That’s a pretty harsh charge and I understand that, but we have to understand a few things in order to have a conversation.
First of all, let’s stop arguing about whether the court is a political entity or not. Of course it is and always has been. The Constitution itself is a political document and so are the laws Congress enacted and upon which the court deliberates.
Second, the court has always found in favor of America’s founders and it’s no secret that they were white, slave-owning, racists who declared all men to be equal. Never mind that ‘all men’ (which I take to mean all humanity) disenfranchised the female half of Americans, counted owned-slaves as 3/5 of a man and ignored the native indigenous population.
On June 21, 1788, the Constitution became the official framework of the government of the United States of America when New Hampshire became the ninth of 13 states to ratify it.
A flawed document from the beginning
Amendments were demanded during the occasionally furious battle over confirmation and the first thirteen were offered up immediately on September 25, 1789. Thirteen were proposed and ten approved.
It’s worth noting that freedom didn’t come to slaves until seventy-six years later (1865). American women waited 132 years and although black women were included, many states passed laws disenfranchising them. Native Americans weren’t allowed to vote for 136 years (1924). All men were created equal, as long as they were actually men and were white and owned land–and slaves, if they happened to have them.
But we keep trying
Yeah we do. Thank god for that. Altogether, the Constitution has been amended twenty-seven times, the last as late as 1992. So it is, if nothing else, a malleable document, which is its greatest strength and largest weakness. The law of the land is interpreted by nine robed justices, all of them politically appointed by the President and politically approved by the Senate.
It’s the best we can do and we do it badly, because we are a young nation, still on a learner’s permit. And who’s to say that’s not our greatest strength and largest weakness as well.
Forty years building to Public Enemy #1
That’s a tall order but, as we swung toward a more and more partisan and dysfunctional Congress, the black-robed Supremes were up to the task. The cases are listed and the nominating authors of all but a few can be seen at Time Magazine.
- (1973) San Antonio Independent School District v. Rodriguez. This decision held that inequities in school funding do not violate the Constitution. The court thus said that discrimination against the poor does not violate the Constitution and that education is not a fundamental right. It played a major role in creating the separate and unequal schools that exist today.
- (1986) Bowers v. Hardwick. The worst decision since 1960 is Bowers, in which the court upheld the constitutionality of a Georgia anti-sodomy law. It was narrow-minded, cynical and offensive, very much in the sad tradition of Plessy v. Ferguson.
- (1987) McCleskey v. Kemp declared that Georgia’s application of the death penalty did not violate its victims’ Equal Protection rights, despite admitting that racism played a substantial role in determining who received the death penalty and, by implication, insulated the entire criminal justice system from any obligation not to be discriminatory in effect or operation.
- (2000) Bush v. Gore. On its four corners the decision may be plausible, but put in the context of the circumstances and the justices who voted to make up the majority, this case is the paradigm of transparently politically driven, unprincipled constitutional analysis.
- (2005) Kelo v. City of New London declared that using the power of eminent domain to take property from poorer people and give the property to large corporations (who pay more taxes) to be a “public use” under the Takings Clause of the 5th Amendment.
- (2013) Shelby County v. Holder. The Roberts Court’s evisceration of the most important civil-rights legislation passed since Reconstruction was its lowest moment. The impact of the decision to reverse a key part of the Voting Rights Act is anti-democratic, allowing numerous illegal voter-suppression schemes to go into effect, and making it much more difficult to stop them. But what makes Shelby County especially egregious is its threadbare legal reasoning, which can’t even be called “constitutional law.” The Constitution unambiguously gives Congress the power to enforce the 15th Amendment. The “equal sovereignty of the states” doctrine that the chief justice used to trump Congress’s explicit powers is a Roberts invention, and he has yet to identify any constitutional basis or Supreme Court precedent for it.
Full circle, racist Constitution to racist Supreme Court
There is no other logical conclusion and if Black Lives Matter has become the rallying cry of the unempowered minorities, there are plenty of Tucker Carlsons to cheer those circumstances. Perhaps if white men wearing bow-ties were stopped and shot down while trying to negotiate getting safely out of their cars, Tucker would take a different course of rhetoric.
But his is the most watched show on Fox News, much to Sean Hannity’s discomfort. Tucker, god help us, is even pimped as a 2024 presidential candidate.
All in a day’s work, Chief Justice Roberts
They say that Roberts is getting concerned about the public opinion of the court. He needn’t fear. Racism plays well to the electorate in America. But I have a solution, as you knew I would—an unlikely circumstance, but then we all can dream, can’t we? We work far more equitably with 5-4 courts.
Wouldn’t it be nice if presidents, when presented with a court nomination, worked for balance rather than control? We balance most other things in life—automobile engines, bank accounts, scales of justice (if only in theory), grandfather clocks and teeter-totters on the playgrounds.
Got a five to four court?
Nominate someone on the short-end, no matter the politics. Nah, I guess that’s too much to ask—certainly way too much for Mitch McConnell.
Photo Credit: newyorker.com