The Volokh Conspiracy
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The Lesson From Supreme Court Justices Changing Their Minds
For all of the commentary West Virginia Bd. of Ed. v. Barnette has received over the years, perhaps one of the more stunning aspects of that case was two Supreme Court Justices changing their minds.
The following is an excerpt from Chapter 6, "Be Open to Change," of my book Habits of a Peacemaker:
In the introduction, I mentioned the 1943 Barnette case, in which the Supreme Court ruled that school districts could not force Jehovah's Witness children to say the Pledge of Allegiance. I return to that now to illustrate an important principle. The case is remarkable for a number of reasons. It represents the foundation and, arguably, the founding of our modern understanding of freedom of speech and thought. It included what is often considered to be some of the most powerful language regarding the limits of government action in the modern era. In addition to what I shared in the introduction, it includes some of these important gems:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
Or this, when talking about our constitutional system and how it limits government from having power in certain areas of our lives:
Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it makes for its better support. Without promise of a limiting Bill of Rights it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government…. Observance of limitations of the Constitution will not weaken government in the field appropriate for its exercise.
And, finally, this sentence, explaining the purposes of the Bill of Rights:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
It may come as a shock to those not trained in the law, but the above quotations were not well established as part of the American experience until around the time of the Barnette decision, in the middle of the twentieth century. Prior to that, government, and particularly state and local governments, enjoyed tremendous power over people's lives. The primary reason we don't often hear about that is because lawmakers for the first one hundred years of our country's existence were less inclined to pass as many laws as they do today.
The Barnette decision represented an important shift in American constitutional law and one that paved the way for much of the success and growth—with its accompanying discomfort—of the twentieth century.
But it was almost not to be.
The first time the Jehovah's Witnesses asked the court to rule in their favor, the justices decided differently. As already explained, three justices then retired and were replaced. Two more changed their minds. Consider how remarkable that is. It is difficult today to imagine a Supreme Court justice changing his or her mind after only a few years, especially when so much is at stake. These cases arrived at the court during the height of World War II. The impetus for wanting children to recite the Pledge of Allegiance was to instill a love for the United States and the promotion of good citizenship at a time when the nation's very existence seemed to be in question. The cases were controversial, just as many are today. With Nazi Germany in Europe and imperial Japan in the Pacific, the stakes could not have been higher. What the Jehovah's Witnesses were asking was strange to everyone around them.
Yet Justices William Douglas and Hugo Black changed their minds. In doing so, they helped solidify one the most important Supreme Court decisions in modern history. When they did, they said, "It is appropriate that we make a brief statement of reasons for our change of view." They explained that they had been reluctant to apply some of the terms of the federal Constitution to state laws—something courts did not do until the early twentieth century.
Then they offered the important line for our purposes: "Long reflection convinced us that although the principle is sound, its application in the particular case was wrong."
Long Reflection
I am not interested in discussing here why the court ruled the way it did in that particular case, nor in whether we as readers eighty years later agree with the outcome or the court's reasoning to get there. Legal academics have spilled gallons of ink exploring and dissecting those issues. Instead, I want to focus on how these two justices changed their minds. They listened to the best arguments the other side could muster. Then they engaged in long reflection. To do that, they opened their minds to the possibility of change. They considered the reality that they may have been wrong. Unlike politicians, they didn't need to worry about losing their jobs for doing so. And unlike justices today, they didn't need to dread endless hours of cable news and social media condemnation for their decisions. Instead, they considered new and more sophisticated arguments and came to believe that the rule they had wanted to apply was not the right way forward.
I pause here to emphasize the importance of both the word "long" and the word "reflection." It is okay to have a high threshold for how much evidence and logic we need to change our minds—it may require a long period of time to explore and examine a topic before we allow ourselves to be convinced. Otherwise, we risk shifting too much too often. But without being willing to change our mind, to at least consider the evidence and logic others might present to us, we abandon all hope of finding better solutions to the world's problems.
This is what peacemakers do. With intellectual humility comes the recognition that there may be more to learn about any topic and that as we learn, our positions may change. Peacemakers do not fear that. They do not see it as selling out or compromising on core values. Quite the opposite. For Justices Douglas and Black, their core values had not changed at all. What they realized was that the rule they had originally adopted was not the right way to achieve their core values.
