by Richard Foard
October 16, 2020
With the death of Supreme Court Justice Ruth Bader Ginsburg and the nomination by President Donald Trump of Amy Coney Barrett to immediately fill Ginsburg’s position on the Court, competing factions of the U.S. ruling class have geared up for a furious battle over Trump’s third appointment to that Court. The Democrats threaten to retaliate against Trump’s plan (if they win the 2020 presidential election and retake the U.S. Senate) by expanding the number of justices on the Court and then packing it with liberal justices. Liberal and conservative media pundits, law professors and political analysts have all staked out their positions.
They are all promoting the idea that Trump’s presumed success in jamming Barrett’s nomination through the U.S. Senate will fundamentally change the U.S. political and legal landscape.
But for whom? It is true that the U.S. Supreme Court is a political institution. The mythology spread among the population that the judicial system is able to deal out justice because they are above politics and the class struggle is slowly beginning to lose its grip. The political nature of the courts and the “injustice” system has become more apparent in the wake of countless murders of Black and Latino workers by racist cops who go unpunished. Nevertheless, many workers who justifiably hate the open racism and fascism of the Trump administration still believe that appointing liberal justices to the Supreme Court can significantly change our lives.
For the working class, this is a deadly illusion. First, how could the survival of any “democracy” hang on the appointment of one person to one branch of the government when real power in the society lies with a ruling class of bankers and billionaires? More importantly, regardless of liberal or conservative sentiments, party affiliation or loyalty to any particular president amongst the justices of the U.S. Supreme Court, the institution itself has constantly ratified and enforced a racist, anti-working class system of laws. The immediate targets of these racist attacks ranged from freed black slaves to laborers from Japan and China. But the divisive effect of these decisions has greatly aided the racist ruling class, while being a dagger through the heart of working class unity. Even Court decisions that have invalidated racial segregation or otherwise struck down discriminatory practices have frequently been undermined by a failure to enforce those decisions, or by later decisions which weakened their scope.
Let us begin with an 1823 decision, Johnson & Graham’s Lessee v. McIntosh, that established the principle that federal courts would not recognize the sale of lands by indigenous tribes of Native Americans. These sales were voided by the Court based on the “doctrine of discovery,”
that gave European conquerors and their descendants absolute title to all indigenous lands. This principle was relied upon by no less than the celebrated former Justice Ginsberg herself to help rationalize a 2005 decision denying the indigenous Oneida Nation sovereignty over lands they had been forced to sell during the federal government’s early murderous “resettlement” westward of New York and other tribes in the early 1800s.
The McIntosh case, authored by then Chief Justice John Marshall, used an explicitly racist and colonialist rationale for its holding. Marshall first reviewed the laws of all the major colonial powers (Great Britain, France, etc.), and found that each of them (miraculously) had invented the same legal principle: that whichever power had first “discovered” the lands in question had absolute authority over them vis a vis any other colonial power. Indigenous tribes had a right of “occupancy,” but this was always subject to ownership by the European power. According to Marshall, the U.S. inherited those rights from Great Britain when it successfully established itself as in independent country after the American Revolution.
Marshall was open about the ultimate basis for the “doctrine of discovery:” “The title by conquest is acquired and maintained by force. The conqueror prescribes its limits.” And what about the rights of the indigenous peoples, one might ask? They were “fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest.” The Europeans had to choose between “abandoning the country … or of enforcing [their] claims by the sword…” Marshall’s racist lies knew no bounds: that the indigenous people were “impossible to mix” with, ungovernable, and that the colonialists were at “perpetual hazard of being massacred.”
Marshall was succeeded by Chief Justice Roger Taney, appointed by President Andrew Jackson. Taney authored the infamous Dred Scott v. Sandford case. Since many people are no doubt familiar with that case, we will only briefly summarize it here. Dred Scott was born into slavery in Virginia in 1799. Later in life, he and his wife were taken by their masters to states where slavery was prohibited, including Missouri. Dred Scott sued for his freedom in federal court in Missouri. Scott’s case reached the U.S. Supreme Court, which issued a decision in 1857.
