Reforming the Supreme CourtRecommendations for Reversing the Status Quo

PPE 698: Philosophy, Politics, an Economics CapstoneProfessor Chris Melenovsky

Term Paper Assignment

Matthew Sparks7203-29491

April 29th, 2016

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Introduction:

The purpose of this paper is to bring to light the ways in which the Supreme Court of the

United States has significantly changed over the years and to provide recommendations for how

it should return to its original doctrine. It proceeds by discussing the duties and responsibilities

of the Supreme Court and explaining why the Supreme Court is not suitably exercising its

authority and power. To begin with, the Supreme Court’s roles are outlined according to the

Constitution of the United States and the Supreme Court’s judicial review is outlined according

to Marbury v. Madison (1803). Then, many questions are raised about the Supreme Court’s

decision-making process that relates to its interpretation of the constitution, congressional

oversight, and understanding of individual’s rights and liberties. Next, three major criticisms of

the Supreme Court are proposed regarding its excessive litigation, judicial overreach, and

assessment of the popular majority and unpopular minorities opinions. Following this, the

Supreme Courts’ deference to legislatures on economic issues is addressed through the Paradox

of Voting. Afterwards, an argument is made for why the Supreme Court should adopt a so called

‘Requisite Clause,’ which is derived from Rawls’ Theory of Justice (1999). Finally, the Requisite

Clause is applied to civil rights and religious cases.

A Brief History of the Supreme Court:

The federal judiciary, along with its authority and power, is established in article III of

the Constitution of the United States. Article III, Section I states that “The judicial Power, shall

be vested in one supreme Court, and in such inferior Courts as the Congress may from time to

time ordain and establish” (The Constitution, 2016). While the Constitution of the United States

establishes the Supreme Court, it does not explain how it should be organized. This discretion is

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entrusted to Congress, which has been exercised in the Judiciary Act of 1789. Article III,

Section II states that “The judicial Power shall extend to all Cases, in Law and Equity, arising

under the Constitution, the Laws of the United States, and Treaties made, or which shall be

made, under their Authority” (The Constitution, 2016). Following this, the various cases and

parties that the Supreme Court has original jurisdiction over are outlined. While the Constitution

of the United States defines the Supreme Court’s legal ability to hear a case, it does not describe

the judicial review or role of the Supreme Court.

Judicial review is the ability of the Judicial Branch to review the actions of the Executive

and Legislative Branches of government to determine whether or not they are constitutional.

This doctrine of judicial review was not established until the landmark case of Marbury v.

Madison. The Chief Justice, John Marshall, stated “It is emphatically the province and duty of

the judicial department to say what the law is. Those who apply the rule to particular cases, must

of necessity expound and interpret that rule. If two laws conflict with each other, the courts must

decide on the operation of each” (Marbury, Justia, 2016). In other words, this case clarified the

scope of the Supreme Court’s original jurisdiction and ruled that the Constitution of the United

States was the supreme law of the land. Thus, Congress cannot pass laws that override the

Constitution of the United States (Marbury, Oyez, 2016).

The Supreme Court has four major roles in the United States’ constitutional system of

government (About the Supreme Court, 2016). First, the Supreme Court, being the highest court

in the nation, should be the ‘last resort’ for individuals seeking equality, fairness, and justice.

Second, the Supreme Court should use judicial review to provide checks and balances on the

Executive and Legislative Branches of government. Third, the Supreme Court should strike

down laws that violate the Constitution of the United States and infringe upon the civil rights and

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liberties of individuals. Fourth, the Supreme Courts should set appropriate limitations and

restrictions on democratic government in order to safeguard against popular majorities passing

laws that harm and/or take undue advantage of unpopular minorities (About the Supreme Court,

2016).

It is important to keep in mind that while the Constitution of the United States lays down

the basic foundation for the federal judiciary, it does not fully extrapolate the functions of the

Supreme Court. The interpretation of the judicial review and role of the Supreme Court is

bestowed upon the discretion of Congress, judges, and citizens. Thus, the extent of the Supreme

Courts’ authority and power is up for debate.

