Supreme Court


Papers of Justice Tom C. Clark sections on desegregation, school prayer, voting rights, 4th amendment, 5th amendment, communism, and Mexican American Civil Rights


"The immediate outcome of the Supreme Court's 5-to-4 decision in Roper v. Simmons is reason enough to celebrate: With one stroke it set aside seventy-two death sentences imposed for crimes committed by teenagers and categorically banned capital punishment for offenders under 18. The Court's powerful majority opinion -- all the more notable because it was written by Reagan appointee Anthony Kennedy -- adds momentum to the narrowing of capital sentences and diminishing number of executions in the United States. Justice Kennedy's opinion explicitly acknowledges tteenagers' universal "vulnerability and comparative lack of control over their immediate surroundings," elaborated with a humane and scientific recognition of developmental psychology, too long absent from the death penalty debate... Justice Kennedy's unapologetic embrace of international human rights standards" ("Too Young to Die." The Nation, March 21, 2005: 3).


"...the Supreme Court recently banned execution of juvenile offenders. In Roper v. Simmons, Justice Kennedy, writing for a 5-to-4 majority, cited recent neurological and sociological studies establishing that the overwhelming majority of those under 18 are not developmentally mature enough to be swayed by the incentives of either retribution or deterrence, the two stated justifications for the death penalty...

"Scalia, who once stated that the death penalty is no big deal to practicing Christians who levieve in an afterlife, angrily denounced the majority...

"...the majoritarian consensus of the states and of the Supreme Court--oh, yes, and the rest of the planet--are tossed aside as "subjective"...

"The Court, Scalia goes on to say, "thus proclaims itself sole arbiter of our Nation's moral standards." By this gesture, Scalia seemingly denigrates the very function of the Court... in Scalia's construct, the Court is supposedly setting "moral standards" rather than deciding legal limits" (Patricia J. Williams. "Grim Fairy Tales." The Nation, March 28, 2005: 9).


"...the current Court is still capable of delivering powerful legal highs. The remarkable judicial odysseys of Kennedy and the late Harry Blackmun; Sandra Day O'Connor's stubbor search for a middle ground; John Paul Stevens's enduring wisdom and intellectual leadership; Ruth Bader Ginsburg's steely brilliance; the decent pragmatism of David Souter and Steven Breye; and the occasional overlap between Antonin Scalia's quirky literalism and intense constitutional protection...

"Over the past fifty years, progressives, in close partnership with the courts, have helped to reinvent this nation, moving from the deeply racist and homophobic 1950s characterized by widespread misogyny, frequent eruptions of police violence, ongoing acts of religious intolerance and recurring spasms of political repression to a contemporary America that, while far from perfect, is at least a place where toleration--racial, political, religious, gender, and sexual--has become a mainstream value" (Burt Neuborne. "Addicted to the Courts." The Nation, April 25, 2005: 23-24).


"...we've seen many progressives suckered into becoming defenders of the "independent judiciary," s if our courts are some model of fairness to the poor and oppressed.

"Just look at the record.

"Courts have put two million mostly poor, mostly non-white prople in prison. Who cares about Miranda rights or the ephemera of due process with a concrete result like that?

"Courts have struck down affirmative action laws across the country, gutted the Violence Against Women Act, undermined the rights of the disabled, overturned laws banning anti-gay discrimination by the Boy Scouts, and generally weakened the rights of public employees against discrimination.

"Courts have repeatedly weakened workers' rights to form unions.

"Courts have expanded property rights at the expense of democratic control of land use decisions and overturning laws to help mineworkers pay for their retirement and health care in the name of protecting the profits of mine owners...

"... the Reconstruction laws banning mob murder of blacks were de facto struck down. These words by the Supreme Court were probably the most important in American legal history, since they overturned the results of the American Civil War, handing victory for the next century to Confederate mobs in the South who would drive blacks from the voting booths under the threat of lynchings and murder and impose an American Apartheid...

"To repeat, it was the Supreme Court that instituted racist mob rule in the South for the next century and protected it under the color of the federal constitution. So don't talk to me about the importance of an "independent judiciary" given a century of blood and mass murder on the hands of the US Supreme Court" (Nathan Newman. "Why defend right-wing courts?" Progressive Populist, May 1, 2005: 14).


"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...

"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...

"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, etc.--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...

"The rights of working people, of women, of black people have not depended on decisions of the courts. Like 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...

"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" (Howard Zinn. "It's Not up to the Court." The Progressive, Nov. 2005: 14-16).


ACS

"Justices Roberts and Alito will take an already conservative court even further to the right, but the struggle for social justice will go on. And I am pleased to report that a new force--full of energy and optimism and new ideas--has entered the fray on the side of those who are committeed to our founding values of liberty, equality and justice. It is the American Constitution Society for Law and Policy (ACS), which employs many of the undeniably successful techniques perfected by the Federalist Society, but in pursuit of liberal ends.

"When I joined many others to help found ACS five years ago, I had high hopes for its potential, but even I have been astonished by its explosive growth and its increasing influence on the nation's legal scene. ACS rapidly made extensive progress in matching the Federalist Society's network of chapters, with thousands of members now organized in student chapters at 142 law schools and lawyer chapters in twenty-one major cities in both blue and red states nationwide" (Abner Mikva. "ACS v. Federalists." The Nation, April 17, 2006: 6-8).


Colby Glass, MLIS