The reaction to the recent resignation of Supreme Court Justice Anthony Kennedy is being treated like a defining moment in American history. While I don’t think it rises to that level, I do think Vice President Joe Biden’s description of the signing of the Affordable Care Act would apply. That being said, we should not let this moment pass without taking note.
An informed reaction to the Kennedy retirement and the political consequences of a right wing Trump appointment must take into consideration two factors. First, what is the American judicial system designed to really do? And, what has been the historical record of the Supreme Court in particular over the last 100-plus years?
All systems are designed to get the results they seek to achieve. There are no regularly reoccurring, unintended consequences. Mass incarceration of black and brown men is not a breakdown in the justice system; it is the justice system working as intended.
The American judicial system’s primary goal is to provide a legal rationale and judicial support for an economic and political order that maintains the privileged status of rich white men. In fact, most appellate court decisions are about creating or protecting some special (that means private) interest.
There is an insidious mythology about America that keeps marginalized communities (and unless you are included among America’s white oligarchs, you are marginalized) on the economic and political precipice. That widely accepted myth is that the American judicial system is fair, and American courts, particularly the U.S. Supreme Court, administer justice impartially. Nothing, and I do mean nothing, could further from the truth. As Richard Pryor said, when you go to court, what you will find largely is not justice, but “just us.”
Before we become apoplectic about the Supreme Court losing its status as a paragon of judicial virtue, let us do a cursory examination the Court’s record.
If you were born after WWII, you think of the Supreme Court as Brown v. Board, Miranda v. Arizona, Roe v. Wade, Shelley v. Kramer, Loving v. Virginia or Obergefell v. Hodges. All these decisions brought some relief to communities of marginalized individuals. However, if you examine the historical record, these are just individual points of light illuminating an otherwise rather dark history.
Let us review some (but by no means all) of the darkest moments of this court’s history. Number one on every worse decision list is Dred Scott v. Sandford (1857); this ruling requires no further explanation. In no particular order, a few of the rest; Buck v. Bell (1927) ruled forced sterilization constitutional; Hammer v. Dagenhart (1918) ruled Congress could not ban child labor in interstate commerce; the Civil Rights Cases (1883) struck down the Civil Rights Act of 1875. Moreover, who can forget Plessy v. Ferguson (1896) and Korematsu v. US (1944), as America at its racist worst?
You could argue that the post WWII Warren and Burger Courts were historical exceptions and this, which is about to be Trump court, is really just a regression to the mean – that this might be the first time we will live with a reactionary, retrograde Supreme Court. However, the truth is that this is the kind of Supreme Court that has dominated much of America’s history.
If all of this is true, what explains some historical progress? In a word – politics.
Anything you do not control is a weapon to be used against you. Courts are a function of who controls government and, who controls government is a function of politics. A judge, any judge, is just a lawyer who knows a politician.
There is no inherent virtue in the American political system. Left to its own devices, it does not produce public policy that is moral or designed to enhance the common good. Like all systems, it responds to who is in control.
We are confronted with this situation because we became inattentive and lazy about political control. Trump Republicanism (and there is no other kind) will be an expensive and painful lesson, but unfortunately a necessary one.
The laws that govern the physical universe also govern the political universe. Newton’s third law of motion states for every action, there’s an equal and opposite reaction. Every act of oppression has always been met with resistance, and over time, the resistance can prevail.
Next week: What political resistance should look like in 2018.
Mike Jones is a former senior staffer in St. Louis city and county government and current member of the Missouri State Board of Education and The St. Louis American editorial board. In 2016, he was awarded Best Serious Columnist for all of the state’s large weeklies by the Missouri Press Association.