Even though Marbury v. Madison was the most monumental case for discerning the

Supreme Courts’ ability to perform judicial review, there have been many other cases that have

sought to further define this duty and responsibility. For example, Gibbons v. Ogden (1824)

showed that judicial review extended to issues over interstate commerce (Gibbons, Oyez, 2016).

Another example is McCulloch v. Maryland (1819), which showed that judicial review extended

to issues over banking and taxation (McCulloch, Oyez, 2016). These cases confirm that the

Supreme Court possesses unenumerated authority and power that is not explicitly expressed in

the Constitution of the United States and is directly associated with the Supreme Court’s ability

to perform judicial review. This is controversial, because it causes the limitations and

restrictions of the Supreme Courts’ jurisdiction to be ambiguous. There are also many concerns

about the ways in which the Supreme Court interprets the Constitution of the United States.

Some feel as though the Supreme Court should have a strict interpretation of the Constitution,

whereas others feel as though the Supreme Court should have a loose interpretation of the

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Constitution. Consequently, this makes it difficult for the Supreme Court to determine whether

or not laws violate the Constitution.

While it seems like the roles of the Supreme Court are coherent and comprehensive, they

are actually very complicated and intricate. The first role of the Supreme Court is mainly

concerned with when individuals should bring cases to the Supreme Court and when the

Supreme Court should act upon these requests. It is unfeasible for the Supreme Court to dedicate

the time and energy to look over each and every case. The Supreme Court, for the most part,

does not have to hear a case. It only hears about 100-150 of the more than 7,000 cases that are

proposed each year (Abut the Supreme Court, 2016). Therefore, the Supreme Court must have

some means of determining what cases to hear. It may decide to address the issues that are most

salient in society or it may decide to address specific issues that are categorized as cultural,

economic, political, or social. The second role of the Supreme Court pertains to the Judicial

Branch’s congressional oversight of the Executive and Legislative Branches of government. The

main idea is the Judicial Branch should review the distinct responsibilities of the Executive and

Legislative Branches of government. It should make certain that the Executive Branch is

enforcing laws appropriately and that the Legislative Branch is passing appropriate laws. The

degree to which the Supreme Court should review other branches of government, however, is

uncertain. The third role of the Supreme Court suggests that the Supreme Court should protect

citizens’ rights and liberties against invasion by government (Riker, 1998). This includes rights

of all types, whether property, political, or civil. This raises many questions, such as ‘What are

the specific rights and liberties of citizen’s under the Constitution?” and “When are government

actions considered and invasion of citizen’s rights and liberties?” The fourth role of the Supreme

Court suggests that the Supreme Court should ensure that the changing views of the popular

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majority do not undermine the fundamental values common to the unpopular minorities and all

Americans (About the Supreme Court, 2016). This means that the Supreme Court should uphold

everything from the due process of law to the first amendment, which prohibits the making of

any law which compromise individuals’ free exercise of religion, freedom of speech, freedom of

the press, right to peaceably assemble, and right to petition for a governmental redress of

grievances (The Constitution, 2016). This raises many questions, such as “What are the

fundamental values that are common to all Americans?” and “When do the views of the popular

majority undermine the views of the unpopular minorities?”

After taking all of this into consideration, it is apparent that the Constitution of the United

States does not sufficiently explain the authority and power of the Supreme Court. Given this,

there has always been much controversy surrounding whether or not the Supreme Court is

effectively exercising judicial review and its other various roles. This is evident from the

concurring and dissenting opinions of judges, which address the constitutional standing of

rulings. This is also evident from the sentiments of everyday people.

