[A-List] Don't Despair about the Supreme Court

[Bill Totten]

It's Not up to the Court

by Howard Zinn

The Progressive (November 2005)

John Roberts sailed through his confirmation hearings as the new Chief Justice
of the Supreme Court, with enthusiastic Republican support, and a few weak
mutterings of opposition by the Democrats. Then, after the far right deemed
Harriet Miers insufficiently doctrinaire, Bush nominated arch conservative
Samuel Alito to replace Sandra Day O'Connor. This has caused a certain
consternation among people we affectionately term "the left".

I can understand that sinking feeling. Even listening to pieces of Roberts's
confirmation hearings was enough to induce despair: the joking with the
candidate, the obvious signs that, whether Democrats or Republicans, these are
all members of the same exclusive club. Roberts's proper "credentials", his
"nice guy" demeanor, his insistence to the Judiciary Committee that he is not an
"ideologue" (can you imagine anyone, even Robert Bork or Dick Cheney, admitting
that he is an "ideologue"?) were clearly more important than his views on
equality, justice, the rights of defendants, the war powers of the President.

At one point in the hearings, The New York Times reported, Roberts "summed up
his philosophy". He had been asked, "Are you going to be on the side of the
little guy?" (Would any candidate admit that he was on the side of "the big guy"?
Presumably serious "hearings" bring out idiot questions.)

Roberts replied: "If the Constitution says that the little guy should win, 
the little guy's going to win in court before me. But if the Constitution says
that the big guy should win, well, then the big guy's going to win, because my
obligation is to the Constitution."

If the Constitution is the holy test, then a justice should abide by its
provision in Article VI that not only the Constitution itself but "all Treaties
made, or which shall be made, under the Authority of the United States, shall be
the Supreme Law of the Land". This includes the Geneva Convention of 1949, which
the United States signed, and which insists that prisoners of war must be
granted the rights of due process.

A district court judge in 2004 ruled that the detainees held in Guantanamo for
years without trial were protected by the Geneva Convention and deserved due
process. Roberts and two colleagues on the Court of Appeals overruled this.

There is enormous hypocrisy surrounding the pious veneration of the Constitution
and "the rule of law". The Constitution, like the Bible, is infinitely flexible
and is used to serve the political needs of the moment. When the country was in
economic crisis and turmoil in the Thirties and capitalism needed to be saved
from the anger of the poor and hungry and unemployed, the Supreme Court was
willing to stretch to infinity the constitutional right of Congress to regulate
interstate commerce. It decided that the national government, desperate to
regulate farm production, could tell a family farmer what to grow on his tiny
piece of land.

When the Constitution gets in the way of a war, it is ignored. When the 
Supreme Court was faced, during Vietnam, with a suit by soldiers refusing 
to go, claiming that there had been no declaration of war by Congress, as the
Constitution required, the soldiers could not get four Supreme Court justices 
to agree to even hear the case. When, during World War I, Congress ignored 
the First Amendment's right to free speech by passing legislation to prohibit
criticism of the war, the imprisonment of dissenters under this law was upheld
unanimously by the Supreme Court, which included two presumably liberal and
learned justices: Oliver Wendell Holmes and Louis Brandeis.

It would be naive to depend on the Supreme Court to defend the rights of poor
people, women, people of color, dissenters of all kinds. Those rights only come
alive when citizens organize, protest, demonstrate, strike, boycott, rebel, and
violate the law in order to uphold justice.

The distinction between law and justice is ignored by all those Senators -
Democrats and Republicans - who solemnly invoke as their highest concern 
"the rule of law". The law can be just; it can be unjust. It does not deserve 
to inherit the ultimate authority of the divine right of the king.

The Constitution gave no rights to working people: no right to work less 
than twelve hours a day, no right to a living wage, no right to safe working
conditions. Workers had to organize, go on strike, defy the law, the courts, 
the police, create a great movement which won the eight-hour day, and caused
such commotion that Congress was forced to pass a minimum wage law, and Social
Security, and unemployment insurance.