Taney’s vile majority opinion said that under the Declaration of Independence, African slaves were not recognized as “people.” Under the U.S. Constitution, he stated, they were not recognized as citizens, had “been regarded as being of an inferior race,” “had no rights which the white man was bound to respect,” and could be bought and sold “whenever a profit could be made by it.” Accordingly, Taney said, slavery was for the slave’s “benefit.” (For more on the historical background of the pro-slavery Declaration of Independence and U.S. Constitution, see Slave Nation, a book by Alfred and Ruth Blumrosen.) The decision also invalidated the Missouri Compromise, which had prohibited slavery in that state, and held that Scott was his master’s “property,” of which the master could not deprived without due process.
Taney’s legal atrocity outraged abolitionists and was a final straw for the growing political polarization that led to the U.S. Civil War. After the slaveocracy’s defeat by the rising Northern capitalists who supported the Lincoln Administration in the Civil War, the Thirteenth (abolishing slavery, except as punishment for a crime), Fourteenth (equal protection of the laws) and Fifteenth Amendments (voting rights) to the U.S. Constitution were ratified. Numerous civil rights laws designed to enforce these Amendments were enacted by the “Radical Republican” led Congress. One such law was the so-called Ku Klux Klan Act of 1870, which created criminal penalties for conspiracies to deprive formerly enslaved workers of their right to vote or to “injure oppress, threaten or intimidate any citizen with intent” to deprive that person of “any right or privilege … secured to him by the Constitution or laws …”
Reconstruction governments in the South were Radical Republican-led, with support from both formerly enslaved Black workers, white workers and farmers. However, ex-slaveholders and current plantation owners and their minions in the former Confederate Army began a campaign of unrelenting terror to drive out federal troops, “Yankee carpetbaggers” and black-led governments and recapture power in all states of the Confederacy. Part of that campaign was the formation of the Klan in 1866 by former Confederate officers. They also backed Democratic Party candidates in the post-Civil War elections These dastardly plans culminated in the Colfax Massacre of 1873, the worst instance of racist violence during Reconstruction. The Supreme Court decision that arose from that Massacre was arguably the most deadly decision for African-Americans besides Dred Scott.
The background for the Colfax Massacre was the contested Louisiana gubernatorial election of 1872. After a close vote, a pro-slavery Democrat was initially proclaimed the winner by the Election Commission, which had been appointed by the former Democratic governor. The Commission subsequently split, with each faction declaring its slate the winner. However, a federal judge ordered that the Republican-led legislature be seated. Both sides inaugurated their own governor. Inexplicably, federal troops were ordered not to interfere with the Democrats.
Preparing for an expected violent confrontation, Black-led militia in Grant Parish, a Republican stronghold, seized control of the Colfax Courthouse on behalf of the elected Republican county sheriff and judge. In response, ex-slaveholders/planters and Confederate officers mobilized racist forces from several other Louisiana Parishes. They attacked the Courthouse on April 13, 1873.