Critiques of the Supreme Court:

The Judicial Branch is currently impeding upon the roles of the Legislative Branch of

government. As a result, the notion of separation of powers and the provision of checks and

balances is not being upheld. It is known that the Judicial Branch is in charge of reviewing laws,

whereas the Legislative Branch is in charge of making the laws. The Supreme Court, however,

has not abided by this basic principle defined in the Constitution of the United States. It has

placed too much of an emphasis on making the law and too little of an emphasis on reviewing

the law. This means that the Supreme Court is too concerned with prohibiting the actions of

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individuals actions, instead of protecting the rights and liberties of individuals. It is too

concerned with dictating what people can and cannot do, rather than deeming a law as

constitutional or unconstitutional. The Judicial Branch needs to fulfill the purpose of the Judicial

Branch and the Legislative Branch needs to fulfill the purpose of the Legislative Branch. If not,

the power and authority of these branches will become unclear and this could lead to bad and

weak democratic governance. A noteworthy controversy is how the Legislative Branch is

passing laws that may be either incomplete or undefined with the intention that the Judicial

Branch will clarify the law and determine what is appropriate. This is problematic, because it

gives the Supreme Court a great deal of control over this nation’s laws. It also does not hold the

legislatures to a high standard.

The Supreme Court is wrongfully using judicial review to where it is micromanaging the

rules, regulations, and laws of this nation. In doing so, the Supreme Court has undermined the

ability of American citizens to decide on important issues. According to Varriale (2012),

“Judges should seek to limit the amount of litigation taking place in our society in order to force

people to take responsibility for their problems and solutions.” An excessive amount of

litigation causes confusion and inconsistencies in the decision making process. When the

Supreme Court is frequently reviewing cases and making rulings on issues that are classified as

the same, it becomes difficult for judges to reach a common understanding. It is a lengthy

process for judges to assess the precedence of all cases of the same topic. An excessive amount

of litigation also fails to hold individuals accountable for the policies they vote for or against. It

is better to have comprehensive laws than to have various stipulations outlined by Supreme

Court decisions. Laws establish strict guidelines to be followed, whereas various stipulations are

difficult for people to comply with. Furthermore, individuals are more dependent on the

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Supreme Court to decide what is correct than themselves. They think actions are legal unless

told otherwise. From another perspective, the Supreme Court has not used judicial review across

the board. It tends to spend more time on cultural, political, and social issues than economic

issues. This is partially due to the decisions the Supreme Court has made in the past. As stated

by Cross (1999), “The judicial process is more susceptible to manipulation by narrow interests

than are the more democratic branches of government and that expanding judicial review of

those branches would increase rather than decrease the influence of narrow special interests on

public policy.” It so happens that cultural, political, and social issues are more salient in today’s

society than economic issues. Thus, this explains why the Supreme Court’s attention is directed

towards these issues. The Supreme Court, however, should not be influenced by society and

should dedicate the same amount of time to all issues.

Arguably, the greatest issue this nation is facing is the way in which the Supreme Court is

valuing the rights and liberties of the unpopular minorities over that of the rights and liberties of

the popular majority. By no means does this imply that the Supreme Court should not strike

down laws that infringe upon the the rights and liberties of the unpopular minorities or that the

Supreme Court should not safeguard against popular majorities passing laws that harm and/or

take undue advantage of unpopular minorities. In all actuality, this is one of the most important

roles of the Supreme Court. The problem is, however, that the Supreme Court has overdone this

role. The Supreme Court has chosen to exclusively concentrate and focus on satisfying the

preferences of unpopular minorities. Consequently, the Supreme Court has ignored and

overlooked the preferences of the popular majority. The main idea is that the Supreme Court

should preserve the will of the popular majority unless it is found to oppress or discriminate

against the unpopular minorities. According to Varriale (2012), “It makes little sense for the

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courts to worry about appeasing small groups of individuals while at the same time disregarding

the sentiments of much larger groups of individuals.” This suggests that the Supreme Court

needs to take into consideration the degree to which the general will of society outweighs the

interests of individuals with different opinions. This also suggests that the Supreme Court really

needs to consider whether the unpopular minorities merely disagree with the laws passed by the

popular majority or are truly disadvantaged. Altogether, there is a fine line between determining

what it the appropriate balance. This is further explained in the scenario below.

