Oh, boo hoo! Boo hoo! Woe is us. The Supreme Court is lost for the next two, maybe three generations. So what? For most of this country's history the Supreme Court has stood against the Black Massive. The first Court Justices included slaveholders. Infamously, in the 1850s, Supreme Court Chief Justice Roger B Taney wrote the opinion that, since Afro-Americans were property, "no black man possessed any rights a white man was bound to respect." Where was the Supreme Court when the Republican Party adopted its first "Southern Strategy," which allowed for the election of Rutherford B. Hayes to the Presidency in return for the dissolution of Reconstruction? When the Grandfather Clauses and Black Codes were adopted throughout the Jim Crow South to disenfranchise black voters and the Yellow Codes were enacted to prevent Chinese families from immigrating to the US to join their husbands, sons and fathers whose labor was instrumental in the construction of the transcontinental railroad as well as the growth of the mining towns and west coast cities those railroads opened up, the silence of the Supreme Court in hearing briefs brought to protest the legailty of those laws was deafening. Who among us can forget Plessy v Ferguson, the decision that codified segregation into a law of the land for nearly sixty years?
The Supreme Courts of Chief Justices Melville Fuller, Edward White, William Howard Taft and Charles Evans Hughes consistently defended Big Business over the rights of workers protesting conditions in the workplace and abuses they suffered at the hands of their bosses throughout much of the first third of the twentieth century. When the former Governor of California, Earl Warren, was named by President Eisenhower to become Chief Justice of the Supreme Court in the mid 1950s, Ike and the Republicans assumed Warren would continue in the reliably conservative, laissez-faire traditions of the ruling classes. Warren's court instead defended civil rights, union rights and civil liberties. It allowed the law to become a champion of all Americans, and not just the wealthy and well-placed. For more than thirty years, from the 50s through the 80s, entire generations grew up believing that the Supreme Court was a bastion of protection for the little person, holding against onslaught after onslaught from those determined to undo Brown, undo protections for unions, undo protections for minorities, undo regulations to protect the environment and wildlife, undo Voting Rights, undo Affirmative Action, undo Roe v Wade.
Each victory in the Warren Court made it more and more possible to believe that the changes these laws brought would be permamnent and, if they were ever threatned, the Supreme Court would be there to save them. After all, isn't that the way it's always been? But, today, we are facing reality. Ruth Bader Ginsburg has died and the survivability of those laws hangs in the balance, along with the hopes and dreams of millions. We now know the Warren Court was an abberation, not the norm. Warren was Governor of California when the US infamously herded citizens of this country into concentration camps during World War II. The internees crime? They were of Japanese ancestry. Warren saw first hand the personal as well as material damage that was done. He never forgot it. How could the disgrace of those camps not have been on his mind when Brown vs. The Kansas City Board of Education came before the Court? Earl Warren surely brought his experiences and memories to bear when he was in discussion with his colleagues. Justice may be blind, but Justice does not exist in a vacuum. Not one of the Chief Justices who have followed Warren have exhibited a similar willingness to view the impact of their decisions beyond the confines of the Supreme Court building. Burger, Renquist and Roberts are white men of shared educational and social backgrounds for whom the realities and harshness of discrimination, unfairnness, intolerance and privilege have never been personal experiences. They have never had to live with the consequences of racial discrimination, police misconduct or violence, occupational safety hazards or unfair business or labor practices. They have never had to deal with the trauma of rape, of sexual harassment. Simply put, they are very much like all of the Supreme Court Chief Justices who preceded Warren. And now, Ruth Bader Ginsburg is dead and Mitch McConnell is poised to go back on his (never believed) word about not seating a new Court Justice in an election year, and oh woe is us. We're screwed. Bye, bye Voting Rights, bye bye Roe v Wade, bye bye Marriage Equality, bye bye Obamacare, bye bye Affirmative Action, bye bye Consumer Protection, bye bye Environmental Protection. Boo Hoo. Boo Hoo. Woe is us. This is the worst it's ever been.
Well, our great grandparents and our parents lived through worse, and they still stood strong enough for us to stand on their shoulders. Maybe these constant kicks in the teeth since the Obama election are what we've needed to wake us the frack up. How DID our forebears survive? What WERE the debates between Booker T. and W.E.B. ? What ARE the real lessons of Black Wall Street and Mound Bayou? What can we learn from Marcus Garvey? What did they know that we have forgotten? We have been content to let Dr. King and John Lewis and Ruth Bader Ginsburg and so many others do our fighting and struggling for us, and each time one is gone, we wring our hands and collapse by the roadside. Well, we have to stand back up. That's all there is to it. We have to wipe the tears and stand back up. Adam Clayton Powell once famoulsly asked, "What's in your hand?" Our first answer should come on Election Day. And the rest of our answer, every day after that until we tear down every wall that stands between us and full, first class citizenship. Otherwise, we will truly fail to do our part....and John Lewis and Ruth Bader Ginsburg are watching.