Social Education 66(1), pp. 60-62
©2002 National Council for the Social Studies
The recent United States Supreme Court decision in the case of Bush v. Gore unleashed a torrent of controversy. Polls released shortly after the case was announced showed a deep division in public opinion: Republicans overwhelmingly supported the decision and Democrats overwhelmingly condemned it.1 The web teemed with articles by legal scholars, many opposing the Courts decision, and chat rooms bristled with pros and cons.2 The decision also engendered a rash of books by notable legal writers, including Alan Dershowitz, Gerald Posner, and Vincent Bugliosi, critiquing the Courts opinion and rationale. One commentator called the case one of the most controversial rulings in the courts history.3
Throughout its history, the U.S. Supreme Court has rendered controversial decisions. In one sense, all Supreme Court cases are controversial, at least to the parties involved and to broader interests that are affected. For a case to reach the Supreme Court, it must meet the original or appellate jurisdictional requirements outlined in the Constitution, survive the appellate process, and present an active controversy. In another sense, however, few cases are truly controversial, as most receive little public notice and affect only a small segment of society.4
As social studies educators, we know that using controversial Supreme Court cases in the classroom can stimulate discussion, increase knowledge of issues and institutions, and help students hone their critical-thinking skills. Thus, it is worth asking what makes a particular case controversial and which cases are best for classroom use.
A Supreme Court case might have three dimensions of controversy: political, popular, and legal. A case is politically controversial by spurring action or reaction in other branches or institutions of government. For example, the famous case of Brown v. Board of Education engendered significant resistance by several state governments and ultimately forced the U.S. executive and legislative branches to act. Also, on numerous occasions Congress has obviated Supreme Court decisions through the constitutional amendment process. The Fourteenth Amendment reversed the Courts Dred Scott v. Sanford (1857) decision by guaranteeing black Americans citizenship, and the Sixteenth Amendment overturned the Courts decisions in Pollock v. Farmers Loan and Trust Co. (1895) and other cases that had ruled income taxes unconstitutional. Controversial cases with this dimension can lead to student learning about the structures of government, federalism, separation of power, and checks and balances, as well as about the issues of the particular case.
A Supreme Court case is popularly controversial when addressing an issue, often moral or religious, that deeply divides society. Discussions of such cases focus on the public reaction to a decision, often prompting grassroots efforts, protests, and political organizing. Classic examples include the movements espousing right to life and school prayer. Popularly controversial cases allow for students to learn about informal political processes and to discuss and analyze values.
In legally controversial cases, legal scholars, writers, and judges respond not so much to the outcome of the case, but to questions about the rationale that the Court used to reach its result. Legal controversy lends itself to critical-skill development by offering students the opportunity to examine precedents, logic, analogy, and consistency in the case.
Few controversial cases fall into only one category because the categories themselves overlap. For the sake of analysis, let us consider a few historical Supreme Court cases.
Marbury v. Madison, 1 Cranch 137, 2 L.Ed, 60, (1803)
In this case, Chief Justice John Marshall established the Courts power of judicial review by declaring an act of Congress unconstitutional. Under the Judiciary Act of 1789, Congress had granted the Court the power to act in an area not covered by Article III of the Constitution. Although there is no indication that this case was popularly controversial, it did provoke Congress and may have been a factor in Jeffersons attack on the Court, leading to the impeachment of one justice.5 In addition, the validity, scope, and limits of judicial review have been legally controversial since the opinion was written, most recently in the confirmation hearings for Robert Bork, who argued that the judicial prerogative should be limited by the original intent of the founders.
