Archive for Supreme Court


Posted in 1968 Columbia Student Strike, Amy Barrett's Supreme Court Hearing with tags , , on October 16, 2020 by playthell

A Smiling Assassin?

Notes on A Dangerous, Duplicitous, Dame

Despite her innocent smile and pious religious posture, Judge Amy Coney Barrett demonstrated consummate skill employing legal jargon to avoid fundamental questions regarding constitutional restrictions on presidential power. Most shocking was her refusal to give a straight answer to the simple question: “Can the President unilaterally change the date of the presidential election”

Although it is clearly stated in the Constitution that Congress alone is empowered to set the date, and it has been clearly established on a specific date, every four years, Judge Barrett was unsure! She said she could not answer the question without having the case come before her and consulting with her clerks and colleagues. DUH? I can answer that question, or any literate person, by just reading the Constitution.

Yet this learned legal scholar and sitting Federal Judge must consult others in order to arrive at the conclusion that the President has no power to postpone an election. Interestingly, Bill Barr – that lying fat face fraud who has disgraced the Department of Justice doing Devious Donnie’s dirty deeds – was equally vague when questioned on this issue by a congressional committee.

Barr said he had never given the matter any thought and could not answer the question without studying the matter. The fact that Barr and Amy were also wishy washy on the question of the peaceful transfer of presidential following an election, a procedure that is also clearly spelled out in the Constitution is real cause for worry.

While we have been fairly inundated with evidence of Judge Barret’s accomplishment’s as a law professor at Notre Dame, the iconic Jesuit university where she was trained that is best known for its football team, and the fact that she has written 100 legal opinions during her tenure on the federal bench, she was MUM on her views on a variety of issues that are fundamental to the life chances of Americans, and the health of our constitutional democracy such as whether the President can pardon himself for past and future crimes. She was as secretive as a dope dealer!

Although Trump has stated on numerous occasions what he expects from the Judges he appoints, and it has been reported with bold headlines in newspapers and with much fanfare on television, Amy says she never heard any of it! Hence it is fair to say that is we take the Judge at her word, and she is under oath, she is a space cadet who is oblivious to current events. Otherwise, she has lied to the Senate under after swearing to tell the truth!  In which case she has committed a felony!

The history of the Supreme Court affords numerous examples of Justices who ruled against the positions of the Presidents who appointed them, but this woman was vetted by the Federalist Society. And Senator Whitehouse did a great job of exposing the hornet’s nest of invisible donors and far right organizations who investigate and select candidates to the Supreme Court with great certainty of where they stand on critical issues. Senator Whitehouse also showed that the Judges they select have an amazing record of voting the way they are expected to once installed on the High Court. He went on to show how Amy Coney Barrett is a product of this selection process.  And her explanation to Senator Cory Booker’s question as to  why she voted against an Afro-American plaintiff who claimed he was a victim of a “hostile work environment,” although his work supervisor called him “a nigger” was the essence of lawyerly double talk.

Hence, I don’t trust her. I think she is a witch with a winsome smile, a devil with an angel face.  She will be confirmed. The Republican leaders of the Senate such as majority leader Mad Mitch McConnell, and Judiciary Committee Chairman Lying Lindsay Graham has already declared victory. They are rushing her through the confirmation despite the pious palaver they spouted about not confirming Supreme Court Justices in an election year!

This is the reason these charlatans gave when they rejected outright President Obama’s Supreme Court nominee Judge Merritt Garland, and his black female appointee Mira Selby to the Federal bench; a seat now held by Amy Barrett, whom Trump later appointed! Amy is their girl and I have little doubt that she will do their bidding, for the next 30 years or more.

This is brazen Court packing, and the Democrats should expand the number of justices on the Supreme Court to nullify their treachery! That’s why all who oppose Dirty Donald and his far- right backers must turn out and vote to send these rascals home!


Playthell Benjamin
Harlem, New York
October 16, 2020

Witness Senator Booker Interrogate Judge Barrett

On Republican Hypocrisy

Posted in Amy Barrett's Supreme Court Hearing with tags , , , on October 15, 2020 by playthell

Devil or Angel?

