Libertarian struggle through jurisprudence
Despite his reelection defeat, Donald Trump continues to rabble-rouse his anti-black, anti-Asian, anti-migrant, and anti-establishment Republican diehards and riotous partisans, jeopardizing two centuries of American struggle for social, racial, gender, and political equality. As a jurist, I will relate within my limited space how Trump’s populism endangers this libertarian struggle via five decisions of the Supreme Court of the United States (Scotus), chronologically:
First, Dred Scott v. Sandford (March 6, 1857) held, 7-2, that black slaves, though born in the US, were not included in the word “citizen” in the text of the US Constitution. Rather, they were deemed mere possessions of their white masters who bought and sold them.
To overturn this hideous decision, the US amended its Constitution twice (the 13th Amendment that abolished slavery and the 14th that guaranteed citizenship to all “persons born or naturalized in the US”). Nonetheless, the decision writer, CJ Roger Taney, and the six justices who voted with him were damned forever in US constitutional history.
Second, Brown v. Board of Education (May 17, 1954) to be read together with Plessy v. Ferguson (May 18, 1896). Plessy allowed, 7-1, the segregation of blacks from whites in railroad cars and, impliedly, in all government facilities, spawning the infamous “separate but equal doctrine.”
Brown unanimously and triumphantly reversed Plessy, holding that the banning of blacks from schools and classrooms reserved only for whites violated “the equal protection of the laws guaranteed by the 14th Amendment,” and that separate facilities based on race were inherently unequal.
Third, Miranda v. Arizona (June 13, 1966) required the police to advise usually-poor crime suspects—upon their arrest—this caveat: “You have the right to remain silent. Anything you say can, and will, be used against you in a court of law. You have the right to an attorney. If you cannot afford one, one will be appointed for you.” We did better: Our Constitution, not just our courts, embedded these “Miranda rights” in its Bill of Rights; a violation thereof could lead to acquittal, though factually, the accused may be guilty.
Fourth, Roe v. Wade (Jan 22, 1973) ruled (7–2) that statutes criminalizing abortion violate a woman’s constitutional right to privacy, a right implied from the due process clause (“…nor shall any state deprive any person of life, liberty, or property, without due process of law”).
Repeated challenges since 1973 narrowed the scope of Roe v. Wade but did not overturn it in Planned Parenthood v. Casey (June 29, 1992), Gonzales v. Carhart (April 18, 2007), Whole Woman’s Health v. Hellerstedt (June 27, 2016), and June Medical Services v. Russo (June 29, 2020).
Fifth, Bush v. Gore (Dec. 12, 2000) reversed, 5-4, a Florida Supreme Court order for a manual recount of “imperfectly punched” automated ballots cast. It effectively awarded Florida’s 25 electoral votes and the election itself to Republican George W. Bush against Democrat Al Gore by a very narrow, 271-267, electoral vote margin, though Gore won more popular votes than Bush.
This decision was heavily criticized for partisanship because the state governor was Bush’s brother Jeb and the head of the election body, Katherine Harris, was the co-chair of Bush’s Florida campaign. Worse, the five Scotus justices named by Republican presidents voted solidly for Bush while the four appointed by Democratic presidents lined up for Gore.
Nonetheless, Gore—in contrast to Trump’s no-concession stance—conceded the election to Bush. When I met him during his visit here in 2006 during my term as CJ, he explained, “Mr. Chief Justice, there is something greater than me… The Supreme Court has spoken. Though I disagreed with the decision, I had the duty to respect and obey it…”
I responded, “Had you been president, would you have ordered the invasion of Iraq and Afghanistan?” His reply was quick, “No, never. That was my campaign promise.” To which I asked again, “Then, the US would not have spent trillions of dollars in those wars which you could have used to reduce extreme poverty in the world including ours, right?” He chuckled, “Yes, yes, including the Philippines.”
To conclude, Trump’s populism — aided by his three conservative appointees in the Scotus (tilting the delicate balance there to 6-3) — endangers this libertarian struggle for equality.
Next Sunday: Five contentious PH cases.
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