THE RECENT United States Supreme Court decision in the case of Bush v. Gore unleashed a torrent of controversy. Polls released shortly after the case was announced showed a deep division in public opinion: Republicans overwhelmingly supported the decision and Democrats overwhelmingly condemned it.(1) The web teemed with articles by legal scholars, many opposing the Court's decision, and chat rooms bristled with pros and cons. (2) The decision also engendered a rash of books by notable legal writers, including Alan Dershowitz, Gerald Posner, and Vincent Bugliosi, critiquing the Court's opinion and rationale. One commentator called the case "one of the most controversial rulings in the court's history." (3)
Throughout its history, the U.S. Supreme Court has rendered controversial decisions. In one sense, all Supreme Court cases are controversial, at least to the parties involved and to broader interests that are affected. For a case to reach the Supreme Court, it must meet the original or appellate jurisdictional requirements outlined in the Constitution, survive the appellate process, and present an active controversy. In another sense, however, few cases are truly controversial, as most receive little public notice and affect only a small segment of society. (4)
As social studies educators, we know that using controversial Supreme Court cases in the classroom can stimulate discussion, increase knowledge of issues and institutions, and help students hone their critical-thinking skills. Thus, it is worth asking what makes a particular case controversial and which cases are best for classroom use.
A Supreme Court case might have three dimensions of controversy: political, popular, and legal. A case is politically controversial by spurring action or reaction in other branches or institutions of government. For example, the famous case of Brown v. Board of Education engendered significant resistance by several state governments and ultimately forced the U.S. executive and legislative branches to act. Also, on numerous occasions Congress has obviated Supreme Court decisions through the constitutional amendment process. The Fourteenth Amendment reversed the Court's Dred Scott v. Sanford (1857) decision by guaranteeing black Americans citizenship, and the Sixteenth Amendment overturned the Court's decisions in Pollock v. Farmers' Loan and Trust Co. (1895) and other cases that had ruled income taxes unconstitutional. Controversial cases with this dimension can lead to student learning about the structures of government, federalism, separation of power, and checks and balances, as well as about the issues of the particular case.
A Supreme Court case is popularly controversial when addressing an issue, often moral or religious, that deeply divides society. Discussions of such cases focus on the public reaction to a decision, often prompting grassroots efforts, protests, and political organizing. Classic examples include the movements espousing right to life and school prayer. Popularly controversial cases allow for students to learn about informal political processes and to discuss and analyze values.
In legally controversial cases, legal scholars, writers, and judges respond not so much to the outcome of the case, but to questions about the rationale that the Court used to reach its result. Legal controversy lends itself to critical-skill development by offering students the opportunity to examine precedents, logic, analogy, and consistency in the case.
Few controversial cases fall into only one category because the categories themselves overlap. For the sake of analysis, let us consider a few historical Supreme Court cases.
Marbury v. Madison, 1 Cranch 137, 2 L.Ed, 60, (1803)
In this case, Chief Justice John Marshall established the Court's power of judicial review by declaring an act of Congress unconstitutional. Under the Judiciary Act of 1789, Congress had granted the Court the power to act in an area not covered by Article III of the Constitution. …