Monday, October 08, 2018

The Supreme Court Is Headed Back to the 19th Century

If one wonders where America is likely headed with a Supreme Court firmly controlled by a reactionary majority, a very lengthy piece in The Atlantic suggests that we are headed back to Court decisions like those in the 19th Century which protected the powerful, especially corporations, and set the frame work for the Jim Crow laws.  Racial minorities and the LGBT community in particular should be very fearful if the lessons of history show us anything.  Through it all, a pretense of a support for "freedom" will be maintained even as discrimination is maintained.  The Christofascists and white supremacists of Trump and the GOP's base will be thrilled since they will be allowed to victimize and discriminate against others. The rest of the GOP supporters will be complicit in the wrongs done and will need to be held accountable when the day of reckoning does finally come after incalculable harm has been done.  Here are article excerpts (take the time to read the entire article):

When the Louisiana State Militia finally arrived at the Colfax courthouse on April 15, 1873, all it could do was bury the bodies. Two days earlier, a large force of white supremacists had taken control of the courthouse from the mostly black faction protecting it. J. R. Beckwith, the U.S. attorney for New Orleans, told Congress that in the aftermath the ground was “strewn with dead negroes,” their bodies plundered by whites who had come to watch the bloodshed. The dead remained “unburied and mutilated,” Beckwith said, until federal troops arrived days later to shovel them into a mass grave.
“Not a single negro had been killed until all of them had surrendered to the whites who were fighting with them,” The New York Times reported at the time, “when over 100 of the unfortunate negroes were shot down in cold blood.”
President Ulysses S. Grant called the Colfax massacre a “butchery” that “in bloodthirstiness and barbarity is hardly surpassed by any acts of savage warfare.” . . . Many white Southerners saw it differently. Robert Hunter, the editor of The Caucasian, a Louisiana newspaper, told Congress in 1875 that some of his own staffers had participated in the massacre. “I approved it, as most of our people did,” Hunter testified. “Had not the Colfax affair ended as it did, not less than a thousand niggers would have been killed later.”
Seventy-two men were ultimately indicted for their role in the Colfax massacre, charged under the Enforcement Acts of 1870, which were passed to help the federal government suppress the Ku Klux Klan. But their convictions were overturned by the U.S. Supreme Court, which concluded that the federal government lacked the authority to charge the perpetrators. . . . And it wouldn’t have mattered if they had, argued the Grant-appointed Chief Justice Morrison R. Waite, because the Fourteenth Amendment’s powers did not cover discrimination by individuals, only by the state. “The only obligation resting upon the United States is to see that the States do not deny the right,” Waite wrote.
This decision, in United States v. Cruikshank, the legal historian Lawrence Goldstone argues, provided a guide for the campaign of racist terrorism that would suppress the black vote and enshrine a white man’s government for generations.
Grant was enraged that “insuperable obstructions were thrown in the way of punishing these murderers … and the so-called conservative papers of the State not only justified the massacre, but denounced as federal tyranny and despotism the attempt of the United States officers to bring them to justice.” . . . By the end, racial segregation would be the law of the land, black Americans would be almost entirely disenfranchised, and black workers would be relegated to a twisted simulacrum of the slave system that existed before the Civil War.
The justices . . . carefully framed their arguments in terms of limited government and individual liberty, writing opinion after opinion that allowed the white South to create an oppressive society in which black Americans had almost no rights at all. Their commitment to freedom in the abstract, and only in the abstract, allowed a brutal despotism to take root in Southern soil.
The Conservative majority on the Supreme Court today is similarly blinded by a commitment to liberty in theory that ignores the reality of how Americans’ lives are actually lived. Like the Supreme Court of that era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice.
Chief Justice John Roberts’s June 2018 ruling to uphold President Donald Trump’s travel ban targeting a list of majority-Muslim countries, despite the voluminous evidence that it had been conceived in animus, showed that the muddled doctrines of the post-Reconstruction period retain a stubborn appeal.
In doing so, he [Roberts] embraced the logic of decades of jurisprudence from his predecessors on the high court, whose rulings ensured that the Constitution would not interfere with the emergence of Jim Crow in the American South. The nation’s founding document is no match for a dedicated majority of justices committed to circumventing its guarantees.
Not since the end of Reconstruction has the U.S. government been so firmly committed to a single, coherent program uniting a politics of ethnonationalism with unfettered corporate power. As with Redemption, as the end of Reconstruction is known, the consequences could last for generations.
The lesson of the post-Reconstruction Supreme Court is that a determined Court majority can prove stubbornly resistant to short-term swings of political fortune. Even if Democrats win the next election cycle, and the one after that, an enduring conservative majority on the Supreme Court will have the power to shatter any hard-won liberal legislative victory on the anvil of judicial review. It will be able to reverse decades-old precedents that secure fundamental rights. It will further entrench the rules of a society in which justice skews toward the wealthy, and the lives of those without means can be destroyed by a chance encounter with law enforcement. It will do all these things and more in the name of a purely theoretical freedom, which most Americans will never be able to afford to experience.
