The Rule of 45
Approximately every forty-five years (give or take a few) the United States Supreme Court has issued a landmark decision affecting American life. In 1798 it decided Calder v. Bull ruling that ex post facto prohibitions applied in criminal but not civil cases; in 1803 it decided Marbury v. Madison, the most significant of all precedents. Roughly forty-five years later in 1841 would come the Amistad case, the first crack in the marble block of slavery.
By 1886 it would decide Yick Wo v. Hopkins and the era of equal protection would begin.
In 1931 would come Near v. Minnesota and its powerful statement prohibiting prior restraint and enshrining the modern First Amendment.
By 1974 the Court would decide Nixon v. United States, making real the principle that no one in America stands above the Rule of Law.
Yet, now over forty-five years later, in 2021, what are the great milestone or landmark decisions handed down by this Court?
Instead, we have cases that mechanically unwind the right to vote or take the part of business interests. The Supreme Court — contrary to the stale claims of its past Republican nominees — must do more than “call balls and strikes.”
It is the institution to which Clarence Gideon went when no one else would listen. It heard the cries for equality starting with Linda Brown in a small Topeka schoolroom.
It assured Escobedo and Miranda and Gant the right to due process in the face of accusations and police abuse.
And despite the criticism, it elegantly afforded all Americans a zone of privacy in their most intimate affairs and upheld the right to protest an unpopular war.
Now we have an insipid and timid Court that refuses to venture to the horizons of liberty — all in the well-pressed disguise of “textualism.”
I submit that textualism like its close cousin originalism is simply a way of saying we the powerful choose to have things as we believe they were for those originally in power.
But, that has never been America’s true destiny: to go backwards.
We need to ask this Supreme Court if it will ever hoist anchor from the dock of the past. Its job through history is to sail into the Seas of Liberty.
-Albert Turner Goins