For instance, suppose that there is a community with one-hundred people and that these

people are voting between policy A and policy B. Out of these one-hundred people, ninety-nine

people support policy A, whereas one person supports policy B. Thus, in a democratic election

policy A will beat policy B. However, suppose that when Policy A is adopted into law, the one

person who supported policy B claims that Policy A is a violation of his or her rights and

liberties. This one person then decides to file a lawsuit. Given this, the court has many important

decisions to make. At the outset, the court has to decide whether policy A is constitutional or

policy A is, in fact, a violation of his or her rights and liberties. This is when the court must

consider whether this one person filed the lawsuit to demonstrate his or her disapproval or to

show that his or her rights and liberties are legitimately being deprived in some way. If the court

decides that policy A is constitutional, then of course it remains. On the other hand, if the court

decides that policy A is unconstitutional, then things become more complicated. The court must

consider whether or not the rights and liberties of this one person that are being violated offset

the democratic voting process, the popular majorities views, and the effects of policy A itself. If

they do, then policy A should be repealed. If they do not, then policy A should remain.

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The Supreme Court’s Lack of Economic Oversight:

The Supreme Court has deferred to legislatures on economic issues. This statement is

supported by a series of cases where judges ruled that the Supreme Court does not have the

authority or power to override economic laws that are declared by the state governments and

their legislatures. Nebbia v. New York (1934) ruled that states can place limitations and

restrictions on businesses and companies if, and only if, it is done properly. States are able to

pass laws regarding economic regulations so long as they are not unreasonable or arbitrary

(Nebbia, Justia, 2016). This represents a major shift in authority and power from the federal

government and the Supreme Court to the state governments and their legislatures. United

States v. Carolene Products Co. (1938) ruled that the standard for reviewing laws affecting

commercial activities is a rational basis. This indicates that anyone wanting to challenge these

types of laws must prove that they lack a rational basis (United States, Justia, 2016). The review

of these laws is ultimately left up to the legislatures, not the courts. Williamson v. Lee Optical

Co. (1955) ruled that “Due process does not prevent states from regulating conditions in the

workplace even when these laws are unwise, flawed, or otherwise potentially questionable”

(Williamson, Justia, 2016). This places the burden of proof on business, companies, and any

other parties. The decisions made by legislatures “should be addressed through the political

process rather than judicial proceedings” (Williamson, Justia, 2016). Ferguson v. Skrupa (1963)

confirmed the previous rulings by asserting that legislatures have the duty and responsibility to

evaluate the appropriateness of laws, instead of the judiciary. The only constraint is when the

laws are undoubtedly forbidden by the Constitution of the United States (Ferguson, Justia, 2016).

Altogether, these cases suggest that legislation affecting businesses, companies, the workplace,

commercial activities, and economics is “no longer scrutinized with any rigor” (Riker, 1988).

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The reason why this is so problematic is seen through the Paradox of Voting. This

theoretical framework reveals that “The results of voting over more than two alternatives are not

in general interpretable” (Coleman, 1989). Moreover, the outcomes of voting over more than

two alternatives will not be meaningful (Coleman, 1989). There are many methods for

amalgamating and summarizing preferences that all result in different outcomes. This includes

everything from simple majority rule in pairwise comparisons and Borda counting to cardinal

utility summation and multiplicative cardinal utility measures. In effect, these procedures can

produce “different social choices from the same initial profiles that the rules are equally

defensible” (Coleman, 1989). Furthermore, this makes it “impossible to identify any one

outcome as uniquely reflecting the general or popular will” (Coleman, 1989). This demonstrates

that there is no way that voting processes can always determine what laws and policies people

really want. It also shows that there is no way voting processes can always lead to the best laws

and policies. Even though these procedures supposedly reflect the popular majority’s will, the

laws and policies that they pass may be found to oppress of discriminate against the unpopular

minorities. Thus, it is necessary for the Supreme Court to have the ability to review all laws and

policies that are voted upon. The Supreme Court should not be barred from reviewing economic

issues. This means that it should not be left up to the state governments and their legislatures to

decide whether the implementation of laws and policies are justified.

