The Supreme Court Is the Klan With Better Robes

“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.”

Roger B. Taney, Chief Justice, Supreme Court, March 1857

The Supreme Court of the United States (SCOTUS) is the arbiter of what laws are Constitutional and therefore allowed to exist. Congress makes the laws, and the Supreme Court interprets them. They are supposed to be impartial in their reviews but never have been. SCOTUS has never been representative of the population. Instead, they protect the interests of rich, white men. If not for a modicum of concern for their image, they would never serve anyone but rich men and corporations.

The process by which they are selected ensures SCOTUS will always protect white interests. The confirmation process requires that a committee of primarily wealthy, white men sends a recommendation to the full Senate, comprised of predominantly rich, white men. A President, even a Black President when allowed, makes a nomination, but the Senate determines who is ultimately allowed to serve. Rich, white men, will consistently overrepresent the body. The pipeline from which the selections are made is primarily rich, white men and will be so for the foreseeable future. They are the Klan with nice robes and concern for their image.

The first Chief Justice in 1789 was John Jay. He enslaved people, but he was very progressive by the standards of the day. Jay helped eliminate enslavement in his home state of New York. He allowed his enslaved people to earn their freedom before they were too old to be productive. Unfortunately, Jay was one of six Justices, most of whom also enslaved people. While Jay was somewhat progressive, the others were not, and no action was ever taken by that group of Justices to resist enslavement.

You can’t judge the Supreme Court by a single case; you have to look at them over time. Because they are concerned about their image, they occasionally throw out a small bone in hopes of being considered fair or bipartisan. Partisan issues are subject to the court’s makeup that may change depending on whether the court is liberal or conservative. Abortion is one such issue; load up the court with enough conservatives and throw all the precedents out the window. That’s a meaningful discussion to have but not what I’m talking about today.

I’m talking about the race-related issues where you can ask yourself, WWKD, (What Would the Klan Do)? Gun control laws, voting rights, police powers, and affirmative action. Sure, they have given an inch here or there over the years, but sooner or later, they take a mile. Martin Luther King, Jr said, “The arc of the moral universe is long, but it bends towards justice.” In the case of the Supreme Court, their mandate is originalism, going back to the framers’ intent. The framers imbued their racism, misogyny, and favor for the elite into the Constitution. Initially, the only people that could vote were rich, white men. The Second Amendment was about ensuring states could maintain slave patrols. Article One of the Constitution set the stage for increasing the profitability of domestic bred enslaved people, encouraging forced breeding and rape of enslaved women. The Supreme Court was good with all of this; this is the originalism they continually pursue.

In 1923, Texas legislators passed a law including the provision, “in no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas.” The Supreme Court, to their credit, found unanimously it was an infringement of the Fourteenth Amendment. But, the legislature fought back, “every political party in this State through its State Executive Committee shall have the power to prescribe the qualifications of its own members and shall in its own way determine who shall be qualified to vote or otherwise participate in such political party.” The court struck down that law too. But the dissent made it clear that all Democrats, in this case, had to do was come up with the right words.

“The Texas law itself withholds nothing from any negro. Instead, it merely recognized the Democratic Party’s power to prescribe qualifications for membership. It was the Party, not the state, that denied voting rights to African Americans. And the Constitution has nothing to say about discrimination by a private organization such as a political party.”

Three weeks later, Democrats instituted a Party rule that “only white citizens” may vote in a Democratic primary. Again, the Supreme Court unanimously sided with the segregationists. SCOTUS didn’t care about racism or voter suppression. This rule was no less a violation of the Fourteenth Amendment. They simply found a way, unanimously, to support racism.

When Congress passed the Voting Rights Act of 1965, it was only a matter of time before the courts began whittling it down to be less effective. In 2013 with Shelby v Holder, the Supreme Court found the enforcement provision unenforceable and eliminated preclearance. Preclearance required states and certain municipalities with a history of discrimination to ask permission before enacting voting changes. The day after that decision, multiple states, including Texas, Alabama, and Florida, passed new laws they couldn’t have before the Supreme Court decision. Many of these new laws have been tested in court, but it often takes decades for a case to reach the Supreme Court, during which voter suppression is the law of the land.

SCOTUS just took another ax to the Voting Rights Act by refusing to address racial gerrymandering and redistricting, which were clear violations of the Fourteenth Amendment. The Supreme Court skirted the issue by saying it was “too close to an election” to make a change, despite the fact the case had been filed years earlier. WWKD?

Civil Rights has faced the same pattern from the Supreme Court. The last significant Civil Rights Act was in 1964, but there have been eight Civil Rights Acts passed by Congress, in 1866, 1871, 1875, 1957, 1960, 1964, 1968, and 1991. There has never been a Civil Rights or Voting Rights Act that the Supreme Court didn’t ultimately weaken or find unconstitutional. WWKD?

Affirmative action is another area where the court has strived to look fair while lessening the impact of rules and laws. Affirmative action never was the panacea it was imagined to be. Instead, I submit it served as a cap for minorities while preserving the most significant slice of the pie for white people. That won’t matter anymore, as the court has signaled it may do away with affirmative action entirely this term.

Before you point out that Thurgood Marshall once served on the court, we now have Clarence Thomas and Sonia Sotomayor on the court. There have never been enough minorities on the court to make a difference in any decision. They can only flail away and write scathing dissents. Despite recent reporting of the disharmony within the court, they continually present a united front in public. They put on a good front.

Even their highly regarded decisions have been tainted. Brown v Board of Education finally overturned Plessy v Ferguson (separate but equal). Unfortunately, they also included the provision “with all deliberate speed,” which left no timeline for the actual implementation. As a result, segregated schools continue in disparate locales such as Mississippi and New York. The justice department has forced many major school boards to comply through consent decrees, but many school systems have slipped under the radar.

By 2045, white people will become a minority in the United States. Rest assured that the Supreme Court will continue to be dominated by white people. The system for nominating, vetting, and confirming a Justice will ensure whiteness for decades to come — that and originalism.

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This post was previously published on Black History Month 365.

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