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The Dobbs Decision Punctures the Supreme Court's Sacred Mythology

In high school and college history classes we tend to teach what I now consider two myths about the United States Supreme Court: the myth of impartiality and a myth about the origin of judicial review in the 1803 Court majority decision in Marbury v. Madison.

In a November 2018 response to President Donald Trump, Chief Justice John Roberts asserted that the United States does not have “Obama judges or Trump judges, Bush judges or Clin­ton judges. What we have is an extraordin­ary group of dedic­ated judges doing their level best to do equal right to those appear­ing before them. The inde­pend­ent judi­ciary is some­thing we should all be thank­ful for.” Unfortunately, as Americans have witnessed in the 1930s FDR court-packing fight, in efforts by Presidents Nixon and Reagan to nominate unqualified or highly ideological candidates to the Supreme Court, and in the recent actions of Senate Republican leader Mitch McConnell to block an Obama nominee for the Supreme Court, push through a last minute Trump nominee, and fill the lower federal courts with rightwing judges, Trump was right and Roberts was wrong.

Politically conservative decisions by the Supreme Court have been the norm, with possibly the only exception being the Warren Court of the 1950s and 1960s. From 1840 until the Civil War the Supreme Court was a pro-slavery Court dominated by Southerners Roger Taney (Maryland), James Wayne (Georgia), John Catron (Tennessee), John McKinley (Alabama), Peter Daniel (Virginia), and John Campbell (Alabama). After the Civil War the Court dismantled civil rights protections for formally enslaved Africans and free Blacks with a series of decisions culminating in Plessy v. Ferguson (1896). Eric Foner argues in The Second Founding,” the post-Civil War 13, 14, and 15th Amendments “were nullified in the generation after Reconstruction, that, little by little, the rights - the right to equal protection of the law, the right to vote, things like that - were just taken away in the South with the acquiescence of the Supreme Court of the United States.” Post-Civil War Supreme Courts through the 1930s were also notoriously pro-capital and anti-labor, even declaring unconstitutional early New Deal legislation aimed at addressing conditions during the Great Depression.

The influence of the Warren Court, which officially lasted from 1953 to 1969 when Earl Warren was Chief Justice, continued at least until 1973 with the Roe v. Wade decision, signed by a 7-2 majority of the Justices. Earl Warren, the Republican Governor of California and the Republican candidate for vice president in 1948, was committed to broad consensus-building on the Court, the Brown v. Board of Education of Topeka decision outlawing de jure racial segregation, was decided by a unanimous vote. Under Warren, the Court returned to the original interpretation of the 14th Amendment, establishing federal protection for due process rights and equal protection of law. The idea that the Constitution had to be understood as a living document interpreted in the light of contemporary concerns was best articulated by Justice William Brennan. Both Warren and Brennan were appointed to the Court by Republican President Dwight Eisenhower.

The Majority opinion in Roe v. Wade was written by Justice Harry Blackmun and signed by Justices William Brennan, William Douglas, Thurgood Marshall, Lewis Powell, Potter Stewart, and Chief Justice Warren Burger. Blackmun, Powell, and Burger were nominated to the Court by Republican President Richard Nixon; Douglas by Democrat FDR; Brennan and Stewart by Republican Dwight Eisenhower, and Marshall by Democrat Lyndon Johnson. The two dissenting votes in Roe v. Wade were by William Rehnquist, a Richard Nixon appointee, and Byron White, appointed to the Court by John F. Kennedy. We will not see that type of “non-partisan” decision by the Supreme Court anytime in the near future.

Since 1982, the Federalist Society (Federalist Society for Law and Public Policy Studies) has led a rightwing effort to overturn the moderate, sensible, modern Constitutional interpretations of the Warren Court. It claims to be “committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”  In practice that means an end to federal protection of voting rights and diversity programs, limitations on environmental protection, opposition to same-sex marriage and gender equality, anti-union decisions, and opposition to abortion and reproductive freedom. Effectively the Federalist Society agenda would mean once again overturning the 14th Amendment requiring states respect the rights of citizens and persons living under the jurisdiction of the United States and 9th Amendment protections for personal unenumerated rights, including the right to privacy, a right cherished by Southern slaveholders who were forcing concubinage on enslaved African women. Of the current nine members of the Supreme Court of the United States, the rightwing six, Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, John Roberts, Samuel Alito, and Amy Coney Barrett are members of the Federalist Society.