On another note, the Supreme Court has created an imbalance relating to the type of

issues it selects for review. It has placed a lesser emphasis on economic issues and a greater

emphasis on social justice, fairness, and equality. To reiterate, the Supreme Court should place

the same amount of emphasis on all issues. It is just as important to address economic issues as

it is to address cultural, political, and social issues. Ironically, by deciding not to look at

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economic issues the Supreme Court is most likely delaying social change and progress. This is

suggested by Karl Marx’s concept of social reproduction, which “refers to the emphasis on the

structures and activities that transmit social inequality from one generation to the next” (Doob,

2013). Many of these structures and activities relate to harmful economic cycles, such as spatial

mismatch, families’ socio-economic status, and children’s access to education. Thus, it is

necessary for the Supreme Court to review laws and policies that may be discreetly causing these

harmful economic cycles. Once again, this illustrates why the Supreme Court should not be

removed from reviewing economic issues. It is up to the Supreme Court to determine if existing

laws and policies are justified.

The Requisite Clause:

The main argument for reforming the Supreme Court involves the implementation of a

Requisite Clause. This addresses both the extent to which the Supreme Court should use judicial

review and the ways in which the Supreme Court should effectively exercise its roles.

Specifically, it outlines how the Supreme Court should (i) interpret the constitutionality of laws,

(ii) concentrate on limiting the amount of litigation, (iii) focus on reviewing laws over making

laws, and (iv) direct its attention towards upholding the values of the popular majority while

defending the rights and liberties of unpopular minorities. The basic principle of the Requisite

Clause is that the Supreme Court must discern what actions are needed and what actions are

wanted. This reinforces that the Supreme Court should not be influenced by narrow interests.

As previously stated, there is a fine line between determining what is the appropriate balance.

The Requisite Clause sets the standard by employing major concepts from Rawl’s Theory of

Justice (1999).

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In Theory of Justice (1999), Rawls offers a framework for governing the assignment of

rights and duties and the regulation of economic, political, and social advantages. It is comprised

of the liberty principle and the equality principle. The liberty principle states that “each person is

to have an equal right to the most extensive basic liberty compatible with a similar liberty for

others” (Rawls, 1999). This means that actors are endowed with personal, economic, political,

and social liberties. The equality principle states that “social and economic inequalities are to be

arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b)

attached to positions and offices open to all under conditions of fair equality of opportunity”

(Rawls, 1999). It is subdivided between the difference principle and the fair equality of

opportunity. The difference principle is similar to the notion of a Pareto improvement, which is

a state of allocation of resources in which it is impossible to make any one individual better off

without making at least one individual worse off. The difference principle, however, permits

inequalities if, and only if, they work to the advantage of the worse off. The fair equality of

opportunity maintains that offices and positions should be open to actors, regardless of their

social status, ethnicity, or gender. It is important to mention that Rawls’ theory of justice relies

on his concept of original position. This concept suggests that actors should make decisions for

the society in which they live with a so-called “veil of ignorance”. This implies that actors “do

not know how the various alternatives will affect their own particular case and they are obliged

to evaluate principles solely on the basis of general considerations” (Rawls, 1999). In other

words, actors must make decisions as though they are unaware of their place in society, their

assets and abilities, and the current cultural, economic, political, and social circumstances taking

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place. Actors must also be willing to live with the outcomes of their decisions no matter where

they end up in society.