 The Travesty of Amy Barrett’s Supreme Court Nomination

The confirmation hearings for Justice Amy Barrett is an act of treachery, conceived in malice and conducted with shameless duplicity. For the people now pushing this nomination are the very same people who blocked the nominee of President Barack Obama, Judge Merritt Garland, on the grounds that no nominee should be confirmed to the Supreme Court during an election year, although the nomination was made months before the election. They said that decision, who shall be elevated to the High Court, ought to be left up to the American people in the President they elect.

Now, these radical right-wing Republicans are frantically pushing Barrett’s confirmation after voting for the next president has actually begun. And when reminded of their pious pronouncements about the right of the people to decide this critical question regarding the composition of the Court, they play past the question and continue undaunted in their duplicitous actions.

Unable to present a credible defense of their transparent treachery, the Repubs inundated the public with silly sophistry that is an insult to any thinking American. Anyone who is not down with this dirty deal, or handicapped by the epidemic of ignorance sweeping the nation – a plague more dangerous than the Corona Virus – cannot fail to feel offended by these lying, amoral, shameless, charlatans that insists on pushing this nomination through.  For intelligent young people, from Jr. High-school on, the Republican duplicity provides ample reason to grow cynical about politics; to denounce it, as I have heard some young Americans do, as a hopelessly corrupt process that no self-respecting moral person should get involved in.

Senator Hirono Grills the Judge

Pressing Her Questions with Dogged Persistence

The Democrats in the Senate were magnificent in their unmasking of the Republican masquerade. They are speaking to the real issues that matter to the health and welfare of the American people. They have exposed the retrograde political objectives that Republicans have failed to achieve through politics, and now seek to achieve through a right-wing Supreme Court. And they make it clear that this is the true reason for this confirmation hearing.

Republicans on the judiciary Committee, and their colleagues throughout the Senate, are disgracing themselves and alienating the nation’s youth from their government. But they don’t give a shit, so long as their mission to pack the Federal Judiciary with right-wing judges who will not only arrest the progress women, non-white minorities, labor unions, gay people, et al – “the protected classes” – have made over the last half century. They brazenly select Judges they believe will overturn abortion rights, make it harder for poor and non-white people to vote, and take away health care from 20 million Americans!

WATCH THESE HEARINGS! If you can’t watch in real time watch it later on You Tube. Among other things, the Republican blather will vividly demonstrate what the Princeton philosopher Harry G. Franks so brilliantly described in his book: .”BULLSHIT!”  I will have A LOT more to say about what it will mean for the life chances of black folks, and the priorities of progressive forces in our country. I will offer my speculations on what it will mean for us if Judge Barrett becomes Justice Barrett.

I am unimpressed by all the hoopla about Amy’s academic performance. It is irrelevant when it comes to what she believes about the role and rule of law. Judge Barrett has said that the late Justice Antonin Scalia, a right-wing crank, was the greatest influence on her judicial philosophy. Alas, this fuzzy headed racist thought legal protections against racial discrimination in voting was a misguided “racial entitlement – a belief that is at the root of the massive efforts at suppression of the black vote in the coming election.  At first glance she strikes me as a pious, politically backward, religious fanatic with the instincts of a brood mare. Not someone who has the judicial perspectives that will incline them to vote in the affirmative on the issues progressives care about – this writer first among them.


Playthell G. Benjamin
Harlem, New York
October 15, 2020

Witness Senator Hirono in Action

The Struggle To Vote Continues!

Posted in Playthell on politics with tags , , , on March 1, 2013 by playthell

Martinand John March - Selma to Montgomery

On The Selma to Montgomery March for Voting Rights

 Afro-Americans, Racial Equality and Supreme Court

Watching Congressman John Lewis addressing the rally on voting rights in front of the US Supreme Court yesterday I got a feeling of de ja vu.  It was like America had turned back the clock to 1965, when John Lewis, then a leader of the Student Non-Violent Coordinating Committee, made a similar speech on the great March from Selma to Montgomery to gain the right to vote for black southerners.  The vicious attack on lawfully assembled marchers, who were mostly Afro-Americans, as the attempted to cross the Edmund Pettis Bridge leading to the former capital of the old Confederacy, shocked the world as it was broadcast around the globe on television.