The Supreme Court’s moments of majesty, such as Brown v. Board of Education, which outlawed segregated schools; and Loving v. Virginia, which struck down anti-miscegenation laws; and even Obergefell v. Hodges, which legalized same-sex marriage, are few and far between. For most of its existence, the high court has been committed less to upholding the rule of law or the Constitution than to preserving its own legitimacy, unwilling to shield the powerless from the mob unless convinced that it has the political cover to do so. Like many things in America, the ideal rarely resembles the execution.
The Colfax massacre is most often remembered as the single worst act of violence during Reconstruction, but it also set a template for the high court’s approach to the bloody restoration of white rule in the South. The men who carried out the massacre had popular support among Southern whites—according to the historian Ted Tunnell, “nearly half the white males” in New Orleans alone belonged to terrorist groups such as the White League, which was willing to use violence to secure political gains or prevent black Americans from voting. With Cruikshank, the justices sent the message that if white Southerners wished to overthrow their state government at gunpoint, the Supreme Court would bar efforts to prosecute them.
The Supreme Court’s growing hostility to federal efforts to protect black rights would come to its logical conclusion in the 1896 case of Plessy v. Ferguson, which upheld segregation in public transportation. Justice Henry Billings Brown, a Rutherford B. Hayes appointee, wrote that “if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” Separate was not inherently unequal, he insisted. . . . As the historian Ibram X. Kendi has written, “Brown relied on racist ideas to support a policy that was clearly discriminatory in intent. It was his job to obscure those intentions.”
In 1898, in Williams v. Mississippi, the William McKinley–appointed Justice Joseph McKenna would write for a unanimous Court that literacy tests and grandfather clauses, two cornerstones of Jim Crow–era disenfranchisement, were constitutional because they also affected some whites. That the devices were consciously used to bar black voters from the polls was of no significance—the Court would avert its eyes and plug its ears.
“The Court increasingly used the due process clause of the Fourteenth Amendment to protect corporations from state regulation rather than the civil rights of persons.” In case after case, “the U.S. Supreme Court had come to embrace the logic of corporations,” Painter wrote in Standing at Armageddon, her history of the Gilded Age. “These decisions outlawed virtually any attempt by states to limit maximum hours of work, of unions to strike, and of the federal government to curb or regulate monopolies or to curb the accumulation of vast fortunes.” . . . The redistribution of civil rights from American citizens to American corporations helped create the greatest disparities in wealth in the nation’s history, until the present day.
“The Supreme Court contributed to the inequality of the Gilded Age by reinforcing and encouraging racial segregation. By refusing to read the Fourteenth Amendment broadly for minorities, they allowed a system of racial apartheid to go up in the South,” Winkler said. “On the other side, the corporate rulings enhanced inequality by entrenching the power of industrialists, financiers, and wealthy elites at the expense of immigrants and the working class."
Chief Justice Roberts upheld the [Trump muslim] ban, writing that it was “facially neutral” and that “the text says nothing about religion.” His decision echoed the logic of the Supreme Court’s rulings in Redemption-era cases such as Cruikshank and Williams: that as long as the legal language itself did not explicitly mention the group being discriminated against, intent and effect were irrelevant. The implications are larger than one religion: As with the Redemption Court, which gave the Redeemers a blueprint for creating a segregated society through laws that “do not on their face discriminate between the races,” Roberts and the conservative majority have indicated that Trump’s bigotries can be made policy as long as they appear “facially neutral.”
With Anthony Kennedy’s retirement, there is no discriminatory voting restriction the justices will be unable to sanction, no immigration law born in animus they will be unable to approve, no expansion of corporate power they will be unable to accept, no grant of presidential immunity they will be unable to uphold, no financial or environmental regulation they will be unable to strike down, no religious objection to an anti-discrimination law they will be unable to recognize, no worker protection they will be unable to repeal, no limitation on abortion they will be unable to allow, and no abuse of power by law enforcement they will feel compelled to restrict. 
There is hope for the Democratic Party in its base. The black and brown workers intimately acquainted with the two-faced nature of American liberty, the rebellious teachers whose surprise strikes brought red-state politicians to heel, the young leftists whose cold-eyed understanding of power mirrors that of their Republican opponents, and the feminists who flooded the streets after Trump’s inauguration forced the nation to reckon with the ascension of predatory men to the highest levels of culture, clergy, and state. But they will have to contend with a party establishment that is so divorced from the lives of those the Trump administration has put in peril that it cannot comprehend what will be required to defeat Trumpism. Democracy is a fight, and the Democratic Party’s leadership has yet to show that it can even wrap its hands.

Be very, very afraid.  America could be poised to revisit some of its ugliest history.

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