Racial Oppression and the Supreme Court Hearings

This article is reprinted from Workers Vanguard No. 864 (17 February).

The only things that any of the participants in the Senate Supreme Court confirmation hearings for John Roberts and Samuel J. Alito made a pretense of caring about were the questions of abortion and, secondarily, “executive power.” What the hearings dodged were the realities of race in this country, when in fact both of the new Supreme Court justices made their careers largely by pushing racist reaction.

An article in the New York Review of Books (“John Roberts: The Nominee,” 6 October 2005) points out: “The most intriguing question about John Roberts is what led him as a young person whose success in life was virtually assured by family wealth and academic achievement to enlist in a political campaign designed to deny opportunities for success to those who lacked his advantages.” As the article continues, Roberts became part of the Reagan administration, where “he joined in its efforts to dismantle the civil rights gains of the 1960s and 1970s.”

There was much discussion in the bourgeois press about Roberts’ and Alito’s judicial philosophy—“originalism,” formerly known as “strict construction”—and about the right-wing Federalist Society, which spawned Roberts, Alito and a good portion of the current federal judiciary. Theirs is not a mere “judicial philosophy” but the expression in the legal/judicial realm of the call that the “South will rise again.” Strict construction arose in opposition to Brown v. Board of Education (1954) and other court decisions acknowledging rights for black people. The doctrine also opposed those decisions growing out of the civil rights movement that put some teeth into the supposed protections of the Bill of Rights, such as the 1966 Miranda decision on the rights of criminal suspects.

The Federalist Society was formed in 1982 by law students whose primary motivation was overturning, limiting and obstructing enforcement of the Civil Rights and Voting Rights acts. Their mentors were former Chief Justice William Rehnquist, for whom Roberts clerked, Robert Bork, an outright racist whose nomination for the Supreme Court was rejected by the Senate in 1987, and Ed Meese, Ronald Reagan’s attorney general. In his early years as a clerk for Supreme Court Justice Robert Jackson, Rehnquist wrote a memo urging Jackson to vote against what became the Brown desegregation decision, declaring, “It is about time the Court faced the fact that white people in the South don’t like the colored people.”

Bork was the Federalist Society’s chief “theoretician.” He opposed the 1964 Civil Rights Act as “an unwanted intrusion on the right of individuals to choose with whom to associate.” (George W. Bush’s father campaigned against the Civil Rights Act in his unsuccessful run for U.S. Senate in 1964.) Meese’s view of the Bill of Rights was expressed in his statement, “If a person is innocent of a crime, then he is not a suspect.” Supreme Court Justice Antonin Scalia, who was an adviser of the Federalist Society at its inception, told an audience at Columbia University in 1997 that if presented with Brown v. Board of Education now, he would vote against the parents seeking to desegregate the schools.

The Federalist Society’s funding comes from a Who’s Who of right-wing foundations and think tanks. These include the Bradley Foundation, which helped fund Charles Murray, co-author of the racist The Bell Curve. One of the Federalist Society’s leading lights is Texas law professor Lino Graglia, whom Reagan considered appointing to the federal appeals court until Graglia publicly admitted that he regularly used racist epithets to describe black people. Graglia has opposed the Seventh Amendment, which permits jury trials in civil cases. Evoking the timeworn racist battle cry of “states’ rights,” he has also opposed the 17th Amendment, which called for the popular election of Senators instead of appointment by state legislatures, on the grounds that it weakened “state autonomy.”

What was striking about the recent Senate hearings was not that Bush’s nominees hold reactionary views, but that these views weren’t an issue. Senate Democrats barely alluded to the nominees’ views. Meanwhile, bourgeois liberal mouthpieces like the New York Times, which opposed the Supreme Court nominees, in fact served to cover up their sordid racist records by burying the Federalist Society’s role in pushing for the rollback of black rights in article after article on the group.

Alito’s record was even more vulnerable to attack than Roberts’, but the Democrats barely touched it. This only underscores how fundamental the oppression of black people is to U.S. capitalism. It also underlines that every real gain achieved by working people and the oppressed was, and will be, the result of hard class and social struggle, not appealing to bourgeois politicians or the courts.

During the Roberts hearings, there was some questioning of his views on affirmative action. This was a cynical joke; it was never meant to have anything to do with whether or not he was confirmed. Affirmative action in higher education has been dying since the racist 1978 Bakke decision against preferential minority student admissions quotas. Today many liberals cling to that decision under the rubric of advancing “diversity” in educational institutions. The idea that a court nominee, or any prospective government appointee, would be jeopardized by his opposition to affirmative action is laughable. In fact, it is those who have in some way supported affirmative action who have been denied confirmation. Democratic president Clinton abandoned his nomination of Lani Guinier as head of the Justice Department’s Civil Rights Division when her writings on affirmative action became an issue. The Senate refused as well to confirm Bill Lann Lee’s appointment by Clinton to the same post because he supported affirmative action.

While striking down the segregation laws, the Brown decisions of 1954 and ’55 called for desegregation with “all deliberate speed,” which meant at a snail’s pace. After 16 years of obstruction, the Court acknowledged calls for “affirmative action.” This measure would include busing to desegregate schools. But busing was defeated by a combination of racist mobs on the streets of Boston and other cities, liberals in Congress and the reformist left that tailed after them. In public schools today, especially in the Northeast, black children are more segregated now than at any time since 1968. The Democrats, who were instrumental in killing the only means of providing any, though inadequate, educational opportunities for black people, were certainly not going to challenge Alito and Roberts on the question of racial oppression. They are as committed to the maintenance of the capitalist system that is predicated on the exploitation of labor and the oppression of black people as the Republicans.

Many Democrats bemoan the right-wing predominance in the federal courts today. We would note that Democrats have for years joined in making an icon of Reagan. Now they have the federal judiciary that Reagan and Meese dreamed of.