The Federalist cabal on the Supreme Court is now set to overturn Roe v. Wade by imposing an antiquated and rejected interpretation of the 14th Amendment. The leaked draft “Opinion of the Court” in the case of Dobbs v. Jackson Women's Health Organization, written by Justice Alito, declares the majority decision in Roe v. Wade an “abuse of judicial authority” and “egregiously wrong from the start.” Alito wants to assign decisions on the right of a woman to have an abortion to state legislatures, although the 14th Amendment expressly states that no state can deny a person equal protection of the law. He also wants to eliminate 9th Amendment protections for unenumerated personal rights, including the right to privacy that protects the right to choose your sexual partner and the right to use birth control.

The power of the Supreme Court to dictate law and the principal of judicial review is rooted in America’s history of racism. Even decisions by the Warren Court to overturn racist law were made because elected officials were too often paralyzed by fear that enraged white voters would turn them out of office if they passed laws protecting the rights of African Americans.

Marbury v. Madison was a very relatively narrow Supreme Court decision that tried to balance claims made by competing factions—political parties unforeseen by the Framers—that were emerging in the country. The Court ruled that in the creation of Courts and judgeships Congress had not followed guidelines established in the Constitution. Chief Justice Marshall, for the Court majority, wrote “The authority given to the Supreme Court by the act establishing the judicial system of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution.” A writ of mandamus compels a lower court to act on a higher court’s decision. Marshall rhetorically concluded, “the Constitution is superior to any ordinary act of the legislature,” but he did not expound a theory of judicial review and the Supreme Court did not begin reviewing and throwing out other Congressional acts.

Court authority was extended in three additional early cases, but again these were relatively narrow. In McCulloch v. Maryland (1819), the Court blocked efforts by Maryland to tax a federally chartered bank; in Cohens v. Virginia (1821), the Court affirmed its right to review state court decisions addressing federal laws or the Constitution; and in Gibbons v. Odgen (1824) the Court cited the power of Congress to regulate interstate commerce to mediate a dispute between New York and New Jersey over Hudson river navigation

The Supreme Court really began to assert a broader right to judicial review of federal and state laws starting in the 1840s and 1850s in efforts to protect the slave system and institutionalize white racism, something not expressly stated in the Constitution but definitely implied by the three fifths (Art. 1, Sec. 2), return of fugitive slaves (Art. IV, Sec. 2), and regulation of the slave trade (Art. 1, Sec. 9) clauses.

In 1842, in Prigg v. Pennsylvania, the Supreme Court overturned the conviction in Pennsylvania of Edward Prigg, a slave catcher charged with kidnapping Margaret Morgan, an African American woman who had escaped to Pennsylvania from Maryland. In its decision, the Court declared unconstitutional Pennsylvania personal liberty laws that prohibited Blacks from being seized in Pennsylvania and enslaved in other states because they violated the 1793 federal Fugitive Slave law. The Supreme Court reaffirmed this decision in Ableman v. Booth (1859), upholding the conviction of a Wisconsin newspaper editor for violating the 1850 federal Fugitive Slave law by assisting a freedom seeker to avoid capture.

The most notorious and probably the most racist Supreme Court decision was Dred Scott v. Sandford (1857). Not only did the Court rule that Scott remained enslaved even though he had lived in territory where slavery was illegal, but in the 7-2 majority opinion of the Court, Chief Justice Taney claimed that the Court had the power to determine the original intent of the authors of the Constitution and that they did not intend for Blacks to be considered citizens and have the rights of citizens.