It proved to be a sucker play on the part of the dumb desperate rednecks trying to preserve their “southern way of life,” the foundation of which was the severe oppression of black folks.  Instead they drove a stake through their own heart. The dim witted white officials who ordered the state police to arrest the advance of the demonstrators in a bloody melee of wanton police violence that was witnessed around the world didn’t understand that the world was changing, and what this implied for their racist apartheid system based on a Nazi like ideology of white supremacy.

The system of white world domination was rapidly crumbling due to the devastation Europeans wreaked on each other in the Second World War, and the rise of militant nationalism in Africa and Asia; the US was in a global struggle with the communist Soviet Bloc for the hearts and minds of the peoples in the newly independent nations.  However we now know, by virtue of studies on American diplomacy during this period such as Cold War Civil Rights: Race and the Image of American Democracy, by Mary L, Dudziak, that those tasked with conducting American foreign policy considered the racist policies of the southern states a major stumbling block in their efforts to sell the American way of life to the leaders of emergent Third world nations.

For instance seven years before the passage of the historic 1964 Omnibus Civil Rights Bill, an Alabama court sentenced a 28 year old man black man named Jimmy Wilson to death for stealing two dollars.   This verdict sparked such intense outrage against the US around the world that Secretary of State John Foster Dullies got the federal government to intervene and stop the execution.  Everywhere he went Dullies was put on the defensive, when confronted with questions about white American barbarism in their treatment of Afro-Americans.

This was 1958, three years after the Bandung Conference, held in Bandung Indonesia, where the emergent non-white nations of Africa and Asia gathered to discuss their future in a new world order.  The question that preoccupied the American government was which side would they choose to align with: The capitalist or communist bloc?  It was a concern that would intensify as the Civil Rights movement against the legal caste system, which was the foundation of racial apartheid and white supremacy in the US, grew more vocal.

Indeed, Dean Rusk, President Kennedy’s Secretary of State, would write memos to Attorney Robert Kennedy complaining about how the racist outrages in the US, which the Russians made sure were widely publicized, was complicating his attempts to counter-Russian overtures to leaders of the new nations and their millions of non-white citizens.  Hence, as Dr. Dudziak shows, addressing major Civil Rights issues like desegregation, became an imperative for victory in the Cold War and thus the political elite was willing address the problem with a new urgency.

The Bandung Conference
Bandung Conference 1955
Africans and Asians Contemplate a New World

This was the political atmosphere in which John Lewis spoke at the 1965 rally in Montgomery in an attempt to persuade the Congress to pass the Voting Rights Act which President Lyndon Johnson would sign into law,  with one of the most eloquent and impassioned speeches in presidential history on the equality of Afro-Americans before the law.

Now, almost a half century later, as a US Congressman, John Lewis is arguing in front of the Supreme Court in an effort to persuade them not to declare section five, the most important part of the Voting Rights Act, unconstitutional.

Once again the fate of Afro-Americans rest on a decision of the US Supreme Court, continuing a long established pattern in American race relations.  In the Dread-Scott Decision of 1857, three years before the outbreak of Civil War, the Supreme Court ruled in a decision written by Chief Justice Roger B. Taney that “Black Men have no rights that a white man is bound to respect.”  This left Afro-Americans in legal limbo, at the mercy of their racist white countrymen.  Among other things it meant that free blacks could not claim American citizenship and often had to travel abroad without benefit of a passport.

During the Reconstruction period following the Civil War, the Dread-Scott decision was reversed with the ratification of the Fourteenth Amendment on July 28, 1868.  This amendment conferred citizenship on Afro-Americans and mandated equal protection under the law.  In order to insure its ratification Congress made ratification a condition for the former confederate states to reenter the union. The Fifteenth Amendment, ratified in 1870,  gave Afro-Americans the right to vote in quite explicit language: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.’

The Radical Republicans, led by Congressman Thaddeus Stevens and Senator Charles Sumner, was determined that the northern defeat of the southern Confederacy would not be a pyrrhic victory.  So they passed a series of Civil Rights bills to buttress the new constitutional Amendments beginning in 1866, and culminating with the sweeping Civil Rights act of 1875.

This Act outlawed racial discrimination in all public accommodations: hotels, public conveyances and places of amusement open to the general public.  The original draft of the Act by Senator Sumner included a provision outlawing segregation in public schools, but was struck from the bill because the Republicans didn’t believe it could pass.

