A Supreme Court Overview
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The Immigration Debate
by The Editors | April 17, 2017
Charlie Hebdo Two Years Later: Will America Continue to Protect Free Speech?
by Steve Simpson | January 07, 2017
Free Speech Is a Right, Not a Political Weapon
by Steve Simpson | December 06, 2016
One Small Step for Dictatorship: The Significance of Donald Trump’s Election
by Onkar Ghate | November 17, 2016
Overturning Citizens United Would Be a Disaster for Free Speech
by Steve Simpson | September 06, 2016
New Book: Defending Free Speech
by The Editors | July 26, 2016
Defending Free Speech
by Steve Simpson | July 02, 2016
How U.S. Attorneys General Are Like Chinese Censors
by Steve Simpson | July 01, 2016
Standing up for Free Speech
by The Editors | June 17, 2016
Is the First Amendment Enough?
by Steve Simpson | March 22, 2016
Free Speech Under Siege
by Steve Simpson | March 25, 2015
Freedom of Speech or Tyranny of Silence?
by The Editors | January 21, 2015
Free Speech and the Battle for Western Culture
by Yaron Brook | January 21, 2015
Freedom of Speech: We Will Not Cower
by Onkar Ghate | January 07, 2015
Gutting the First Amendment
by Steve Simpson | July 17, 2014
The Myth about Ayn Rand and Social Security
by Onkar Ghate | June 19, 2014
The Campaign Finance Monster That Refuses to Die
by Steve Simpson | June 11, 2014
The “End the Debt Draft” Campaign
by Don Watkins | March 18, 2014
End the debt draft
by Don Watkins | March 13, 2014
Abortion Rights Are Pro-life
by Leonard Peikoff | January 23, 2013
A Liberal Ayn Rand?
by Onkar Ghate | November 02, 2012
Ryan, Rand and Rights
by Don Watkins | August 17, 2012
Repairing Lochner’s Reputation: An Adventure In Historical Revisionism
by Tom Bowden | Fall 2011
Why Should Business Leaders Care about Intellectual Property? — Ayn Rand’s Radical Argument
by Adam Mossoff | November 30, 2010
Elena Kagan: Could She Defend the Constitution’s Purpose?
by Tom Bowden | July 20, 2010
Capitalism: Who Needs It — Ayn Rand and the American System
by Yaron Brook | June 09, 2010
Were the Founding Fathers Media Socialists?
by Don Watkins | March 01, 2010
Justice Holmes and the Empty Constitution
by Tom Bowden | Summer 2009
Nationalization Is Theft
by Tom Bowden | November 07, 2008
Supreme Disappointments
by Tom Bowden | November 03, 2008
Deep-Six the Law of the Sea
by Tom Bowden | November 20, 2007
After Ten Years, States Still Resist Assisted Suicide
by Tom Bowden | November 02, 2007
No Right to “Free” Health Care
by Onkar Ghate | June 11, 2007
The Rise and Fall of Property Rights in America
by Adam Mossoff | May 16, 2007
Free Speech and the Danish Cartoons, a Panel Discussion
by Yaron Brook | April 11, 2006
The Fear to Speak Comes to America’s Shores
by Onkar Ghate | April 04, 2006
The Twilight of Freedom of Speech
by Onkar Ghate | February 21, 2006
The Cartoon Jihad: Free Speech in the Balance
by Christian Beenfeldt | February 10, 2006
The Faith-Based Attack on Rational Government
by Tom Bowden | June 27, 2005
Supreme Court Should Uphold Rights, Not Majority Sentiment in Ten Commandments Cases
by Tom Bowden | February 23, 2005
Campaign Finance Reform Attacks Victims of Corruption
by Onkar Ghate | December 26, 2003
Thought Control
by Onkar Ghate | April 22, 2003
A Supreme Court Overview
by Tom Bowden | January 01, 2000
Blacklists Are Not Censorship
by Tom Bowden | March 23, 1999
Health Care is Not a Right
by Leonard Peikoff | December 11, 1993
The Age of Mediocrity
by Ayn Rand | April 26, 1981
Censorship: Local and Express
by Ayn Rand | October 21, 1973
A Nation’s Unity
by Ayn Rand | October 22, 1972
Of Living Death
by Ayn Rand | December 08, 1968
The Wreckage of the Consensus
by Ayn Rand | April 16, 1967
Racism
by Ayn Rand | September 1963
POV: Man’s Rights; The Nature of Government
by Ayn Rand | 1963

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A Supreme Court Overview

by Tom Bowden | January 01, 2000

In Sunset Boulevard, silent-screen star Norma Desmond listens as a young admirer tactlessly recalls her faded glory. “You used to be in pictures,” says the fan. “You used to be big.”

