The Supreme Court and The Law Of The Land

Some Reflections on the Role of the High court In American Life

 Sotomayor and Barack

Two Pioneers: President Obama and Justice Sotomayor

 As the new session of the Supreme Court begins I find myself reflecting on its role in shaping our society. Any candid assessment of the supreme Court’s influence on American life must begin with the recognition that the law of the land means what ever the Supreme court says it means at the time.  And over the course of the nation’s history the Court has both distinguished and disgraced itself by its decisions.  Most recently the court disgraced itself in the coronation of George II, where the right-wingers on the Court substituted their views for the will of the electorate and voted a well connected simpleton into the Oval Office.  

This offense to reason and morality led to eight disastrous years in which the blood and treasure of the nation was squandered on a criminal war of choice, and they besmirched the honor of the United States by torturing prisoners of war in violation of the Geneva Convention. But we most clearly see the Court’s disgraceful vacillations historically in matters of race relations. A review of the Court’s major decisions regarding the rights of African Americans is perhaps the best evidence that what the language in the Constitution means is anything but clear. Yet we need only listen to the discussions of the Constitution on C-Span – that great electronic forum where citizens of all political persuasions express their views – in order to recognize how little many Americans really understand about constitutional law and the role of the High Court. 

 A recurring theme in their conversation is: “Since what the Constitution says is clear, why are the judges always disagreeing?”  This misguided belief that what the Constitution says is clear – and thus can be given a single interpretation for all times – is one of the major myths that fuel the self-righteousness of the so-called “Tea Party” demonstrators, who descended upon Washington with such fury and disrupted town hall meetings on health care reform across the nation last summer, passionately offering their interpretations of constitutional law.  Evidently unaware that, as my aunt Rosa used to say: “A little bit of knowledge is a dangerous thing,” we were subjected to the absurd spectacle of a semi-literate demonstrator lecturing Senator Arlen Specter – a man broadly learned in the law – on the intricacies of the Constitution.

 These people in the Christian Right/Republican base quote the US constitution like they quote the Bible, although they understand little of either document.  This is not surprising because the Bible is a collection of esoteric fables, parables, poetic metaphors, and fantastic allegories that require the suspension of reality as science reveals it to us, based on verifiable evidence, in favor of blind faith.  And the Constitution is so full of ambiguous language it is open to endless interpretation and manipulation by lawyers and legal scholars – not to mention the legions of preachers, talk show bloviators, pretentious pundits and assorted charlatans on the Christian right.  In spite of persistent claims that Supreme Court Justices arrive at decisions on constitutional issues through collegial debates prompted by a careful examination of the law and how previous courts have interpreted that law – which is to say original intent and judicial precedent – the Court has issued diametrically opposed opinions on the same legal questions.  


The Decisions in Dread Scott 1857, Plessey v Ferguson 1896, and Brown V Board Of Education 1954 demonstrate this.  Writing for the majority in Dread Scott, Justice Roger B. Taney argued that “Black men have no rights that white men are bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it.”   And it should be remembered by Americans today who proudly recite the passages from the Declaration Of Independence regarding “All men” having been “created equal,” that Chief Justice Taney observed in this decision: “the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration.”  Considering the fact that thousands of black men fought with the Continental Army in the American Revolution, and the War of 1812 too; this opinion could only have been written by a white pro-slavery charlatan.

After the country was torn apart in the Civil war that exploded three years later, a Fourteenth Amendment was added to the Constitution and contained an Equal Protection Clause extending the same Constitutional rights to black people that whites enjoyed. Yet as a wave of racism swept the country in the 1890’s, the Justices on the court found a way to reinterpret the Equal Protection clause in Plessy V Ferguson, so that they could employ it to justify racial apartheid in the “Separate but Equal” decision, which made racial exclusion and discrimination legal throughout the nation.

The case was brought by Homer Plessy of New Orleans against Judge Ferguson, seeking to set aside a ruling against him because he refused to obey an act of the Louisiana legislature establishing racially segregated railway cars.  His brief argued that the Louisiana law was unconstitutional because it violated the equal protection clause of the fourteen Amendment.  In rejecting Plessy’s petition for redress   Justice Henry Billings Brown argued for the majority:

“The object of the [Fourteenth] Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”  Justice Billings, already on very shaky moral and legal ground, lapses into complete fantasy when he goes on to argue “Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. . . .” 

My response to that decision is, of course, as one of the injured parties victimized by that decision.  My father and uncles were denied their proper place as native sons who bore arms in defense of their country based on something as trivial as skin color because of that decision!  And I spent my formative years growing up under that evil system, and willingly put my life on the line to change it.   The proof of the wrong headedness of the Plessy decision is dramatically expressed in the fact that it was repudiated by a unanimous decision of the Court in Brown v the Board of Ed.    But this decision was due as much to non-legal factors as the sound legal arguments of Thurgood Marshall and the NAACP lawyers, which were constructed on the firm legal foundation left by the brilliant legal scholar, teacher and litigator Charles Hamilton Houston, Dean of the Howard Law School , Senior Legal Counsel for the NAACP, and mentor to Thurgood Marshall. 


The Father Of Civil Rights

Charles houston

Attorney Charles Hamilton Houston


The Judges were also deeply moved by the psychological studies of black children conducted Drs. Kenneth and Mamie Clark, and the historical study written by the imminent Afro-American historian Dr. John Hope Franklin, which were appended to the legal brief.  And I cannot believe, human nature and patriotism being what it is, that the Justices were not persuaded by the fact that we were in the midst of the Cold War and the Russians were using America’s racial policies to discredit the US as a barbaric nation in the eyes of leaders of emerging nations in Africa and Asia.  Hence concerns about America’s stature in the eyes of the world, as well as the need to persuade millions of colored peoples around the world to ally themselves with the US, both played a critical role  when the Supreme Court reversed itself in the Brown Decision.  And there remains a danger that Roe V Wade my yet be reversed.  Hence the meaning of the opaque legalistic language of the Constitution is far from clear, and the Court’s decisions has often reflected the dominant political currents of the times as well as the personal judicial philosophy of the judges. 

Since personal philosophy is shaped by such factors as race, gender, class and education – in spite of the attempt to obscure this reality with spurious arguments that deny human nature – it is a critical decision who sits on the high court.   This explains the furor among white supremacists like Pat Buchanan – who nearly lost his mind – over Barack’s appointment of Justice Sotomayor to the bench, despite her sterling record of academic and professional achievements.   He was so crazed over the fact that a salsa dancing, baseball loving, Puerto Rican lady from J-Lo’s neighborhood is on the Supreme Court….he resorted to the worse sort of slander and character assassination, but what Buchanan failed to understand is that his behavior toward Justice Sotomayor convinces all the colored folks, and non-racist whites, that we must rely on the courts for justice.

Playthell Benjamin

Harlem New York

October 5, 2009

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