Thaddeus Stevens

Indefatigable Champion of Afro-American Freedom

Two years later the Compromise of 1877,  a backroom deal struck by the Democrats and Republicans to resolve the disputed presidential election between Samuel J. Tilden and Rutherford B. Hayes, effectively ended congressional Reconstruction and removed the protection of federal Troops from the south, leaving the ex-slaves to the mercy of their former masters.  A reign of terror was unleashed on Afro-Americans by armed white terrorists like the Ku Klux Klan all across the South.  One of its main objectives was to drive Afro-Americans away from the polls. This great terror continued into the twentieth century.

Despite  growing racist violence  aimed at  nullifying Afro-American gains during the period of Radical Reconstruction, four years later, in 1881, the Supreme Court declared the Civil Rights Bill of 1875 unconstitutional.  This was followed 15 years later by the Plessey vs. Ferguson Decision, popularly known as the “Separate but Equal Decision,” which made racial segregation legal.

Taking it to the Streets
Ku Klux Klan
The Klan struts its stuff in the Nation’s Capital
Doing their devlish work in the South

Lynching Bee

American Exceptionalism!

Hence by the turn of the 20th century Afro-Americans had been stripped of virtually all the rights they had gained during the Reconstruction.  The South accomplished its goal of removing black citizens from the voter’s roles through a combination of extra-legal white terror and enacting all sorts of bizarre restrictions on the right to vote, while the Congress and Supreme Court turned a blind eye.

Afro-Americans were fixed in a racial caste system segregated from their white fellow citizens in virtually all spheres of personal and civil life, interacting only as employer and employee, or domestic servants in white households.  Separate but Equal remained the law of the land until the Court ruled in the Brown v. The Board of Education case of 1954, and passage of the Omnibus Civil Rights Act  of 1964; which outlawed segregation in the public schools and public accommodations.  In 1965 Congress passed the Voting Rights Act.

Together this legislation dismantled legal segregation and transformed southern politics.  The heart and soul of the Voting Rights Act  is Section Five, which requires states with a history of racial exclusion to submit any proposed changes in voting laws to the Justice Department for approval.  We can see from all of the Republican chicanery in the last election – where there were numerous attempts to suppress the black and Hispanic vote – that we desperately need the powers of Section Five to be expanded and vigorously enforced.  Not remanded as the state of Alabama, one of the worse historical offenders, is presently asking the Supreme Court to do.

In view of this reality the recent comments on voting rights by Justice Scalia, who is touted as a great legal mind, are the blathering of a charlatan or a fool.  This pie faced, pumpkin headed, black robed, pootbutt burlesque on a great legal theorist, had the unmitigated gall to call the Voting Rights Act “a racial entitlement.”   There is no shame in Scalia’s racist game!

Antonin Scalia


A Racist Buffoon!

Earlier tonight Rev. Al Sharpton played a series of comments by leading right-wing radio bloviators like Rush Limbaugh and Sean Hannity, then juxtaposed them with Scalia mouthing the same putrid rhetoric…word for word.  The presence of foul hearted blaggards like Antonin Scalia on the Supreme Court is a result of appointments by Republican President’s….so much for the Morons who say it doesn’t matter whether there is a Democrat or Republican in the White House.  Alas, they must share the responsibility for our present crisis.


Playthell G. Benjamin

Harlem, New York

March 1, 2013

The Supreme Court and Racial Equality

Posted in Playthell on politics with tags , , , on November 2, 2012 by playthell
 Fisher outside the Supreme Court

 Fisher vs. U of Texas Could Turn Back the Clock

The case of Fisher V The University of Texas dramatizes the fact that rulings by the Supreme Court can determine the life’s chances of entire groups of American citizens, especially the poor, the powerless and minorities. The fate of Afro-Americans has been determined to an extraordinary degree by Supreme Court decisions.  Several times there have been dramatic swings in the in the opinion of the High Court on the same issue, and the life chances of Afro-Americans were shaped by those swings.

Now the Court is about to rule on a case that could radically decrease the chances for Afro-Americans, and other minorities, to succeed in this country.  If the court kills all Affirmative Action programs it will cement the advantages whites have obtained due to over three centuries of race based slavery and caste discrimination based on the principle of “white supremacy.” Without Affirmative Action guidelines the white majority will award the lion’s share of the benefits offered by American society to their kith and kin.