“I am big,” replies Norma, her voice dripping with contempt. “It’s the pictures that got small.”

If only our fading Constitution could speak, it would summon all the grandeur of its illustrious past and say, echoing Norma Desmond, “I am big. It’s the Supreme Court that got small.”

As the Supreme Court begins its new term, have you found yourself wondering why the Court’s docket always seems to be littered with arcane issues of little consequence, while our vital liberties are being continually eroded by government? You will not find the answer in a typical microscopic analysis of changes in the Court’s thinking from session to session. Only a wider historical perspective, one that penetrates to philosophic fundamentals, will detect the seismic shift that has led the Court to forsake its essential judicial function.

America’s Founding Fathers swept away centuries of tradition in which the individual had been subservient to the collective — to family, community or nation. The Founders held that to protect human life and human progress in society, the individual must be sovereign. They held that each individual has an objective right to his own life and his own happiness — including the right to his property, without which no other rights are possible. They held that individual rights are inalienable, that is, that no force on earth — no monarch, no parliament, no mob or legislative majority — could rightfully violate them.

The Supreme Court was designed to protect these sacred rights against incursion by government. If Congress or any state enacted a law that infringed upon rights, the Court, under the power of judicial review, was to strike it down. The Court was to be the individual’s last line of defense against tyranny — the tyranny of unlimited majority rule.

But today’s leaders have embraced pragmatism, the philosophy that claims there are no absolutes and no principles, only subjective opinions guided by expediency. The only way, therefore, to prevent society from degenerating into anarchy — the pragmatists concluded — is by enshrining unrestrained majority rule.

According to this view, the individual citizen lives, not by right, but by society’s permission — for which the majority can set whatever conditions it wishes. As a chilling example, consider that almost a century ago the grandfather of Supreme Court pragmatism, Justice Oliver Wendell Holmes, characterized the First Amendment’s guarantee of freedom of speech as nothing but an arbitrary “experiment” which, if the citizens tire of it, may be repealed tomorrow with impunity.

Without the unyielding principle of individual rights as the moral yardstick for judging the acts of legislatures and executives, the Supreme Court is impotent to engage in proper judicial review. As a result, government routinely violates individual rights while the Court stands idly by.

Businessmen suffered first, and most, from this dereliction, as the Court permitted once-sacrosanct property rights, such as freedom of contract, to be crushed by majority rule. Few people remember that the Supreme Court once protected property rights, e.g., a company’s right to pay workers any wage they voluntarily accept, or its right to function without a state license — even though they are not concretely listed in the Constitution. The Court used to understand the principle of individual rights. Now, however, the Court allows lawmakers to exercise virtually unlimited power over production, employment and trade.

Because businesses know the Court will not protect them, they see no choice but to compromise when their rights are threatened. For example, the tobacco industry would never have agreed to the unprecedented controls over its right to free trade — the massive fines, the debilitating regulations, the authoritarian censorship — were it not for the Court’s abject surrender of its Constitutional mission.

Other rights have fared no better. Recall what happened in 1986, in Bowers v. Hardwick, when the Court ruled that a homosexual has no right to pursue sexual pleasure in the privacy of his home, if the majority vote of a legislature has prohibited it. And earlier this year, in Washington v. Glucksberg, the Court declared that a terminally ill individual has no right to assisted suicide if a majority of society refuses to allow it.

Indeed, it is only a matter of time before a woman’s right to choose an abortion sinks under this pragmatist/collectivist tide, as the Court permits the gradual demise of Roe v. Wade — the last surviving example of proper judicial review.

Only a philosophical renaissance restoring individual rights to their place of honor in our Constitutional republic will enable the Supreme Court to reclaim its vital role as defender of the individual against the collective.

About The Author

Tom Bowden

Analyst and Outreach Liaison, Ayn Rand Institute