Last week The Supreme Court of the U.S. effectively nullified the key provision of law which has made possible the full participation of minority group citizens in the democratic process. The nullification destroyed the effectiveness of the Voting Rights Act of 1965, the centerpiece accomplishment of the Civil Rights movement. This was done by a vote of only five members of the Court, all of them male members of the Republican Party, the major American party which last year lost the Presidential election by reason of the lopsided vote of those same minority groups for the other party’s candidate, a member of the African American minority. No Republican judge voted to allow Congress to continue to protect those voters, just as no member of the Democratic Party voted against protection. The five man rule of the Court’s decision nullified legislation for which hundreds, perhaps thousands, had given their lives. The same legislation had been adopted and extended by huge majorities of both parties in both houses of Congress, and supported by every American president for half a century. It nullified the protection which has fundamentally altered the United States from a fief of white men to something approaching a genuine democracy. Unfortunately this judicial nullification of civil rights law is not knew. The Supreme Court has crippled popular voting rights legislation before. Nearly one and a half centuries ago other men similarly abused the office of justice of the United States. A quick look back to that earlier struggle is needed now.
The Civil War of the 1860s ended with the defeat of the slave owners and their supporters. Three constitutional amendments were adopted with the purpose of creating a nation in which the former slaves would become full citizens and would protect their rights though the same voter foundation that gave protection to the rights of all other Americans. But there were many forces who bitterly opposed the elevation of former slaves and their descendants. While armed white racists constituted the most violent opposition, the Supreme Court was actually much more effective at undermining lawful attempts to empower Blacks with the tools of citizenship. Repeatedly the political branches of government proposed and adopted measures designed to enable Blacks to vote, seek office, obtain educational and occupational opportunity, and to overcome the terrible burdens imposed by centuries of systematic oppression. Just as repeatedly the Supreme Court destroyed those efforts with the same hubris we witnessed last week. In defiance of both the legislative authority of the Congress given by Article 1 and the explicit authority of the Fourteenth and Fifteenth Amendments Supreme Court justices abused their own high office to undermine the power of Congress to protect Black voters.
Fred Rodell in his 1955 book NINE MEN summarizes the role of the nineteenth century Court in leading the country to the Jim Crow variety of apartheid : “Then, through the 1870’s and 1880’s, the Court imperiously and impatiently swept aside almost all of these so-called Civil Rights Acts, either by flatly branding them unconstitutional—no matter that the Constitution had been amended precisely to achieve what these law were aimed to achieve—or by using legalistic chop-chop to ‘interpret’ them out of effective existence. A federal statute that made it a crime for any state official to stop citizens from voting was vetoed by the Court as too far-reaching, and hence a violation of states’ rights—since the Fifteenth Amendment only forbids the states to stop people from voting “on account of race, color, or previous condition of servitude.” In another case, the Court refused to let some Louisiana officials be punished under federal law for their violent treatment of Negro would-be voters—simply because of a tiny technical slip in the wording of the indictment. Said the Court, quite straight-faced: ‘We may suspect that race was the cause of the hostility, but it is not so averred.” Twice the Supreme Court struck down legislation intended to implement the Fifteenth Amendment’s guarantee that the American Civil War had not been fought in vain, but that Americans, including Black Americans, would never be deprived of the franchise by racial discrimination. Each time the Court did what the five man majority did last week; it pretended that the dignities of state and local governments, and even discriminating individuals, must take constitutional priority over the right to vote. Members of Congress who believed differently have been subsequently labelled by racist historians as ‘radicals’.
The actual language of the Fifteenth Amendment, adopted in 1870 just five years after Appomattox, shows the single minded determination to give Congress full power to protect Black folks in particular from any efforts to undercut their efforts to achieve full political citizenship: Section 1. The right of citizens of the United States to vote shall not be abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have the power to enforce this article by appropriate legislation.”
Each time members of the Court have struck down implementing legislation they have resorted to pretending that these two very straightforward sentences really mean something very much less than what they appear to mean. The context of the adoption of the amendment and its language make clear that Congress is fully empowered to use whatever means it deems appropriate to prevent any governmental actions which might damage or diminish the power of adult African Americans to participate fully in American democratic political life. You might suppose that the current effort to minimize the Fifteenth Amendment would lead the current majority to cite the Court’s previous cases that accomplished the same result. You would be wrong. Despite the fundamental rule that conservative decision making stems from following the precedents of the past, Chief Justice Roberts’ 24 page opinion never mentions the embarrassingly contorted opinions of his 19th Century predecessors. Neither does the concurring opinion of Justice Thomas, who seems to prefer to pretend that Congress can never supervise state and local governments in the voting process. The other four members of this week’s majority pretend to leave legislative power intact as long as that power is exercised in a way that meets their unexpressed views of current needs. The white four of the majority usually pretend to despise judicial activism because it is based on the notion that judges can substitute their wisdom for that of other political branches of government. And Justice Thomas has frequently informed dinner audiences that Judges simply do not have enough contact with current problems to second guess the Congress in making any political or social decisions! Yet here are the same five men substituting their judgment about the need for the preclearance that the Congress insists must precede changes in the voting arrangements of designated political subdivisions. The five men have decided this week that Congress must draw up a new map of the political subdivisions to be covered. Why?
These five men don’t think this map is up to date, although they certainly won’t tell a paralyzed Congress how to improve the map they claim is no good. What these five men are clear about is this: a constitutional amendment empowering Congress to protect the voting rights of people freed from slavery by another constitutional amendment is itself unconstitutional if its enforcement methods are not up to date according to the tastes of these five men. If you can find any logic in that, you are way ahead of me.
I aim to write another essay or so on this subject. Judicial legislating is too interesting to ignore, and too dangerous to leave to the experts. Today I simply wanted to remind you that the recent judicial attack on voting rights was rooted in precedents so ugly that even the Court’s dissenters were too polite to recall. One other thought needs expressing. There is a civilization to protect in these cases, not just a minority to befriend. The stability and humanity of American civilization depends upon our commitment to the ideal of liberty under law. The rule of law is the foundation of freedom from the tyranny of willful men. This Supreme Court decision appears to nullify our fundamental law—the expressed provision of our Constitution. Five to four. Republicans who don’t get many Black votes edging out Democrats who get a lot of Black votes. Against the unanimous vote of the Senate and the overwhelming vote of the House. Nullifying a law which all justices admit was responsible for enfranchising an entire people after a century of denial and persecution. Nullifying on the grounds that the times have changed, but without statutory or constitutional authority to nullify laws on such grounds. And the nullifiers were not Klansmen or military despots or even elected politicians. The nullifiers were judges whose highest and most holy obligation was to uphold the rule of law against the willfulness of men. Instead these five men demonstrated their own willfulness. As Yogi Berra once said “It was déjà vu all over again.