Openly Racist Supreme Court Majority Does Historic Worst

black and gayThe first, second and third of July, 2013 are the 150th anniversary of the Battle of Gettysburg.  The Battle of Gettysburg is often referred to as the turning point in the Civil War.

On June 25, 2013, five white supremacist ‘justices’ on the U.S. Supreme Court, presented us with a new turning point in the struggle for civil rights for all citizens of the United States.  With remarkable candor, Chief ‘Justice’ John Roberts made clear that he wants to be the 21st Century’s Roger B. Taney, writing overt racism into U.S. jurisprudence.

When the Roberts’ majority held that states have a fundamental right to disenfranchise non-white voters, the southern state reaction was immediate.  The attorney general of Texas announced that the state would implement two statutes whose only purpose is to disenfranchise Latino voters.  Tennessee Senator and white supremacist Lamar Alexander announced in the U.S. Senate that he believed all minimum wage laws are evil, and that businesses should be allowed to revert to using unpaid labor.  And county commissioners in Shelby County, Alabama, the County that brought the suit to eviscerate the Voting Rights Act, set to work on crafting new laws and rules to make sure that non-white voters are kept away from the ballot box.

There are those who will argue that the decision on the Voting Rights Act is not racist, but merely a legal analysis that all states should be treated equally in legislative matters.  This claim mirrors the arguments by some that slavery was not the cause of the Civil War.  And it underscores a critical difference between Chief Justice Taney’s racist decision in the Dred Scott case and Chief ‘Justice’ Roberts’ racist decision in the Shelby County case.

As they moved to secede from the Union, the majority of southern states passed laws or legislative pronouncements proclaiming that the purpose of seceding was to preserve race-based slavery as the core southern business model.  These proclamations were made by men who owned slaves and understood their state economies and their reasons for declaring war on the Union.  But as the Civil Rights Movement grew and moved the nation forward, a century after the Civil War, a cottage industry of slavery denial grew up, with writers claiming that slavery was not the cause of the Civil War.

Initially, these writers denied that there were any pro-slavery legislative expressions before the war started.  But the development of the internet and easy access to public records showed these denials to be bald-face lies.  So the deniers evolved more sophisticated lies.  These arguments now find voice in the increasingly frequent statements by Tea Bag Republican Party politicians and “think tank” advocates that black people were better off as slaves than they are now as free people, and the reversionist claims that blacks and latinos are lazier, less capable of intellectual achievement, and of lower ‘moral’ character than whites.

These recent arguments are the model on which John Roberts builds his defense of voting rights discrimination.  Roberts says that the Voting Rights Act, passed in 1965, is outdated, because the nation has changed so much in the intervening years.  No doubt he is right that the world has changed since 1965.  In 1965, there were no minicomputers, no internet, and no ability for truth seekers to find facts, historical records and analytic statistics with a few minutes or hours of research.

Just as it is now possible to show that the slavery deniers misrepresented the causes of the Civil War, it is equally possible to show that John Roberts misrepresents the changes since 1965.  First and foremost, Roberts simply lied about the data.  Roberts claims that Congress has not acted to update the 1965 law.  But the internet, and the briefs filed with the Supreme Court, show that Congress held extensive hearings, as recently as 2006, more than 40 years after the initial Voting Rights Act, and laid out 15,000 pages of evidence proving that voting discrimination continues in southern states.  John Roberts knew of this data, he knew that Congress had acted, and he knew that his claim that Congress had taken no action was not true.

John Roberts also knew that the state of Texas had two bills, passed and waiting for enforcement, whose only purpose was to disenfranchise Latino voters.  He knew that politicians of his party were loudly proclaiming that slavery had been a positive good for black Americans.  And in the face of this knowledge, he led four other ‘justices’ in ruling that the Federal government must not interfere with southern states’ efforts to take the vote away from non-white voters.

Some observers have opined that Roberts has an understanding of history, and wants to be “on the right side” of history.  Such observers questioned whether Roberts would put himself in the position of Chief Justice Taney, whose Dred Scott decision has, for more than 160 years, been the nadir of racist jurisprudence in the U.S.  But there is a key distinction between Roberts and Taney’s decisions, and between the two Chief Justices.

Roger B. Taney was a slave owner in a society that mostly believed that black people were biologically different from, and inherently inferior to, white people.  He believed that black people were simply less human, and were incapable of having the same human rights that white people had.  John Roberts has no such illusions.  Roberts grew up in a world that knows that there are really no “black” or “white” people – that our biology allows for variations in skin pigmentation, eye color, hair kinkiness, eyelid shape, etc., but that our fundamental make up is so blended that attempts to classify “races” is not scientific but political, social, and most of all, economic.

