Many of my readers often assume that my major field of study is literature, because I post a poem every Tuesday and I write book reviews on a semi-regular basis. However first and foremost, I am a historian. All of my degrees are in history, but my doctoral studies were based on cultural history which included art, architecture, and literature. Whenever, I am studying something, I study it through a historical eye. Historical analysis is my modus operendi.
In recent weeks, I have been contemplating the anticipation/apprehension of the impending Supreme Court decision on same-sex marriage. A U.S. district court judge has ruled that Alabama’s same-sex marriage bans are unconstitutional, but placed a fourteen day stay on her decision to allow time for the Alabama Attorney General Luther Strange to attempt to extend the stay until the Supreme Court makes a decision. The 11th Circuit refused to extend the stay, and AG Strange is now attempting to get the Supreme Court to extend the stay pending their decision. If the Supreme Court follows its own precedent, it will allow the stay to be lifted on February 9, 2015, as planned.
The Court has allowed lower courts’ rulings to stand, bringing marriage equality to state after state, now with 36 in total. It would be quite chaotic if the Supreme Court didn’t strike down marriage bans now. And the court will be seen as having been exceedingly reckless. That doesn’t seem like something Justice Kennedy wants as his legacy on gay rights, having crafted it very carefully for several decades. He’ll go all the way, and the liberals will go with him.
It seems to be a foregone conclusion that the Supreme Court will rule in favor of same-sex marriage, but the question is still being asked as to how far the ruling will go. If Roberts decides to vote with Kennedy and the four liberals, he would then control the decision, because as Chief Justice, he could assign it to himself or any of the other justices. He could keep it away from Kennedy. If he votes for marriage equality, he would keep the decision for himself, and he would try to write it as narrowly as possible. In the past, Chief Justices have switched to the majority so that they can narrow the scope of the opinion.
As I look at the speculation concerning what the Supreme Court will do when it decides same-sex marriage in this term, I began to wonder: has their been similar situations in which this much speculation has been covered in the media on other issues? For most of its history, the U.S. Supreme Court has been seen as the lesser branch of government, as dominance has always passed between Congress and the President. Last night I did a fair amount of research to see if I could find any pre-decision media coverage of major Supreme Court cases. In history, we study the significance of a decision and occasionally (but not always) the story that led to the case being heard before the Supreme Court.
The question I have though is how much is the general public aware of cases going before the Supreme Court. Have Americans been aware enough before a decision is made to weigh in on the speculation? For instance, did most southerners know that Brown v. Board of Education would be decided in 1954? Were they aware enough to think about the consequences? As a student of history in the South, I have studied a great deal about the Civil Rights Movement, but I cannot remeber reading about reactions to school desegregation until after Brown was decided. Thinking of cases in my lifetime, I cannot think of a single instance other than Windsor v. United States in which this much speculation has occurred in a Supreme Court case before the decision was made.
No doubt there are legal scholars who speculate on Supreme Court rulings for a living, and I know there are reporters who cover the Supreme Court and thus speculation is part of their job. However, has Americans themselves been thrown into the speculation game. Maybe much of it has to do with the controversy drummed up by political figures wanting to get air time on television, or the abundance of 24 hour news networks, but it seems to me like this is one of the few times that America is actually waiting to see what the Supreme Court will do.
Legal history is not my forte, so it is entirely possible that there are numerous cases that caused controversy and speculation before the court ever issued an opinion. And maybe I’m just interested in this issue and therefore I’m paying more attention to media coverage. If I had the time, I could begin searching through newspapers looking for mentions of the Supreme Court’s terms, but unless someone wants to give me a huge grant to conduct that research, I don’t have the time or the energy to search through 225 years of newspapers.
So since my curiosity is up, I am going to ask my readers this question. Have you ever known there to me so much media coverage and speculation over an issue that has come before the Supreme Court?