An Anti-Democratic Court Is Nothing New

tags: legal history, Supreme Court, democracy

David A. Love is a faculty member in journalism and media studies at the Rutgers University School of Communication and Information, and a writer based in Philadelphia. He writes on race, politics and justice issues.

The U.S. Supreme Court heard oral arguments on a sweeping new abortion law in Texas on Monday. The law, which went into effect in September, bans abortions after six weeks and relies on private-citizens-turned-bounty-hunters to enforce the law at $10,000 a head. The court’s decision not to block enforcement of the law before it went into effect places the legitimacy of the high court in question.

Today’s Supreme Court may be the most conservative it has been since the 1930s, and its recent decisions only highlight that its right-wing supermajority is captive to anti-democratic forces and the result of the corruptive influence of dark money, which has supported the confirmation of extreme conservative justices. Despite claims to the contrary, conservative justices have left the unmistakable impression that they are political operatives. Justice Clarence Thomas recently appeared at a Heritage Foundation event featuring Senate Minority Leader Mitch McConnell (R-Ky.) singing the justice’s praise, for example.

However, this is not the first time, nor is it a rare moment when the judiciary stood against democracy and civil rights. For most of its existence, the court has not been a moderate, apolitical body, but rather has oppressed marginalized groups and protected White male landowners, the group long considered ideal political citizens, who wrote the Constitution, and for whom the Constitution was written.

“First, as a matter of historical practice, the court has wielded an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth and status,” Nikolas Bowie, an assistant professor of law at Harvard Law School, testified to the Presidential Commission on the Supreme Court of the United States that was formed last spring. “Second, as a matter of political theory, the court’s exercise of judicial review undermines the value that distinguishes democracy as an ideal form of government: its pursuit of political equality.”

Bowie noted that Alexis de Tocqueville identified jurists as the American aristocracy, a privileged class with lifetime tenure who, as “the priests of Egypt,” regarded themselves as “the sole interpreter of an occult science” of the Constitution. He also pointed out that the Supreme Court has consistently protected the wealthy, invalidated federal laws enacted to increase political equality and has shown deference to Congress when it passed laws that harmed “racial, religious or ideological minorities” such as Native Americans, Chinese immigrants, those who live in U.S. territories, Muslim refugees and others.

In the 1857 decision in Dred Scott v. Sandford, for example, the Supreme Court blocked citizenship for Black people and ruled that Congress had lacked the authority to pass the Missouri Compromise, which banned slavery in new territories. The court’s majority was composed of five justices from slavery states, including Chief Justice Roger B. Taney, a former enslaver who was ardently proslavery.



Read entire article at Made By History at the Washington Post

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