Roberts’ decision that states should be allowed to discriminate against voters on the basis of racial classifications decided by politicians cannot be defended as a good faith effort to express his understanding, as Taney’s decision was.  Roberts knew, as he wrote his opinion, that he was approving actions by states, like Texas, to attack the rights of ‘non-whites’ solely on the basis of social bigotries and economic interests.  Unlike Taney’s racism, Roberts’ racism has no faux science to justify it.

On June 26, 2013, the Roberts Court issued two gay rights decisions that reflected patterns of the ‘60s and ‘70s.  In the late ‘60s, the Civil Rights Movement was shoved out of the public spotlight by the growing movement against the Vietnam War.  While waves of white high school and college students shifted their attention from Freedom Rides to anti-war demonstrations, the draft pulled increasing percentages of poor black and latino men to the drug infused swamp of Southeast Asia.  In the ‘70s, a blossoming awareness that women should have rights equal to men again stole attention from the efforts of those who sought to continue the advance of non-white civil rights.

On June 26, 2013, one day after its openly racist decision to encourage Texas and other states to move forward with racially discriminatory voting laws, the Supreme Court again acted to distract public attention from race based bigotry.  In two decisions, the Court found that gay Americans have freedoms that are more worthy of protection than voting rights for non-whites.  Anthony Kennedy, writing for the Court, said about the Defense of Marriage Act, “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

Again, an issue of importance to the general population was thrust into the spotlight, diverting headline attention from the earlier decision that non-white voting rights do not have any right to protection.

The hypocrisy of Anthony Kennedy’s majority opinion cannot be overstated.  In his entire career on the Court, Kennedy has voted against racial affirmative action on every single occasion that it has come before him.  He is a dedicated white supremacist.  But he has been a defender of gay rights – rights that cannot be racially classified are understandable and acceptable to him while rights for racial minorities are not.

After the DOMA case opinion, the Court ruled that the defenders of Proposition Hate, the anti-marriage equality amendment to the California Constitution, did not have “standing” to challenge Judge Walker’s decision that the legislation was unconstitutional.  Writing for the majority, John Roberts said:  “Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California Law, we have repeatedly held that such a generalized grievance, no matter how sincere, is insufficient to confer standing.”

This statement is one upholding traditional procedural law – in order to bring a case, a party must have “standing” to come to Court.  However, in keeping with Roberts’ racism, this decision is directly in conflict with his opinion issued on Monday in the Texas affirmative action case, Fisher v. University of Texas.  In Fisher, all the parties agreed that the plaintiff had no particularized claim to give her standing.  But in that case, the five ‘justice’ majority ignored the lack of standing in order to reach the merits and strike down affirmative action.  In fact, the opinion of the 5th Circuit Court of Appeals, one of the most conservative U.S. Appeals Courts, specifically noted that the appellant lacked ‘standing’ to pursue the case.

Tom HallBut the five white supremacist ‘justices’ of the Roberts Court ignored this legal rule, in order to get to the merits, and to attack non-white admissions to the University of Texas.  As the quote, above from John Roberts clearly shows, that majority was aware of the rule, as it was aware of the Appellate Court’s determination.  The issue distinguishing the Fisher and Proposition Hate cases is that in the Fisher case, the rights of non-white Americans were being taken away, while in the Proposition Hate case, there was no pro-white interest at issue.

As we head into what may be a long hot summer, we can no longer ignore the reality that the United States Supreme Court is now dominated by an openly racist majority of Tea Bag Republican Party ‘justices’.  As the Battle of Gettysburg marked a reversal of the fortunes of the confederate army, the 2013 Roberts’ Court marks a reversal of decades of progress toward racial equality.

Tom Hall

Thursday, 27 June 2013

Published by the LA Progressive on June 28, 2013
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About Tom Hall

Tom Hall is a family lawyer in West Los Angeles. He is from Boston, and was raised in Friends Meeting at Cambridge (Quakers) to think that religion was a progressive force. During the Vietnam War, he organized draft counseling centers and worked with groups training people in techniques for disciplined nonviolent demonstrating. After the war, he became just another yuppie working to make a comfortable life. The Bush administration shocked him back into social concerns. Now he’s working to see that the Obama administration lives up to its progressive promises. Tom can be reached at ProgBlog@aol.com