Injustices : the Supreme Court's history of comforting the comfortable and afflicting the afflicted

312 Pages·2016·2.2 MB·English

Copyright © 2015 by Ian Millhiser
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Designed by Trish Wilkinson
Set in 11.5-point Adobe Caslon Pro
Library of Congress Cataloging-in-Publication Data
Millhiser, Ian, author.
Injustices : the Supreme Court’s history of comforting the comfortable and afflicting the afflicted / Ian
Millhiser.
pages cm
Includes bibliographical references and index.
ISBN 978-1-56858-457-7 (e-book) 1. United States. Supreme Court—History. 2. Political questions
and judicial power—United States.—History. 3. Social justice—United States.—History. 4. Law—
Economic aspects—United States.—History. I. Title.
KF8748.M475 2015
347.73'2609—dc23
2014049653
10 9 8 7 6 5 4 3 2 1
For Earl, Thurgood, and Ruth, who proved that it does not have to be this way
Contents
Introduction
PART I
THE CONSTITUTION OF STEPHEN JOHNSON FIELD
CHAPTER 1: How the Civil War Was Undone
CHAPTER 2: The Baron Outside Chicago
CHAPTER 3: The Two Constitutions
CHAPTER 4: The Price of a Coke
CHAPTER 5: You Load Sixteen Tons and What Do You Get?
CHAPTER 6: Men Feared Witches and Burnt Women
PART II
GETTING OUT OF THE WAY
CHAPTER 7: The Bottom Falls Out
CHAPTER 8: The Biggest Damned-Fool Mistake I Ever Made
CHAPTER 9: Should We Double Our Wealth and Conquer the Stars
PART III
THE BRIEF RISE AND RAPID FALL OF CONSERVATIVE JUDICIAL
RESTRAINT
CHAPTER 10: The Truce
CHAPTER 11: Rigging the Game
CHAPTER 12: The Final Word
CHAPTER 13: The Constitution Has Always Been at War with Eurasia
EPILOGUE: The Gathering Storm
Acknowledgments
Notes
Index
Introduction
The generally accepted notion that the court can only hear roughly 150 cases each term gives
the same sense of reassurance as the adjournment of the court in July, when we know the
Constitution is safe for the summer.
—F C J J R , A 19, 1983
UTURE HIEF USTICE OHN OBERTS PRIL
O
N A PORCH in Colfax, Louisiana, eight wounded men lay shielded from the
rain. Close to a decade earlier they’d been enslaved, toiling far away from the
site where General Robert E. Lee would soon surrender his army. Five months
earlier they’d cast ballots in a rigged election, then watched an ex-Confederate
officer declare himself governor of their state. Two weeks back they’d been
triumphant, emboldened by a federal judge’s order to oust that false governor’s
loyalists and regain control of their local government from white supremacists.
By morning, they would be gunned down by a racist mob.1
Eight decades later, in the autumn of Jim Crow, this mob’s descendants would
erect a historical marker commemorating this massacre: “three white men and
150 negroes were slain” in what the marker deems the “Colfax Riot,” bringing
the “end of carpetbag misrule in the South.”2
The events this marker touts—the death of Reconstruction, the birth of
Southern apartheid, and the near century of white supremacy that followed—did
not simply emerge from a single day’s slaughter. They were shepherded into
being by one of the most powerful and most malign institutions in American
history: the Supreme Court of the United States. Though a federal prosecutor
achieved a nearly impossible task—he convinced a jury dominated by Southern
white men to convict three members of the Colfax mob of violating the civil
rights of African Americans—the Supreme Court tossed out these convictions in
United States v. Cruikshank (1876).3 Less than eleven years after Lee’s
surrender at Appomattox Courthouse, the justices gave their blessing to the
campaign of white-on-black terrorism that would define the South for
generations.
Cruikshank is hardly an anomaly in the Supreme Court’s history. Just a few
years before the Civil War, the justices delighted slaveholders and enraged
abolitionists with its decision in Dred Scott v. Sandford (1857). More than just a
proslavery decision, Dred Scott was rooted in the belief that men and women of
African descent are “beings of an inferior order, and altogether unfit to associate
with the white race.” The Court examined “the condition of this race” at the time
the Constitution was drafted, and determined that “it is impossible to believe
that” the rights enjoyed by white citizens “were intended to be extended” to
black people.4
A great deal had changed in the years between Dred Scott and Cruikshank,
however. At the height of the Civil War, President Abraham Lincoln proclaimed
that “all persons held as slaves” within the rebellious states “shall be then,
thenceforward, and forever free.”5 Less than three years later, his armies
vanquished the slaveholding Confederacy and accepted its surrender. By the
time of the Colfax Massacre, five members of the Supreme Court were Lincoln
appointees, and three were appointed by Lincoln’s greatest general, Ulysses S.
Grant. Although the Court did include Democrat Nathan Clifford, a “doughface”
Northerner supportive of the Southern cause and the Court’s lone holdover from
before Lincoln’s election, the doughface justice had only one of the Court’s nine
votes to offer the old Confederacy.
