been brought. 

Ian, that’s all the time we have for today. Thank you so much for coming on the show. The book is Injustices by Ian Neuhauser. 

All right. Thank you so much. 

Lindsay Beyerstein

Lindsay Beyerstein

Lindsay Beyerstein is an award-winning investigative journalist and In These Times staff writer who writes the blog Duly Noted. Her stories have appeared in Newsweek, Salon, Slate, The NationMs. Magazine, and other publications. Her photographs have been published in the Wall Street Journal and the New York Times’ City Room. She also blogs at The Hillman Blog (, a publication of the Sidney Hillman Foundation, a non-profit that honors journalism in the public interest.