As the battle intensified, the racists were able to light the Courthouse on fire. As the building was engulfed in flames, several Black soldiers were burned to death. The vast majority of the remaining Black soldiers surrendered. Over the course of the rest of that day and the next one, the prisoners were executed by the racists, with only a few managing to escape despite being shot. This barbaric slaughter was later justified by one of the planter murderers as the necessary result of “a war of races.” (The Colfax Massacre, Leanna Keith)
Although 97 of the racists were indicted for these crimes, Federal prosecutors pursued charges against only nine, based on the preference of the Republican President Ulysses S. Grant administration for a “small, symbolic number of defendants.” Literally hundreds of witnesses testified at two trials, including family members who saw the executions with their own eyes. Probably as a result of rampant juror intimidation by the racists, only three of the executioners were convicted. At the request of defense attorneys, a U.S. Supreme Court Justice, Joseph P. Bradley, appointed by Grant, sat in on parts of the trial. He later presided in the U.S. Circuit Court, which heard the defendants’ appeals. (Keith)
Having attended the trial, Bradley no doubt heard the witnesses testify to horrendous details of the savagery inflicted upon the surrendering Black soldiers . Nevertheless, he authored the Circuit Court opinion, U.S. v. Cruikshank, which overturned all of the convictions. Bradley’s manufactured rationale was that some counts of the indictments did not explicitly say that racism was the motivating factor behind the executions; other counts were too vague and did not allege the specific rights and privileges that had been denied. But Bradley went further- he said that the 14th and 15th Amendments only prohibited “state action” that deprived African Americans of their rights, not the violent acts of individual or groups of racists. This meant only the individual state could prosecute murders, assaults, etc. According to Bradley, only the states, not the federal government, could protect federal constitutional rights, like freedom of assembly, or the right not to be deprived of life without due process.
Bradley’s decision immediately freed the three convicted murderers. Because Bradley’s Circuit Court opinion was opposed by another Circuit Judge, the case went to the U.S, Supreme Court. Despite his prior involvement in the case, an obvious judicial conflict, Bradley didn’t bother to recuse himself from the case. Although the opinion was written by Chief Justice Waite, the Court wholly adopted Bradley’s “legal reasoning” and result. Decided a year before the racist Hayes-Tilden Compromise of 1876 led to the withdrawal of federal troops and the abandonment by the Republican Party of Black-led Reconstruction governments in the South, Cruikshank completely cleared the way for the “Black Codes,” Jim Crow lynch law and the rampaging terrorism of the Klan used to enforce that hideous system of exploitation.
The final legal blow to federal protection of African-Americans was struck by the Supreme Court eight years later. The Civil Rights Act of 1875 prohibited discrimination based on “race and color” in inns and hotels, public transportation or “places of public amusement” (theaters, etc). This law provided criminal penalties, including significant fines or jail terms for each violation. They became the subject of a key U.S. Supreme Court decision, the Civil Rights Cases (1883).
These cases were brought by African-Americans who had suffered racist discrimination by being denied access to hotels, transportation or public amusement. The defendants were owners or operators of the establishments or companies that had discriminated against them.
The Supreme Court (this time, racist Bradley wrote the majority opinion) ruled that there was no constitutional basis for Congress to enact the 1875 Civil Rights Law. As in Cruikshank, The Court ruled that under the Fourteenth Amendment, Congress could only prohibit conduct or actions by state government and its institutions, not by private individuals. It further ruled that although the Thirteenth Amendment outlawed slavery (“involuntary servitude”), that the racist unequal denial of public accommodations to African-Americans was not a “badge or incident” of slavery; therefore the Thirteenth Amendment could also not be a constitutional basis for the Civil Rights Law. Only one Justice, John Harlan, dissented.
Decided thirteen years before Plessy v. Ferguson (which enshrined “separate but equal” into the law), the decision in the Civil Rights Cases destroyed the strongest legal protections against racist discriminatory treatment that had been gained by African-Americans after the Civil War. Together with Cruikshank, it put the imprimatur of the judicial system on the Jim Crow system and the resultant atrocities in the South, which the Justices of the Court must have been aware of. Thousands of African-Americans were lynched in the next 50 years, and millions were terrorized. The echoes of these two cases can still be heard today. Over and over, federal prosecutors all over the U.S. refuse to charge or indict racist killer cops on the grounds that civil rights laws don’t cover their murderous conduct.
Part 2 of this article will examine the Chinese exclusion cases, the case approving state sterilization laws, the Japanese internment cases and the recent Muslim travel ban case.
Richard Foard is a retired attorney, who worked in several legal services programs in New Jersey for a total of 36 years. He was also active in fighting poverty, gentrification, racism and sexism. He and his wife recently relocated to the Los Angeles area where he continues to be active in those struggles.