Hence jobs for which racial minorities and women are equally qualified – or even slightly better – will be denied them in favor of white males who may be less qualified.  This was the normal way of doing things before the advent of Affirmative Action programs.  Hence Affirmative Action requirements are dsigned to level the playing field, not give Afro-Americans and other minorities an unfair advantage.

It has proved an effective remedy for the practice systematic discrimination against the protected groups that restricted their chances of success in a highly competitive society in the past, and offers protection against institutional racism in American society today.  There is a supreme irony in the fact that the present case involves race and admissions policy at the University of Texas, because it’s the site of the landmark case Sweatt V. Painter.

In 1950 Herman Marion Sweatt, a Houston Texas mail carrier who aspired to become a lawyer, won a suit against the law school at the University of Texas, which had denied him admission because of his race.  The Supreme Court’s ruling found that the University’s policy violated Sweatt’s constitutional rights under the Equal Protection Clause of the 14th Amendment, which had been defined as “Separate but Equal” in the court’s ruling on  the Plessy v Ferguson case of 1896.

When Sweatt’s lawyers convinced the Court that a law school set up for black students was demonstrably inferior, the University of Texas law School was forced to admit him. Now Abigail Fischer, a white female who was refused admission to the University of Texas, has filed a case charging racial discrimination under the Equal Protection Clause, claiming she was not admitted to the University because of her race.

The basis for Ms. Fischer’s charge is that a Texas program which requires the University of Texas to admit the top 10% of all high school students, allows the university to admit non-white students who are less qualified than her.  However the Texas policy is following the guidelines handed down in the Grutter v Bollinger decision of 2003, which allowed universities to consider race as a factor in admissions…so long as it was not the deciding factor.

Never the less Ms. Fischer contends that she was denied admission to the university of Texas because of her race.  Hence this is the question that will be decided by the supreme court in this case.   When we look at the changes to the Court since Grutter v. Bollinger – with the Bush appointees John Roberts and Samuel Alito both passionate opponents of race based remedies, and Sandra Day O’Conner, who wrote the opinion in Grutter retired, and Elena Kagan recusing herself, we might well witness the death of Affirmative Action – a policy that quadrupled the black middle class and took white women through the glass ceiling.

Savvy court watchers who do it for a living have warned us not to predict what the Justices are likely to decide based upon the questions they ask during oral arguments.  Yet it is hard not to rush to judgment based on the persistent questions of Justice Roberts as to what the university considers a “critical mass” of black and Hispanic students, which would render race sensitive admissions policies obsolete.

The lawyers for the university must view this line of questioning as a trap, because all of the precedents in previous cases rule against racial quotas.  Hence if they cite a specific figure they could be accused of setting a quota by the other side and lose the case on this issue.  So the university’s lawyers are mum on the issue. But the legal precedents call for close scrutiny of any government program in which race is at issue.

This confusing state of American jurisprudence on racial matters prompted Chief Justice Roberts to ask Gregory G. Garre, lead counsel for the University, “How am supposed to do the job that our precedents say I should do?”   According to the New York Times’ reportage of 10/11/12 “The questioning on Wednesday from the Chief Justice and his colleagues was b turns caustic, exasperated and despairing.”

Retired Justice Sandra Day O’Conner, who departed the Court in 2006, was present to hear the arguments.  Some Court watchers speculated that she was there to see if the precedent set in the opinion she authored in Grutter Vs. Bollinger, which said race could be considered as a factor in a “holistic review” of a variety of admission criteria.

Alas, the fruits of many generations of struggle will be wiped away in  flash.  The High Court giveth…and the High Court taketh away.  Hence it has presented Black Americans with both triumph and tragedy. That’s why it really, really, matters who is appointing the Justices!


Playthell G. Benjamin

Harlem, New York

November 2, 2012

The Supreme Court Legalizes A Parliament Of Whores!

Posted in Playthell on politics with tags , , , on January 22, 2010 by playthell


 The Corporate shills who sold Our Democracy!