The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing. They both describe the political body who . . . form the sovereignty, and who hold the power and conduct the Government through their representatives . . . The question before us is, whether the class of persons described in the plea . . . [people of African ancestry] compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States . . . [T]herefore, it is the judgment of this court, that . . . the plaintiff . . .  is not a citizen of Missouri, in the sense in which that word is used in the Constitution; and that the Circuit Court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued, directing the suit to be dismissed for want of jurisdiction.

The Supreme Court continued to use its decisions to institutionalize racism and white supremacy as it stripped away 14th Amendment protections for African Americans after the Civil War in the Civil Rights Cases (1883) and Plessy v. Ferguson (1896). Section 1 of the 14th Amendment famously declares:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.

Section 5 of the amendment granted Congress “the power to enforce, by appropriate legislation, the provisions of this article.” Based on this provision, Congress passed the Civil Rights Act of 1875 outlawing racial discrimination in jury selection, public schools, transportation, and public accommodations like hotels and restaurants. But the law was declared unconstitutional in 1883 when the Supreme Court ruled that the Constitution did prevent racial discrimination by private businesses or individuals, establishing the legal basis for Jim Crow segregation in the United States for the next eight decades until the ruling was reversed by the Warren Court in 1968 in a housing discrimination case, Jones v. Alfred H. Mayer Co.

In the majority opinion in the Civil Rights cases, Justice Joseph Bradley wrote that the

abrogation and denial of rights for which the States alone were or could be responsible was the great seminal and fundamental wrong which was intended to be remedied.” However, “the wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force . . . we are of opinion that no countenance of authority for the passage of the law in question can be found in either the Thirteenth or Fourteenth Amendment of the Constitution, and no other ground of authority for its passage being suggested, it must necessarily be declared void.”

In his dissent to the Civil Rights Case majority decision, a position consistent with the intent and wording of the 14th Amendment, the interpretation reinstituted by the Warren Court, and a position now under attack by the rightwing majority of the Supreme Court, John Marshall Harlan argued:

The opinion in these cases proceeds, it seems to me, upon grounds entirely too narrow and artificial. I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism. ‘It is not the words of the law, but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul’ . . . If the constitutional amendments be enforced according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class with power in the latter to dole out to the former just such privileges as they may choose to grant.

Thirteen years later, Harlan was again the only dissenting opinion against a racist Court decision in Plessy v. Ferguson (1896) where the Supreme Court formally endorsed the segregationist “separate but equal” doctrine. Harlan wrote:

“I am of the opinion that the statute of Louisiana is inconsistent with the personal liberties of citizens, white and black, in that State, and hostile to both the spirit and the letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the blessings of freedom; to regulate civil rights common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the people of the United States, for whom and by whom, through representatives, our government is administrated.”

The insurrectionists who stormed the United States Capitol Building on January 6, 2021 in an attempt to overturn the 2020 Presidential election, did not realize that a political coup aimed at toppling democracy in the United States had already taken place twenty years earlier. In a 5-4 majority decision rightwing Republicans on the Supreme Court gave the Presidential election to George W. Bush securing their radical political agenda. Despite conservative claims that they support state prerogatives, the Court’s Bush v. Gore decision threw out a ruling by the Florida Supreme Court. The ruling prevented a vote recount in Florida that would most likely have elected Democrat Al Gore as President of the United States. The outcome of the 2000 election set the stage for conservative majorities on the Supreme Court to uphold racial and partisan gerrymandering, narrow free speech protection for public employees, limit the free speech rights of high school students, restrict affirmative action programs to promote diversity, make it more difficult for states to implement common sense gun regulations, block efforts to keep dark money from influencing elections, undermine labor unions, ignore monitor voting rights violations, interfere with environmental regulation in the midst of a climate crises, and  now to deny women reproductive freedom.

In an 1850 response to a new Fugitive Slave Law, the Reverend Jermain Loguen of Syracuse, New York, himself an escapee from slavery, declared “I don’t respect this law - I don’t fear it - I won’t obey it! It outlaws me, and I outlaw it, and the men who attempt to enforce it on me.” I think we are entering another era when the only moral decision is civil disobedience, a refusal to obey decisions by a partisan ideologically driven rightwing Supreme Court that is determined to eliminate fundamental democratic rights.