The Brown decision on school desegregation did not come from a sudden
realization of the Supreme Court that this is what the Fourteenth Amendment
called for. After all, it was the same Fourteenth Amendment that had been cited
in the Plessy case upholding racial segregation. It was the initiative of brave
families in the South - along with the fear by the government, obsessed with the
Cold War, that it was losing the hearts and minds of colored people all over the
world - that brought a sudden enlightenment to the Court.

The Supreme Court in 1883 had interpreted the Fourteenth Amendment so that
nongovernmental institutions - hotels, restaurants, et cetera - could bar black
people. But after the sit-ins and arrests of thousands of black people in the
South in the early Sixties, the right to public accommodations was quietly given
constitutional sanction in 1964 by the Court. It now interpreted the interstate
commerce clause, whose wording had not changed since 1787, to mean that places
of public accommodation could be regulated by Congressional action and be
prohibited from discriminating.

Soon this would include barbershops, and I suggest it takes an ingenious
interpretation to include barbershops in interstate commerce.

The right of a woman to an abortion did not depend on the Supreme Court 
decision in Roe vs Wade. It was won before that decision, all over the country,
by grassroots agitation that forced states to recognize the right. If the
American people, who by a great majority favor that right, insist on it, 
act on it, no Supreme Court decision can take it away.

The rights of working people, of women, of black people have not depended on
decisions of the courts. Like the other branches of the political system, the
courts have recognized these rights only after citizens have engaged in direct
action powerful enough to win these rights for themselves.

This is not to say that we should ignore the courts or the electoral campaigns.
It can be useful to get one person rather than another on the Supreme Court, 
or in the Presidency, or in Congress. The courts, win or lose, can be used to
dramatize issues.

On St Patrick's Day, 2003, on the eve of the invasion of Iraq, four anti-war
activists poured their own blood around the vestibule of a military recruiting
center near Ithaca, New York, and were arrested. Charged in state court with
criminal mischief and trespassing (charges well suited to the American invaders
of a certain Mideastern country), the St Patrick's Four spoke their hearts to
the jury. Peter DeMott, a Vietnam veteran, described the brutality of war. Danny
Burns explained why invading Iraq would violate the UN Charter, a treaty signed
by the United States. Clare Grady spoke of her moral obligations as a Christian.
Teresa Grady spoke to the jury as a mother, telling them that women and children
were the chief victims of war, and that she cared about the children of Iraq.
Nine of the twelve jurors voted to acquit them, and the judge declared a hung
jury. (When the federal government retried them on felony conspiracy charges, a
jury in September acquitted them of those and convicted them on lesser charges.)

Still, knowing the nature of the political and judicial system of this country,
its inherent bias against the poor, against people of color, against dissidents,
we cannot become dependent on the courts, or on our political leadership. 
Our culture - the media, the educational system - tries to crowd out of our
political consciousness everything except who will be elected President and who
will be on the Supreme Court, as if these are the most important decisions we
make. They are not. They deflect us from the most important job citizens have,
which is to bring democracy alive by organizing, protesting, engaging in acts 
of civil disobedience that shake up the system. That is why Cindy Sheehan's
dramatic stand in Crawford, Texas, leading to 1,600 anti-war vigils around the
country, involving 100,000 people, is more crucial to the future of American
democracy than the mock hearings on Justice Roberts or the ones to come on 
Judge Alito.

That is why the St Patrick's Four need to be supported and emulated. That is 
why the GIs refusing to return to Iraq, the families of soldiers calling for
withdrawal from the war, are so important.

That is why the huge peace march in Washington on September 24 bodes well.

Let us not be disconsolate over the increasing control of the court system 
by the right wing.

The courts have never been on the side of justice, only moving a few degrees 
one way or the other, unless pushed by the people. Those words engraved in the
marble of the Supreme Court, "Equal Justice Before the Law", have always been 
a sham.

No Supreme Court, liberal or conservative, will stop the war in Iraq, or
redistribute the wealth of this country, or establish free medical care for
every human being. Such fundamental change will depend, the experience of the
past suggests, on the actions of an aroused citizenry, demanding that the
promise of the Declaration of Independence - an equal right to life, liberty,
and the pursuit of happiness - be fulfilled.

http://progressive.org/mag_zinn1105


Bill Totten     http://billtotten.blogspot.com/