The foundation of the Requisite Clause is related to the liberty principle, given that it

emphasizes how everyone is entitled to the same fundamental rights and liberties under the

Constitution of the United States. This suggests that the Supreme Court should make sure that

its rulings do not protect the rights and liberties of individuals by prohibiting the rights and

liberties of others. Occasionally, laws are passed that may violate the rights and liberties of the

unpopular minorities. If these laws were to be repealed, however, the rights and liberties of the

popular majority may be denied. Thus, the Supreme Court has an important decision to make. It

must decide how much the presence of this law violates the rights and liberties of the unpopular

minorities and how much the absence of this law would deny the rights and liberties of the

popular majority. If the rights and liberties of the unpopular minorities are violated more than

the rights and liberties of the popular majority are denied, then of course the Supreme Court

should repeal the law. On the contrary, if the rights and liberties of the popular majority are

denied more than the rights and liberties of the unpopular minorities, then the Supreme Court

must let the law remain.

The nitty gritty criteria of the Requisite Clause are defined by the equality principle. It

identifies that there will always be some level of inequality in society, but advises that actions

should be taken to eliminate it if at all possible. This suggests that the Supreme Court should

strive to eliminate inequalities in society through its rulings. According to the difference

principle, the Supreme Court should make sure that its rulings are to everyone’s advantage. The

Supreme Court must take into consideration how the implementation of laws makes the popular

majorities better off and the unpopular minorities worse off. Likewise, the Supreme Court must

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take into consideration how the eradication of laws makes the popular majority worse off and the

unpopular majorities better off. According to the fair equality of opportunity, the Supreme Court

should make sure that its rulings promote and protect the fair equality of opportunity. This is

really as straightforward and simple as it sounds.

Collectively, the liberty principle and equality principle do not fully encompass the

Requisite Clause. They do not explain the ways in which the Supreme Court should determine

how much the rights and liberties of the popular majority and unpopular minorities are violated

or denied. They also do not explain the ways in which the Supreme Court should determine how

much the implementation or eradication of laws make the popular majority and unpopular

minorities better off or worse off. This is where the veil of ignorance comes into play. Prior to

making a decision the Supreme Court judges must put themselves in the shoes of both the

popular majority and unpopular minorities. In other words, it is necessary for the Supreme Court

to evaluate all of the way its rulings will affect both the popular majority and unpopular

minorities. Overall, these considerations are ‘requisites’ for the Supreme Court to make an

appropriate decision.

Applying the Requisite Clause to Civil Rights Cases:

Brown v. Board of Education (1954) is a groundbreaking case that ruled the Equal

Protection Clause of the Fourteenth Amendment prohibits states from segregating public schools

on the basis of race. It reversed the decision in Plessy v. Ferguson (1896) that ruled the Equal

Protection Clause of the Fourteenth Amendment did not prohibit states from segregating trains

on the basis of race. As for this case’s historical background, it was a consolidation of four other

cases that were brought forth in South Carolina, Virginia, Delaware, the District of Columbia

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(Brown, Oyez, 2016). The commonality of all these cases, was that African American students

were being denied admittance to school based on laws that allowed educational facilities to be

segregated by race (Brown, Oyez, 2016). Altogether, Brown v. Board of Education ruled that the

separate but equal doctrine of Plessy v. Ferguson was unconstitutional (Brown, Justia, 2016).

The ruling of this case is justified by the Requisite Clause, given that the popular

majorities were not being made better off than the unpopular minorities were being made worse

off (i.e. equality principle). The popular majority’s desire for segregated facilities does not

outweigh the unpopular minorities’ desire for equal facilities. This is confirmed by the Supreme

Court’s opinion that held the “segregation of public education based on race instilled a sense of

inferiority that had a hugely detrimental effect on the education and personal growth of African

American children” (Brown, Justia, 2016). This clearly explains that segregated schools do not

provide the fair equality of opportunity.

