Introduction

At the beginning of the American Revolution, Thomas Paine wrote what might be the most important book in American history, Common Sense. In it he explained in common language, and with great insight, why law is central to American culture: “Let a day be solemnly set apart for proclaiming the Charter; let it be brought forth placed on the Divine Law, the Word of God; let a crown be placed thereon, by which the World may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is Law, so in free Countries the law ought to be king; and there ought to be no other.”

A half-century later, in Democracy in America, his classic book observing American society and culture, the French scholar Alexis de Tocqueville observed: “In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society. . . . If I were asked where I place the American aristocracy, I should reply without hesitation that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and bar.” He concluded that “The courts of justice are the only possible medium between the central power and the administrative bodies; they alone can compel the elected functionary to obey, without violating the rights of the elector.” Because of the nature of the Constitution, de Tocqueville observed, “Few laws can escape the searching analysis of the judicial power for any length of time, for there are few which are not prejudicial to some private interest or other.” But he thought this was central to the success of the nation, concluding: “The peace, the prosperity, and the very existence of the Union are vested in the hands of the seven judges (which was then the size of the Supreme Court). Without their active co-operation the Constitution would be a dead letter: . . . Their power is enormous, but it is clothed in the authority of public opinion. They are the all-powerful guardians of a people which respects law, but they would be impotent against popular neglect or popular contempt.”

Indeed, it seems that sooner or later almost every major political, social, and economic issue in the United States ends up at the doorstep of the Supreme Court. That Court cannot always solve these issues—for example, the Court’s attempt to settle the national debate over slavery led to the disastrous decision in Dred Scott v. Sandford (1857), which settled nothing and indirectly, at least, helped push the nation closer to civil war. Sometimes the Court simply gets it wrong, and individuals or whole communities suffer. In Frank v. Mangum (1915), for example, the Court refused to require that a state give a criminal defendant a fair trial, In the end the defendant, Leo Frank (who was clearly innocent of any crime), was sentenced to life in prison but then lynched by a carefully planned attack on the state penitentiary. A different decision might have led to his being freed before this could happen. On the other hand, sometimes the Court has been able to cut through social conflict to solve something the political institutions were incapable of dealing with. In Brown v. Board of Education (1954) the Court unanimously concluded that segregation in schools was unconstitutional. Thirteen years later the Court asserted, in Loving v. Virginia (1967), that state prohibitions on interracial marriage were also unconstitutional. It would be hard to find any responsible public officials or citizens who would reverse these outcomes, and in the end, many of the strongest supporters of racial segregation came to praise these decisions for cutting the gordian knot of legalized racism in the American South.

Similarly, in Baker v. Carr (1962), the Court required states to have legislative districts that were as close as possible to being equal in size. At the time many states had districts that were mockeries of democracy. For example, in Vermont one legislative district had only 238 people, while another had about 33,000 people. California had one state senate district with about six million people in it, while another district had about 14,000 people. But the existing state legislatures would never have redistricted on their own, because some legislators would have lost their seats, and overrepresented rural districts would have lost power to cities and suburbs with greater populations. Chief Justice Earl Warren considered this to be the most important decision of his career, because it made America more democratic and made fair representation a reality. Today almost all state legislative districts are nearly identical in size, making all votes in the state “equal.”

The Court issued its very first opinion on August 3, 1791. West v. Barnes was a relatively insignificant dispute over land between citizens of Massachusetts and Rhode Island. Since then, the Supreme Court has decided thousands of cases and also declined to hear even more cases. Most are not major cases, although they were usually important to the parties. In these volumes we have chosen the most iconic, important cases in the Court’s history. They cover the development of American political institutions; issues of slavery, race, and the rights of minorities; the fundamental liberties of the American people; and political disputes between states, between states and the national government, and disagreements between one branch of the government and another. There are cases on freedom of religion, freedom of speech and the press, and the struggle to provide fair trials for accused criminals. The cases here show the slow movement in America for legal and social equality for women, African Americans, Asian Americans, Hispanic Americans, and other minorities. The rights of people to live their private lives, in private, has been before the Court on such issues as birth control, pregnancy, marriage, and private relationships between adults. There are big cases involving national leaders, from Secretary of State James Madison to Presidents Richard M. Nixon, Bill Clinton, and George W. Bush.

Could there be other cases in this set? Surely there could be others. As the Editor in Chief, I had to make tough and painful decisions of what not to include. But I believe that these cases provide a powerful lesson in American constitutional law and constitutionalism. They demonstrate how Americans have turned to the courts for personal justice, economic opportunity, access to the political process, and protection of minorities and those who are without political power. Today many of the decisions in the cases appear abhorrent. They have been overturned by the court of history, by constitutional amendments, state and federal laws, and subsequent Supreme Court decisions. Readers will notice that in many cases, we’ve chosen to include dissents along with the majority opinion in a case. Very often, the dissents are more important than the opinion of the Court, because the dissents have pointed to the future, and for more fair justice and law.

—Paul Finkelman, Robert E. and Susan T. Rydell Visiting Professor, Gustavus Adolphus College, and the President William McKinley Distinguished Professor, Emeritus at Albany Law School