Black lives don't matter to the Supreme Court: Conservatives continue the tradition of kowtowing to power
It is 2020 and our streets are packed with protesters demanding that "Black Lives Matter!" But for Donald Trump and his Republican Party, it is still Richard Nixon's 1968 of law and order. But for the past several years, our technology has enabled us to see first-hand what law and order can mean. Too often, it is a dog whistle for blatant racism and a two-tiered system of justice.
Donald Trump faces declining poll numbers and a need to shore up his base. What if he attempts to assert himself in a way that abuses his position of commander in chief? There is a good chance that between now and the election, we may find ourselves at the U.S. Supreme Court.
While we are a nation of laws, the recent history of the Supreme Court offers little comfort that it will side with the powerless and the oppressed. John Roberts, our current chief justice, clerked for and was mentored by the previous chief justice, the late William Rehnquist.
Except for the progressive period of the Warren Court, the Supreme Court has a long and shameful record dealing with people of color. It includes the 1857 Dred Scott v. Sandford decision that black people, free or slave, were not entitled to any of the rights of privileges or the Constitution; Plessy vs. Ferguson, the 1896 decision that enshrined "separate but equal" in our legal code and consigned African Americans to second-class citizenship for generations; and its 1944 decision in Korematsu v. the United States saw nothing wrong with the wartime incarceration of 120,000 Japanese Americans, the majority American citizens, without a shred of evidence that they were disloyal.
It was this America that Chief Justice William Rehnquist wanted to return our country to—in spirit, if not in practice—when Richard Nixon nominated him to our highest court in 1971. And it is this political worldview that still informs today's court, albeit under a more affable version in Chief Justice Roberts. It is the conviction that the majority decides what rights minorities should have access to.
Rehnquist arrived on the bench in the waning days of the Burger Court. The court had drifted to the center after the Warren Court moved our nation toward a more equitable and fair society in the postwar '50s and '60s. The Warren Court believed that the Constitution was a living, breathing document in service to the changing times, not an 18th century legal constrict. We continue to benefit from their farsightedness in landmark decisions including Brown v. Board of Education, Miranda v. Arizona, and Roe v. Wade.
But Rehnquist would have none of this. He was clerking for Justice Robert H. Jackson in the legal run-up to the 1954 Brown v. Board of Education decision, the landmark school desegregation case. Rehnquist opposed it. He prepared a memorandum for Justice Jackson titled "A Random Thought on the Segregation Cases." Rehnquist wrote, "I realize that this is an unpopular and unhumanitarian position for which I have been excoriated by 'liberal' colleagues, but I think Plessy v. Ferguson was right and should be re-affirmed."
The previous year in Terry v. Adams, which challenged Texas's right to ban blacks from voting in pre-primary all-white nominating elections, he advised Jackson to support the status quo. He dismissively wrote, "It is about time the court faced the fact that the white people of the South do not like the colored people."
When practicing law in Arizona, Rehnquist was active in Republican politics. He counseled Barry Goldwater to vote against the Civil Rights Bill of 1964. Later that year he worked for Goldwater's presidential campaign, challenging and intimidating black and Hispanic American voters at Phoenix polling locations as part of the GOP's Operation Eagle Eye to suppress the minority vote.
When Richard Nixon was elected in 1968, Rehnquist moved to Washington working for the Department of Justice as the assistant attorney general of the Office of Legal Counsel under Attorney General John Mitchell. Rehnquist distinguished himself as a conservative intellectual and an enthusiastic defender of executive power in the face of widespread social unrest. In a 1969 Kiwanis Club speech, Rehnquist stressed that the country had to devote all its energies to countering "the danger posed by the new barbarians." In his vehement opposition to Vietnam War protesters, he supported mass arrest, "qualified martial law," and advocated for Army surveillance of ordinary U.S. citizens.
While on the court, Rehnquist was, as Nixon wanted, a straight-down-the-line pro-business, law and order conservative.
In 1986, Ronald Reagan elevated Rehnquist to chief justice. He was considered very amiable as chief justice focusing on collegial comity with the other justices. He received high marks from everyone from Justice Ruth Bader Ginsburg to the late John Scalia for how he ran the court. Still, that did not stop him from owning property in Vermont with a covenant barring Jews nor helping form the aggressively right-wing Federalist Society—and leading everyone in a rousing rendition of Dixie at one of their meetings in the 1980s.
Today Chief Justice Roberts along with the other conservatives on the court continues this tradition of kowtowing to power, particularly when it comes to the voting rights of minorities. In decision after decision, Chief Justice John Roberts has sided with GOP political interests in their efforts to disenfranchise African American and Hispanic voters in a rerun of Jim Crow voter suppression tactics.
He wrote the 2013 majority opinion for Shelby v. Holder that gutted the Voting Rights Act. Roberts argued that the racist environment that led to the act was no longer present, so their protections no longer needed. Almost immediately state after state in the South created new hurtles from voter IDs to reduced voter locations and hours to discourage minority voters. (The events in this week's Georgia primary with hourlong waits, malfunctioning voting machines, and lack of available ballots in minority majority counties are just the latest examples.)
Roberts also wrote the majority opinion in last year's Rucho v. Common Cause. He acknowledged that gerrymandering may be "incompatible with democratic principles" but argued federal courts—from the Supreme Court on down—were incapable of adjudicating the issue. He essentially bowed out of any judicial oversight of state-sanctioned voter suppression.
We also shouldn't forget that Roberts was a lawyer for the 2000 Bush campaign. He authored the unorthodox brief that gave the Rehnquist Court the ammunition it sought in stopping the recount of Florida votes and awarding the presidency to George Bush in the infamous Bush v. Gore legal showdown.
Will the call for "Black Lives Matter" receive a welcome hearing if it lands on the steps of the Roberts Court? We can hope, but history isn't reassuring.
Fred Silverman produced and directed Who Counts for PBS in 2002 which focused on the Florida recount of 2000. He and Bob Barnett are producing a film on the Supreme Court and its war on voting called Democracy on Trial.