Applying the Requisite Clause to Religious Cases:

Engel v. Vitale (1962) is a very controversial case that challenged whether or not

nondenominational prayers at the open of the school day violated the Establishment Clause of

the First Amendment (i.e. Separation of Church and State). As for this case’s historical

background, the New York state board of regents transcribed a brief, voluntary prayer to God

that was intended to be recited at the start of the school day. Many parents of student,

organizations, and institutions considered this to be a significant issue and decided to file a

lawsuit. They felt as though it was unconstitutional for the state to promote religious activities in

any way. The case eventually made it to the Supreme Court, which ruled “Because of the

prohibition of the First Amendment against the enactment of any law ‘respecting an

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establishment of religion,’ which is made applicable to the States by the Fourteenth Amendment,

state officials may not compose an official state prayer and require that it be recited in the public

schools of the State at the beginning of each school day, even if the prayer is denominationally

neutral and pupils who wish to do so may remain silent or be excused from the room while the

prayer is being recited” (Engel, Justia, 2016). In summary, the state is not allowed to conduct

prayer in schools, even if the prayer itself is not required and not associated to a particular

religion. Strictly speaking, “Neither the prayer’s nondenominational character nor its voluntary

character saves it from unconstitutionality” (Engel, Oyez, 2016).

The ruling of Engel v. Vitale is not justified by the Requisite Clause, given that the rights

and liberties of the popular majority are being denied more than the rights and liberties of

unpopular minorities are being violated (i.e. liberty principle). It denies the popular majority’s

freedom to exercise religion more than it violates popular minorities’ freedom from religion. As

stated by Justice Stewart in his dissenting opinion, “With all respect, I think the Court has

misapplied a great constitutional principle. I cannot see how an ‘official religion’ is established

by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of

these school children to join in reciting this prayer is to deny them the opportunity of sharing in

the spiritual heritage of our Nation” (Engel, Cornell, 2016). The state was not imposing religion

upon students through having these prayers each morning at school, because these prayers were

nondenominational and voluntary. It was simply giving them the opportunity to express their

faith and practice their religion. To deny students of this opportunity would be to deny them of

their rights and liberties.

What is most problematic about the Supreme Courts’ ruling in Engel v. Vitale is seen

through the cases that followed. They all imposed constraints on religion in academic settings

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and other school related activities. Wallace v. Jaffree (1984) ruled that time set aside by teachers

for prayer and meditation is prohibited by the Establishment Clause. This prevents teachers from

incorporating anything about religion in the classroom. Lee v. Weisman (1992) ruled that clergy-

led prayers at graduation ceremonies are prohibited by the Establishment Clause. This prevents

schools from letting religious figures come speak at graduation ceremonies. Santa Fe

Independent School District v. Doe (2000) ruled that student-led prayers at public school

sporting events is prohibited by the Establishment Clause. This prevents athletes and coaches

from praying at games, even if the school holds student elections that approve of these

invocations and the spokesperson who delivers them. As stated by Justice Stewart in his

dissenting opinion, “the tone of the Court’s opinion; it bristled with hostility to all things

religious in public life” (Santa Fe, Cornell, 2016). This means that the courts have embraced an

overly harsh, anti-religious viewpoint (Santa Fe, Justia, 2016). Altogether, this hurts the popular

majority more than it helps the unpopular minorities.

It can be argued that the Supreme Court is not acting wrongfully, because all of these

cases are public issues. However, this argument is not sufficient. Even though the government

should not establish a religion, it should not entirely disregard the role religion plays in society.

It is valid to say that the government should not promote religion on public property. However,

it is not valid to say that the government should prohibit religious practices on public property.