United States v. Eichman, 496 U.S. 310 (1990)
This flag desecration case exemplifies the popular and political dimensions of controversy. In this case, the Court overturned by a 5-4 majority the convictions of two flag-burning protesters prosecuted under the 1989 federal Flag Protection Act. The Court ruled that the governments interest in protecting the flag under the act was related to the suppression of free expression and thus violated the Constitution.6 In response to this decision, the House passed proposed constitutional amendments to protect the flag, but the actions all narrowly failed in the Senate.7 Popular support to protect the flag, always strong, remains so, with more than 60 percent of Americans favoring a constitutional amendment that would overturn United States v. Eichman.8
Roe v. Wade, 410 U.S. 113 (1973)
Perhaps no other case is more rife with popular, political, and legal controversy than the case that gave constitutional protection to women seeking abortions. In the majority opinion by Justice Harry Blackmun, the Court determined that a right of privacy protected a womans right to choose an abortion, anchored by principles contained in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Although initial reaction to the decision was muted, over the years it led to the growth of a massive right-to-life movement, with members ready to vote, protest, and lobby for an end to legal abortion. It also sparked an equally large and dedicated right-to-choose movement dedicated to preserving the right. On the political front, legislation was passed to limit the impact of the decision, including cutting off federal funding for abortions, proposing constitutional amendments, and, most recently, opposing partial-birth abortions. Legally, Blackmuns opinion has received significant criticism, especially from conservative scholars, as well as significant support from more liberal scholars.9 But although the American people are deeply divided on the issue, depending on how the poll question is asked, a majority currently oppose overturning the Roe decision.10
Korematsu v. United States 323 U.S. 214 (1944)
Not all controversial Supreme Court cases immediately reveal themselves, and some, immediately controversial, become less so over time. The decision in Korematsu v. United States sustained the conviction of a Japanese American citizen who violated the exclusion orders of the U.S. military in California during World War II. The Court deferred to the judgment of the military that the exclusion of all Japanese Americans was necessary to defend the coast from potential espionage and sabotage. The Court followed similar reasoning in other cases. With the distractions of war, little popular controversy arose over the decision, but in subsequent years, legal scholars have roundly criticized the results and worry that the case is still good law and a dangerous precedent in times of national crisis. Belatedly, Congress did apologize for the internment of Japanese Americans and passed a reparations bill in acknowledgment of this great injustice.
Miranda v. Arizona 384 U.S. 436 (1966)
This case was popularly, politically, and legally controversial when first rendered. The opinion, which requires police to advise suspects in custody of their rights before questioning them, has become much less controversial over time. Though subsequent court decisions have narrowed its scope, all attempts to overturn the case have failed, and in a recent poll, 94 percent of Americans agreed that police should inform suspects of their constitutional rights.11
Bush v. Gore?
So how does the case of Bush v. Gore stack up as a controversial case? Near the time of the election, it excited popular controversy, and legal controversy continues. Moreover, the decision has spawned several voting rights lawsuits seeking redress under the Courts equal protection rationale. In addition, the federal government and various state and local governments are researching and implementing new voting systems in response to the decision and the Florida election debacle. In short, Bush v. Gore has all the dimensions of a case that will likely join the ranks of the Supreme Courts most controversial decisions.
1. CBS News Poll (Dec. 14-16, 2000) available at www.pollingreport.com.
2. See Jurist: The Legal Education Network at the University of Pittsburgh School of Law, Forum (www.jurist.law.pitt.ed).
3. Gary Kamiya, Against the Law, available at www.salon.com.
4. For discussion, see Lawrence Baum, The Supreme Court (Washington, D.C.: CQ Press, 1998), 175-178.
5. Baum, 23-24; John A. Garraty, The Case of the Missing Commissions, in Quarrels That Have Shaped the Constitution (New York: Harper & Row, 1987), 7-19.
6. Donald A. Downs, Eichman, United States, v., in The Oxford Companion to the Supreme Court, ed. Kermit Hall (New York: Oxford University Press, 1992), 246.
7. Warren S. Apel,, A Brief History of Flag Burning, available at www.equilax.com.
8. Lydia Saad, Most Americans Would Give Old Glory Legal Protection, Poll Analysis, The Gallup Organization (July 6, 1999) available at www.gallup.com.
9. See Rosalind Rosenberg, The Abortion Case, in Quarrels That Have Shaped the Constitution, ed. John Garraty (New York: Harper & Row, 1987), 351-378.
10. Joseph Carrol, Majority of Americans Say Roe v. Wade Decision Should Stand, Poll Analysis, The Gallup Organization (January 22, 2001) available at www.gallup.com.
11. The Supreme Courts Miranda Decision, Poll Analysis, The Gallup Organization (June 27, 2000) available at www.gallup.com.
Marshall Croddy is Director of Program and Materials Development for Constitutional Rights Foundation in Los Angeles, California. Classroom materials on controversial U.S. Supreme Court cases are available on the foundations website (www.crf-usa.org).