 The supreme Court’s 5-4 decision in Citizens United V. The Federal Election Commission, a campaign finance case, may prove to be as influential in shaping the character of American society as Dred Scott and Plessy V. Ferguson.   In the Dred Scott Decision the court declared that “black men had no rights that white men were bound to respect” when the Constitution was drafted. Although Chief Justice Roger B. Taney, a former slaveholder, was historically correct in his opinion, the question before the Court in this case was: Did America recognize black men as men?  If so, then the principles of the Declaration Of Independence which spelled out the fundamental values which the Constitution supposedly codified also applies to them.  The Dred Scott Decision sharpened  antagonistic forces to the point that the country exploded in civil war four years later. 

The present decision has opened the doors for big corporations to transform what is left of our participatory democracy into a plutocracy, the outright rule of the rich.  If this does not happen it will be due to the high public morality of corporations, who will hasten to elevate the public interests above their greed for personal profit – the very thought of which is heresy to most C.E.O’s.  Since the Supreme Court has scrapped a century of legal opinion on the use of corporate money in the political process, and empowered the corporations to directly finance advertisements for candidates of their choice, the voice of the people, those “polish factory workers” and their sons whose interest Justice Scalia has pledged himself to protect, will be drowned out by the clamor of corporate shills in the media.  And when you see a political Neanderthals and moral degenerates like Jim De mint and Newt Gingrich praising this as a victory for the people, we can see the horrors that lay ahead for those of us who really do care about preserving the power of the people.

We need not look far to see what this will mean for the political process.  The self-styled corporate funded “Tea Party “movement” that has been so influential in confusing and nearly derailing the President’s effort to bring much needed reform to the healthcare industry is exhibit A.  These reforms not only address the sickness of our minds and bodies, but also the survival of our economy. Every responsible economist who have studied this question – regardless of where they stand on the political spectrum – believes that the present healthcare system will eventually bankrupt the American economy.  Yet it will still fail to provide medical coverage for millions of citizens.  Hence the changes the President is proposing will literally rescue the economy and make us healthier as a nation.  What could be a more sensible, admirable and Christian goal?  But look at the way the corporate lobbyists confused this issue  – at an expenditure of a million dollars or more a day.   That is just an inkling of what politicians who seek to protect the public interests against the prerogatives of corporate interests will be facing.

 While one Republican big wig after another lined up to applaud the Supreme Court’s decision, Democrats see the matter differently.  In his dissenting opinion Justice Stevens noted sarcastically:“Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”  And Fred Wertheimer,  the founder and President of the advocacy group Democracy 21, which has a venerable record of fighting for campaign reform that would limit the role of private money in political campaigns, views the decision as an unmitigated disaster for the American people.

 “Well, I think I start off from the standpoint of citizens and the idea that this levels the playing field for citizens is dead wrong.”  Says Wertheimer. “What this decision means is major banks, major insurance companies, major drug companies, major energy companies can spend five or $10 million or more directly to elect or defeat a federal candidate. Now, what that means is a member of Congress or a candidate that is sitting there, knowing that if they vote against the interests of these major corporations, they will be blown out of the water by expensive campaigns the likes of which we have never seen.” 

 I think he’s right!  And the implications of this decision for President Obama’s agenda is dire, as members of Congress become frozen with fear in face of this new corporate power to sponsor candidates to run against them.  Decisions like these are the reason why it is so important who appoints justices to the High Court: liberal Democrats or conservative Republicans.  Every Right-wing kook knows this, but many on the left have yet to learn.  This is reflected in their simple minded insistence that there is no difference between the Democratic and Republican parties; crazy talk that helped elect George Bush and thus saddled us with eight years greed, incompetence, reckless foreign adventures, and the present reactionary Supreme Court who passed this horrendous radical right-wing decision. 

One response to this judicial disaster is for Congress to pass laws that require immediate disclosure of the source and amounts of all campaign  contributions, but a better solution is to keep President Obama in office for eight years – when Scalia will be Eighty – and hope he gets to replace one of the conservatives and change the 5-4 majority that rendered this decision. For there is no question where the President – a brilliant Constitutional law professor – stands on the Supreme Court’s decision to pave the way for corporations to turn the US Congress into what the humorists P.J. O’ Rourke calls “A parliament of whores!”





  Harlem, New York

January 21, 2010

The Supreme Court and The Law Of The Land

Posted in Playthell on politics with tags , , , , , , on October 8, 2009 by playthell

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