More importantly, the Constitution in 1873, the year of the Colfax Massacre,
was a very different document than it was the day Lee surrendered to Grant.
Since that day, the states had ratified three constitutional amendments. One of
them, the Thirteenth Amendment, provides that “neither slavery nor involuntary
servitude” shall exist in the United States, except as punishment for a crime.
Another, the Fifteenth Amendment, calls for African Americans to be welcomed
into the ranks of fully enfranchised citizens by forbidding states from denying
the right to vote “on account of race, color, or previous condition of servitude.”
The most sweeping of the three Reconstruction Amendments, however, was
the Fourteenth Amendment. On its face, this amendment did not simply extend
new rights to freedmen and their children, it transformed the very nature of
American government. Prior to the Civil War, most of the rights embraced by
the Bill of Rights were not “rights” in the way we understand that term today.
Instead, the Constitution mostly prevented the federal government from taking
certain actions against individuals. States, however, remained free to seize
people’s property without compensation, or to invade people’s homes, or to
establish an official state religion, just so long as the authorities did so in
compliance with their own state’s constitution.
The Fourteenth Amendment declared, for the first time in the nation’s history,
that Americans enjoy a broad array of rights simply because they are Americans,
and that they keep these rights even as they travel across state lines. In the
amendment’s words, “no State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States.”
To ensure that states did not deny these new citizenship rights to freedmen,
the Fourteenth Amendment also declared that all persons born in the United
States and subject to its laws “are citizens of the United States and of the State
wherein they reside,” regardless of the station of their parents. And it proclaimed
that there are some rights that citizens and foreigners both enjoy simply because
they are human. No state may “deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.”
So the Fourteenth Amendment transformed the Constitution from a document
that largely just assigned different roles to state and federal governments into
one that recognized that certain liberties cannot be abridged by any government.
Though modern-day scholars disagree about what, exactly, the “privileges or
immunities of citizens of the United States” are, the primary author of the
Fourteenth Amendment had a fairly clear idea. In the words of that author, Ohio
Republican Congressman John Bingham, “the privileges or immunities of
citizens of the United States, as contradistinguished from citizens of a State, are
chiefly defined in the first eight amendments to the Constitution of the United
States. . . . These eight articles I have shown never were limitations upon the
power of the States, until made so by the fourteenth amendment.”6 Thus,
Bingham believed that his amendment would, for the first time, forbid the states
from violating the Bill of Rights.
Yet Bingham’s amendment was also fundamentally flawed. Whatever the
Ohio lawmaker might have wished it to accomplish, the amendment’s naked text
offers no hint as to what the “privileges or immunities of citizens of the United
States” could be. Similarly, it speaks in broad, undefined terms like “liberty” and
“due process,” then leaves the reader to guess what exactly these words mean as
well.
By writing such open-ended language into the Constitution, Bingham and his
fellow lawmakers delegated sweeping authority to the Supreme Court of the
United States, as the power to interpret these and other ambiguous phrases
within the Constitution ultimately rests with the justices who sit on that Court.
The few men and even fewer women entrusted with this power have not often
wielded it wisely:
• The Court spent the first three decades after the Civil War paving the
way for Jim Crow, and it spent the next four decades shielding
employers from laws protecting their workers from exploitation.
• The justices held that Americans could be forced into concentration
camps based on nothing more than their race,7 and that women could
be sterilized at the state’s command.8
• They held that children could be made to work in a cotton mill for as
little as ten cents a day.9
• They relegated countless adults to dank sweatshops and deadly
factories, with neither a union nor a minimum wage to protect them.10
• They gave billionaires a far-reaching right to corrupt American
democracy,11 and neutered much of America’s most important voting
rights law.12
And, throughout all of this history, the justices frequently ignored rights that
are explicitly protected by the text of the Constitution. During World War I, for
example, Congress enacted a sweeping censorship law that banned many forms
of “disloyal” speech and even prohibited Americans from displaying the German
flag.13 Yet the Supreme Court showed little sympathy for the view that the First
Amendment’s “freedom of speech” protects individuals who speak out against
their government during wartime. “When a nation is at war,” the Court held in a
unanimous opinion, “many things that might be said in time of peace are such a
hindrance to its effort that their utterance will not be endured so long as men
fight, and that no Court could regard them as protected by any constitutional
right.”14
The justices, in other words, have routinely committed two complementary
sins against the Constitution. They’ve embraced extra-constitutional limits on
the government’s ability to protect the most vulnerable Americans, while
simultaneously refusing to enforce rights that are explicitly enshrined in the
Constitution’s text. And they paved a trail of misery as a result. Few institutions
have inflicted greater suffering on more Americans than the Supreme Court of
the United States.
Nor is the Supreme Court redeemed by the brief period in the mid-1950s
through the early 1970s, when the justices restored the Constitution’s promises
of equality, free speech, and fair justice for the accused. This anomalous phase in
the Court’s history was a historic accident. Indeed, if it weren’t for a series of