By Margaret Kimberley, BAR Exec Editor & Senior Columnist
July 5, 2023 Black Agenda Report
The Supreme Court has always been a political institution. Racism, political expediency, and outright corruption have always dictated its decisions.
“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; and that the negro might justly and lawfully be reduced to slavery for his benefit.”
-Supreme Court Justice Roger B. Taney, Dred Scott v. Sandford
The Supreme Court of the United States is enshrined in the Constitution as one of three branches of government, the other two being the Executive branch, the presidency, and the Legislative branch, the Senate and House of Representatives. In other words the Court is a lawmaking body. The 1954 Brown v. Board of Education decision was a landmark, a case that most Black people commit to memory. The Court declared that public accommodations could not be considered equal if they were separate, and thus began the long road to ending segregation in the law. The 1971 Roe v. Wade decision made abortion legal. There are numerous other instances of the Court making significant changes in this country’s political trajectory.
The Supreme Court is a revered institution, but the presidential nomination and Senate confirmation process make it a very politicized institution. When anyone on the left expresses doubts about voting for a Democratic Party presidential candidate they are immediately scolded about the need to protect the Supreme Court and keep it out of Republican hands. But a funny thing happened on the way to the conservative super majority.
Millions of people voted for Barack Obama thinking that his presidency would protect abortion rights, for example. During his 2008 campaign he said as much and promised to pass legislation which would codify the Roe v. Wade decision and take it out of the hands of the judiciary. But after his first 100 days in office he announced that the proposed Freedom of Choice Act was not his “highest priority .” In other words, he wasn’t going to lift a finger to protect abortion rights.
Not only did he betray his supporters but he dithered and dallied and allowed 80-year old cancer patient Ruth Bader Ginsburg to stay on the court when he knew that Democrats might lose control of the Senate. She didn’t leave, and Republicans won the Senate. Hillary Clinton’s inability to get 78,000 more votes in the right states put Donald Trump in office and Obama wouldn’t take the step of making a recess appointment to the court. Ginsburg died while Trump was in office and he chose her successor. The rest is history.
In 2022 the Court overturned Roe v. Wade with the Dobbs decision and now only 16 states guarantee a right to abortion. Recently the Court ruled that race cannot be a factor in college admissions, perhaps the 1,000th cut that kills off affirmative action for good. In another case the Court ruled that freedom of speech allowed a web site designer to refuse her services to a gay couple. The case is bad on the merits. It means that discrimination is now legal if one proclaims a right to discriminate based on personal feelings.
As if that wasn’t bad enough, it turns out that no such gay couple even existed. The person named as a gay man who wanted to create a wedding site isn’t gay, is in fact married to a woman, and found out his name was used in court documents only after he was contacted by the media.
Where have the Democrats been in all this turmoil? They have been pointing at Republicans, deplorables, extreme MAGA, Donald Trump and anyone else they can find to name and blame. A combination of miscalculation and not wanting to put up a fight have led to this point. They now claim to have been ardent abortion rights supporters, for example, but like Obama they just didn’t care. In 2017 House Speaker Nancy Pelosi publicly said that focusing on abortion was hurting the Democrats.
There is political malfeasance, cynicism and political corruption but the court itself is little more than a place for billionaires to buy the justice they want, literally and figuratively. Billionaire and Republican donor Harlan Crow has paid for luxury vacations for Supreme Court Justice Clarence Thomas for more than 20 years, with Thomas and his wife accepting trips on Crow’s yacht and private jet. Crow also paid boarding school tuition for the Thomases’ nephew and purchased a property from Thomas. None of these transactions were disclosed as gifts, which is what the law requires.
Not to be outdone, Justice Samuel Alito was also caught accepting a luxury vacation from billionaire Paul Singer, whose hedge fund was represented in cases before the Supreme Court. Like Thomas, Alito hadn’t disclosed his connection to Singer, nor did he recuse himself from the cases that involved Singer’s fund. When Pro Publica reporters sent questions to Alito about his relationship with Singer he didn’t respond. But he did wangle a Wall Street Journal rebuttal of a story that Pro Publica hadn’t even published.
So we have political corruption by Democrats who used the Supreme Court as a vote getting and fund raising device while refusing to use the legislative power they had in order to do what they claim they wanted to do. Rich Republicans cut to the chase and buy their justices fair and square.
Of course the Court could be expanded. Biden could fight for that right but he isn’t interested in fighting for what millions of people want him to do. As Chairman of the Senate Judiciary Committee Biden played a pivotal role in getting Thomas confirmed in 1991. According to former Senator Orin Hatch, Biden didn’t believe Anita Hill’s allegations of sexual harassment. He certainly wanted her to disappear so that he could continue the time-honored practice of deal making and going along to get along with his putative opposition.
It is important to keep these facts in mind as Black people live and die by Supreme Court decisions. Plessy v. Ferguson made segregation the law of the land for some 60 years. We now see that those bad old days are never far away. Nearly every Black person knows that Dred Scott’s claim to be a free man was nullified by the Supreme Court, with Chief Justice Taney stating that Black people had no citizenship rights whether they were free or enslaved.
“It is obvious that they were not [60 U.S. 393, 412] even in the minds of the framers of the Constitution when they were conferring special rights and privileges upon the citizens of a State in every other part of the Union. Indeed, when we look to the condition of this race in the several States at the time, it is impossible to believe that these rights and privileges were intended to be extended to them.”
The Dred Scott v. Sandford case was another example of corruption. Newly elected president James Buchanan wanted the outcome of Scott’s appeal for his freedom to end any and all debates on slavery. He corresponded with several of the justices before he was inaugurated and put his thumb on the scale. The ruling that not only was Scott still enslaved but that Black people had no citizenship rights at all didn’t end any debates over slavery and a civil war ensued four years later.
It is important to remember Scott and Plessy and to reconsider the inclination to hang onto illegitimate relics like the Supreme Court in hopes of securing justice. Victories may come but they can’t be counted on, even when the allegedly correct party is in office. The cycles of elation and disappointment have been going on ever since the 1875 Civil Rights Act was declared unconstitutional by the Supreme Court in 1883. For decades Black people voted for the party they believed was friendliest to their interests, Republicans at the time, in hopes of resurrecting the legislation but help never came from the electoral process. There was no Civil Rights Act until 1964.
There are no saviors in Congress, the White House or in the Supreme Court. There won’t be as long as the system is corrupt. It isn’t really surprising that billionaire rule extends to the Supreme Court. Why would the lords of capital leave Thomas or Alito to their own devices when they can buy them off? Why would Democrats protect abortion rights when they can fool the public and cut backroom deals with the people they claim to oppose?
The Supreme Court is clearly undeserving of the reverence with which it is treated. It exemplifies everything that is wrong with this country. Vote shaming and arm twisting efforts to secure Democratic judicial appointments is the last refuge of scoundrels. No one should fall for the con job any longer. It is time to pave the way for a new politics of liberation that doesn’t depend on false hopes.