The
U.S. Supreme Court heard oral arguments on a sweeping new abortion
law in Texas on Monday. The law, which went into effect in September,
bans abortions after six weeks and relies on
private-citizens-turned-bounty-hunters to enforce the law at $10,000
a head. The court’s decision not to block enforcement of the
law before it went into effect places the legitimacy of the high
court in question.
Today’s
Supreme Court may be the most conservative it has been since
the 1930s,
and its recent decisions only highlight that its right-wing
supermajority is captive to anti-democratic forces and the result of
the corruptive influence of dark
money,
which has supported the confirmation of extreme conservative
justices. Despite claims to the contrary, conservative justices have
left the unmistakable impression that they are political operatives.
Justice Clarence Thomas recently appeared at a Heritage Foundation
event featuring Senate Minority Leader Mitch McConnell (R-Ky.)
singing the justice’s praise, for example.
However,
this is not the first time, nor is it a rare moment when the
judiciary stood against democracy and civil rights. For most of its
existence, the court has not been a moderate,
apolitical body,
but rather has oppressed marginalized groups and protected White male
landowners, the group long considered ideal political citizens, who
wrote the Constitution, and for whom the Constitution was written.
“First,
as a matter of historical practice, the court has wielded an
antidemocratic influence on American law, one that has undermined
federal attempts to eliminate hierarchies of race, wealth and
status,” Nikolas
Bowie,
an assistant professor of law at Harvard Law School, testified to the
Presidential Commission on the Supreme Court of the United States
that was formed last spring. “Second, as a matter of political
theory, the court’s exercise of judicial review undermines the
value that distinguishes democracy as an ideal form of government:
its pursuit of political equality.”
Bowie
noted that Alexis de Tocqueville identified jurists as the American
aristocracy, a privileged class with lifetime tenure who, as “the
priests of Egypt,” regarded themselves as “the sole
interpreter of an occult science” of the Constitution. He also
pointed out that the Supreme Court has consistently protected the
wealthy, invalidated federal laws enacted to increase political
equality and has shown deference to Congress when it passed laws that
harmed “racial, religious or ideological minorities” such
as Native Americans, Chinese immigrants, those who live in U.S.
territories, Muslim refugees and others.
In
the 1857 decision in Dred
Scott v. Sandford,
for example, the Supreme Court blocked citizenship for Black people
and ruled that Congress had lacked the authority to pass the Missouri
Compromise,
which banned slavery in new territories. The court’s majority
was composed of five justices from slavery states, including Chief
Justice Roger B. Taney, a former enslaver who was ardently
proslavery.
In
delivering the opinion of the court, Taney wrote of Black people,
“They had for more than a century before been regarded as
beings of an inferior order, and altogether unfit to associate with
the white race, either in social or political relations; and so far
inferior, that they had no rights which the white man was bound to
respect.” This philosophy justified slavery, enabling Black
people to be “bought and sold, and treated as an ordinary
article of merchandise and traffic, whenever a profit could be made
by it.” The decision ruled the hallmark of the platform of the
new Republican Party, banning the extension of slavery,
unconstitutional.
Similarly,
in 1896 in Plessy
v. Ferguson,
the court gave the green light to Jim Crow racial segregation laws
that Southern states enacted after Reconstruction to disempower,
repress and terrorize Black people under the fraudulent doctrine of
“separate but equal.”
The
Insular Cases
of 1901 reflected the “manifest destiny” philosophy of
conquest and White supremacy at the turn-of-the-century, leaving the
residents of territories the United States acquired in the
Spanish-American War - Puerto Rico, Guam and the Philippines - as
second-class citizens not entitled to full protection under the
Constitution. Those people were, according to the Supreme Court,
“savages,”
“uncivilized” and “alien races”
and “foreign
in a domestic sense.”
The
Supreme Court further revealed its racism in Korematsu
v. U.S.,
when it shamelessly upheld the wholesale incarceration of 120,000
Japanese Americans in detention camps during World War II.
Certainly
there are examples in which the high court has upheld the rights of
the marginalized and disadvantaged. However, as Vinay
Harpalani,
associate professor of law at the University of New Mexico, has
noted, “even when the U.S. Supreme Court makes rulings that
seem to favor people of color, those rulings usually serve the
interests of wealthy, elite White Americans.”
Harpalani
cited how the Brown
decision stemmed in part from Cold War strategy and the need for the
United States to appeal to people in African, Asian and Latin
American countries. “Racial segregation at home did not bode
well in this context, especially when contrasted with communism’s
emphasis on equality,” Harpalani said. “So civil rights
advances like Brown also had the effect of increasing America’s
global economic and military reach, which of course benefits elite
White Americans the most.”
Other
decisions that appeared to advance equity were rooted in upholding
U.S. power abroad. Justice Sandra Day O’Connor’s majority
opinion in the 2003 Grutter
v. Bollinger
affirmative action case explicitly cited diverse leadership as a
requirement for America to safeguard its global economic and military
interests.
At
a time when civil rights and voting rights have emerged as partisan
issues, the Republican Party has made voter suppression a hallmark of
its strategy. Whether intentionally or not, the Supreme Court has
aided this quest, eviscerating the Voting Rights Act in Shelby
County v. Holder (2013)
and allowing for the unlimited influence of money in elections with
Citizens
United v. FEC (2010).
Decisions
that appear partisan, along with the growing gap between the
electorate and the court’s composition, have fostered a crisis
of legitimacy that is evident in declining public approval. Large
majorities
of the public across party affiliation believe the Supreme Court is
driven by politics rather than the law, while public
approval
of the court has fallen to an all-time low.
Several
justices have protested that they are not partisans. Flanked by
McConnell at the University of Louisville’s McConnell Center,
Justice Amy
Coney Barrett
recently said, “this court is not comprised of a bunch of
partisan hacks,” but is instead governed by “judicial
philosophies.”
Similarly,
Justice Samuel
Alito
insisted the Supreme Court is not “a dangerous cabal”
that is “deciding important issues in a novel, secretive,
improper way, in the middle of the night, hidden from public view,”
and criticized journalist Adam
Serwer
for calling judicial impartiality a lie and accusing the imperious
court of nullifying Roe
v. Wade. Liberal
Justice Stephen
G. Breyer
affirmed that “it is a judge’s sworn duty to be
impartial, and all of us take that oath seriously.”
But
history shows there is every reason to believe the judiciary will
continue to uphold property rights over human rights under its
current configuration, and following the original intent of the
Founders, promote the interests of the Founders’ demographics.
No
one believes judges - or journalists, or scholars - have no opinions.
The question is whether justices will be fair and seek justice for
the people. The liberal Warren court (named for Chief Justice Earl
Warren) that ruled in favor of equality and expanded criminal and
voting rights in the 1950s and 1960s was an outlier in U.S. history.
Unless court reform is enacted to fundamentally change the
institution, the judiciary will continue to erase our basic rights -
not only abortion and civil rights, but also labor rights aimed at
addressing economic inequality, LGBTQ rights, environmental justice
and more - and destroy what is left of our multiracial democracy.
This
commentary was originally published by
The
Washington Post and MSN News