Applying the Requisite Clause to a Modern-day Case:

Obergefell v. Hodges (2015) is the most well-known case in this day and age. In this

case, the Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment

requires the state to recognize and license a marriage between couples of the same-sex. The

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consensus was that “Judicial precedent has held that the right to marry is a fundamental liberty

because it is inherent to the concept of individual autonomy, it protects the most intimate

association between two people, it safeguards children and families by according legal

recognition to building a home and raising children, and it has historically been recognized as the

keystone of social order” (Obergefell, Oyez, 2016). In short, “marriage is central to personal

identity, dignity, and autonomy,” as well as, “child-rearing, precreation, and education”

(justia.com). Altogether, this case built upon Windsor v. United States (2013), which struck

down parts of the Defense of Marriage Act and ruled that “The federal government cannot define

the terms ‘marriage’ and ‘spouse’ in a way that excludes married same-sex couples from the

benefits and protections that married opposite-sex couples receive” (Obergefell, Justia, 2016).

The ruling in Obergefell v. Hodges is not justified by the Requisite Clause, given that it

does not fully apply the concept of the veil of ignorance. The Supreme Court failed to evaluate

all of the ways its ruling will affect both the popular majority and unpopular minorities. It is

important to mention that this argument does not seek to take a stance on same-sex marriage. It

just points out why the Supreme Court’s decision making process surrounding this case was

inadequate. The ruling does not take into account all of the rights and liberties that were relevant

to the case. While the Supreme Court did consider the rights and liberties pertaining to the equal

protection of laws, it did not consider the rights and liberties pertaining to government

intervention. According to Clarence Thomas’ dissenting opinion, “The majority [of the court]

distorts the principles expressed by the Framers of the Constitution by portraying human dignity

as granted by the government rather than emanating from the individual. The Constitution is

meant to provide freedom from government intervention rather than the right to receive a

government entitlement” (Obergefell, Justia, 2016). This suggests that the Supreme Court’s

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ruling was not justified, because it threatens individuals’ ability to decide what is appropriate and

acceptable in society. According to Justice Alito’s dissenting opinion “There is no textual basis

in the Constitution or the history surrounding it that prevents states from developing their own

definitions of marriage. Rather than focusing on what the states are constitutionally required to

do, the majority substitutes a more nebulous view of what they should do, which is not within the

Court's power to determine” (Obergefell, Justia, 2016). This suggests that the Supreme Court’s

ruling was not justified, because it threatens the state governments ability to decide what is

appropriate and acceptable in society.

What is most problematic about the Supreme Courts’ ruling in Obergefell v. Hodges is

the precedence it sets. It places authority and power in the hands of the few, instead of the hands

of many. According to Justice Scalia’s dissenting opinion “The majority's [court’s] decision

threatens the democratic principles at the core of American society by allowing the judgment of

an elite few to substitute for the will of the many” (Obergefell, Justia, 2016). This recognizes

why it is not always justified for the Supreme Court to make rulings in favor of the unpopular

minorities when it goes against the will of the popular majority.

It can be argued that the Supreme Court is not acting wrongfully, because its rulings are

not being contested by the legislatures. However, this argument is not sufficient. While the

Supreme Court’s decisions can be readdressed, this infrequently happens. Rulings may not be

readdressed, because people support the Supreme Court’s decisions. However, rulings also may

not be readdressed, because people think the Supreme Courts will inevitably strike down similar

laws.

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Conclusion:

There are many steps the Supreme Court needs to take if it is going to return to its

original doctrine. To reiterate once more, the Supreme Court need to concentrate on limiting the

amount of litigation, focus on reviewing laws over making laws, and direct its attention towards

upholding the values of the popular majority while defending the rights and liberties of

unpopular minorities. Initially, the Supreme Court needs to make sure that it no longer defers to

the legislatures on economic issues. The Supreme Court should take economic issues into

consideration to the same extent as it takes cultural, political, and social issues into

consideration. Subsequently, the Supreme Court needs to make sure that it relies on the

Requisite Clause when reviewing cases and deciding rulings. The Supreme Court should take

into account both the popular majorities and unpopular minorities concerns over liberty and

equality. In doing so, it will be able to find the appropriate balance for protecting the rights of

both the popular majority and the unpopular minorities.

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