It is Time To Rethink the Supreme Court

In the United States, we are taught to revere our democratic principles and the democratic republic established by the U.S. Constitution. We venerate the principle of separation of powers as though it were part and parcel of democracy, and seldom question our unelected judicial branch. The Supreme Court, and the courts in general, are often viewed as a positive force for protecting the rights of oppressed minorities from the tyranny of the majority. Yet, the reality of the situation is that more often than not our unelected courts serve not as a protector of our civil liberties and the rights of the powerless minority, but as a shield for the empowered minority of the 1%. The court system is an undemocratic feature of our republic, which was meant to protect the property rights of the haves from a government captured by the laboring majority. The court's record on civil liberties is mixed at best, but its record on protecting the property of the ruling class is sterling.

In the case of Dredd Scott vs. Sanford the court could be seen as a protector of minority rights. It’s just they protected the wrong minority. Their ruling protected the minority of slaveholders in the country, and upheld the right to property even when that property was a fellow human being. They went even further to deny the citizenship of any non-whites and thus to deprive many Americans of a whole host of rights. The Court also reached out and took a jab at democracy, declaring that the elected Congress of the US could not forbid slavery from its territories. There could be no clearer example of the court stomping over civil liberties and democracy in defense of property rights than the Dredd Scott case. And this is a fact that was well recognized at the time. When Lincoln ran for Senate in Illinois, and later for President of the United States, he ran against the ruling of the court. In his first inaugural speech, with Chief Justice Taney behind him, he told the American people, “if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribune (Irons, 1999: 181).”

When the question was the liberty of blacks, both free and slave, the court showed itself to be worse than indifferent. In these cases the court was hostile, actively reaching out to make a broader and more repressive ruling then required. It is doubtful that the courts would have ever protected civil rights of blacks without those rights first being unequivocally declared by the Congress. Yet when it came to ensuring property rights, even human beings held as property, the court was a trusted ally. Where the Court failed, the President and Congress would prevail. Lincoln sought to utilize his power as Commander in Chief during the war to end slavery where he could, and then he and Radical Republicans pushed through the 13th Amendment, ending slavery forever. A few years later Congress would go further and ensure the citizenship of all, regardless of race, and the equal protection under the law with the 14th Amendment, as well as voting rights for all races of men with the 15th Amendment.

While it is clear to most that the intent of the 14th Amendment was to protect the civil rights and ensure the new freemen of the South equality before the law and full participation in civil society, the Supreme Court managed to twist its meaning and dilute its power. In the Slaughterhouse Cases, the Supreme Court searched for a loophole in the 14th Amendment, ignoring the plank in their eye to focus on the smallest of wordings. They claimed there was both state citizenship and national citizenship, and that the 14th Amendment only referred to the latter. Therefore, they laboriously claimed, it only applied to national rights, and not rights conferred by the states (Irons, 1999: 200).

The court would go even further by 1876 in United States vs. Cruickshank. The case here involved armed white mobs’ violent attacks on blacks who were exercising their voting rights. The specific attack was a full-scale slaughter of deputized blacks in the Colfax courthouse as they attempted to fly the white flag of surrender. Under the Enforcement Act of 1870 some members of this white mob were brought up on charges of denying to blacks their right to peacefully assemble and their right to life and liberty. The court, in a unanimous decision, denied that race was a motivating factor, declared that the Bill of Rights did not apply to the state governments, and that due process and equal protection under the 14th Amendment could not be applied to individual actions, but only to state actions. What this meant in fact was that the federal government’s attempts to protect blacks during reconstruction were brought to an end by judicial decree (Friedman, 144 and Irons, 204). What rights had been granted by the hard work of Congress were now undone by the unelected edict of elitist justices who showed no more concern for the civil rights of blacks than the Klan members who were actively oppressing them. The black robes of the court gave legal backing to the brutal attacks of the white robes of the KKK.

  In 1883, the Supreme Court heard the Civil Rights Cases and used its power to nullify federal law and return blacks to second-class citizenship and near slavery conditions. The court claimed that the 14th Amendment only applied to the actions of the states, and that all other discrimination by individuals and corporations was lawful. The Civil Rights Act of 1875, they claimed, exceeded Congress’s authority when it banned discrimination in all public facilities. This ruling was so objectionable that even a former slave-owner, Justice John Harlan, had to object. In dissent he pointed out that the 13th Amendment had applied to individual slave-owners, not just the state (Zinn, 2003: 204).

        The Supreme Court closed the century by closing the book on equality and civil rights for blacks in the Jim Crow South. As the Court was preparing to hear a challenge to Louisiana’s law requiring “separate but equal” train cars for whites and non-whites, the lawyer of Homer Plessey, Albion Tourgee, commented: “The Court has always been the foe of liberty, until forced to move on by public opinion (Irons, 1999: 226).” Tourgee had good reason to be pessimistic. The court ruled 8-1 that segregation was legal, as long as it was "separate, but equal".

Even if the Court wasn’t stacked with justices predisposed to the wealthy, the legal system is already structured in favor of those with means. This process, unlike voting, is not free and open to anyone who wishes to use it. Lawyers cost money. Even if people are entitled to a public defender these people are often overworked and on average have only a few minutes to spend with each defendant. This is a system that ranks twentieth out of thirty-five on the rule of law index. A system that is viewed as fair by only 40% of low-income people who used the system as opposed to 71% of high-income respondents. This gap is the highest of all countries surveyed (Greenwald, 2011: 250). The poor are more likely to be held accountable to the law then the wealthy, according the Greenwald, so it should not be surprising that this bias carries all the way up to the Supreme Court. The Court not only decides who broke the law and what punishment they deserve, but also decides what the law is and what laws should not be enforced. This means that the least democratic branch, one skewed heavily in favor of the wealthy is subverting the will of the people. It does so not to protect those with the least but to protect those with the most. It is the ultimate protector of oligarchy over democracy. Judge Cavanaugh's confirmation is a low point in the history of the Supreme Court, but let's be honest, the history of the Supreme Court has far more low points than high points. Perhaps it is time to rethink the entire system of the Supreme Court, and change our Constitution.