The Racist History of the U.S. Supreme Court – Part 2

by Richard Foard

November 7, 2020

Chinese Exclusion

The background for the Chinese exclusion cases starts with the immigration of tens of thousands of Chinese to the U.S during the late 1840s “Gold Rush.” These immigrants later made up the majority of the workforce that constructed the U.S. transcontinental railroad. When insufficient numbers of white workers applied to perform the arduous, dirty and dangerous labor that this project required, railroad bosses from the Central Pacific Railroad (including Leland Stanford, the founder of the University) began hiring immigrants from China. They were paid $26 per month, working 6 days per week, 30-50% less than white workers. “Hundreds [of these workers] died from explosions, landslides, accidents and disease.” (https://www.history.com/news/transcontinental-railroad-chinese-immigrants) After the completion of the railroad in 1869, these workers continued to toil for the big railroad bosses, who pocketed enormous amounts of money from their sweat and blood.

Although an 1868 treaty between the U.S. and China gave immigrants from each country “most-favored nation” status in the other country, the “welcome” for immigrants from China soon turned into its opposite. Beginning in 1880 with a newly negotiated restrictive treaty and continuing with at least four major “exclusion Acts” in the next 12 years, the U.S. Congress more and more tightened residency requirements for immigrants from China. The 1882 Act was the first in U.S. history that banned immigration for a particular nationality. These laws led to both mass deportations of those living in the U.S. and arrests upon return of immigrants who traveled to China to visit their families and then came back without residency certificates. This included those who left the U.S. before the passage of the most restrictive law in 1892 and were thus unaware of its requirements.

Workers from China challenged these requirements in federal court, and several of these cases reached the U.S. Supreme Court. The most comprehensive and damaging of the decisions in the  “Chinese Exclusion cases” was Fong Yue Ting v. United States, et. al. The 1892 Act required any “Chinese laborer within the limits of the United States” to apply for a certificate of residence within one year. Failure to do so subjected the laborer to arrest and an appearance before a federal judge. Once brought to the judge, the worker had to prove two things: 1) he was unable to procure a certificate due to “accident, sickness or other unavoidable cause;” and 2) he was a U.S. resident by the testimony of “at least one credible white witness.” Failure to do so resulted in a sentence of imprisonment and hard labor for up to one year, followed by deportation.

The Supreme Court opinion written by Justice Gray upheld the latter provision. Gray speculated that it “may have been the experience of Congress” that previous restrictive immigration laws were seen as too liberal because they allowed the “testimony of aliens,” which “was attended by great embarrassment, from the suspicious nature, in many instances, of the testimony offered to establish the residence of the parties, arising from the loose notions entertained by the witnesses of the obligation of the oath.”

Not content with sanctioning an openly racist legal requirement with a blanket condemnation of the credibility of workers from China, the Supreme Court also established the principle that the government kicking someone out of a place they had lived for most of their life did not constitute a “punishment” under criminal law. Since a deportation proceeding was therefore not a criminal trial, it was not governed by any constitutional provision applying to arrest, charging, prosecution or punishment. This included the rights to be free from unreasonable search and seizure, the right not to be deprived of liberty without due process, equal protection of the laws, the right to a trial by jury and the right to be free from cruel and unusual punishment.

It is also significant that Justice John Harlan, who wrote stinging dissents in both Cruikshank and the Civil Rights Cases, sharply challenging their sweeping eliminations of civil rights that had only recently been extended to formerly enslaved workers, strongly sided with the majorities in all the Chinese Exclusion cases. Harlan’s “liberalism” seemingly did not extend to immigrant workers whose sweat and toil built the railroads that gave the rising U.S. industrialist class the crucial infrastructure they needed to move their products across the continent.  

Fong Yue Ting confirmed how the government’s immigration policies served the needs of the capitalists: loosen up restrictions when immigrant labor is needed; throw immigrant workers out once the need dries up. The Chinese Exclusion Acts remained on the books until World War II, when China became a U.S. ally. But by then, the anti-Asian racism justifying their enactment and enforcement had already been transferred to a different group that had immigrated to the Western part of the U.S.- workers from Japan (see below).  

The Growth of Racist Laws

The 1920s saw the rebirth and rise of the Ku Klux Klan, the passage by Congress of the openly racist Immigration Restriction Act (hailed by Adolf Hitler in Mein Kampf), and the proliferation of state laws legalizing sterilization of “undesirables” and banning “miscegenation.” The pro-fascist U.S. eugenics movement promoted all of these laws as a way to eliminate the claimed financial and moral drain that the supposed criminal and immoral behavior of “inferiors” might otherwise have on a “racially pure” society. Key figures in that movement, like Harry Laughlin, wrote “model” sterilization legislation. These proposals were eventually enacted into law in 30 states. One of those was Virginia, which adopted its Sterilization Act in 1924. U.S. sterilization laws were copied by the Nazis in 1933 with their “Law on Preventing Hereditarily Ill Progeny.” Under that law, the Nazis sterilized hundreds of thousands of those they labelled “defective”. (The Nazi Connection: Eugenics, American Racism and German National Socialism, Stefan Kuhl)  

No Supreme Court case was more directly the result of the influence of the eugenics movement than Buck v. Bell. Carrie Buck was born to poor white parents who abandoned her at a young age. As a result of being raped by her foster parents’ nephew, she became pregnant. Her foster parents then had her institutionalized in the Virginia State “Colony for Epileptics and Feebleminded.” The Superintendent of that “Colony” determined that Carrie Buck was an “imbecile” who needed to be sterilized because “her welfare and that of society will be promoted by her sterilization.” He claimed that her mother was also “feeble-minded” and deemed her young child “socially inadequate.”

Carrie Buck then had a sham hearing in front of the Colony’s Board of Directors, and a further “hearing” in a Virginia Circuit Court, both of which upheld the Superintendent’s decision. The “star witness” in the case was none other than racist Harry Laughlin himself, who had every reason to enthusiastically endorse the sterilization laws that he personally had promoted. The evidence introduced by the State in one of these hearings also included the fraudulent book, The Kallikak Family, authored by eugenicist Henry Goddard. Goddard was the director of a psychological laboratory in a New Jersey “Training School for the Feeble-Minded.” The phony “family studies” presented in the book pushed the pseudo-scientific idea that “racial hygiene” required that “hereditary degeneracy” be combatted and exterminated. (Who Was Deborah Kallikak, Smith and Wehmeyer) 

The 8-1 U.S. Supreme Court decision in the case (no dissenting opinion was written) enthusiastically adopted both the rhetoric and legal playbook of the eugenicists. “Eminent jurist” Oliver Wendell Holmes, writing for the majority, rejected Carrie Buck’s attorney’s constitutional arguments. The Court said that she had been given plenty of “due process” in the hearings, in accordance with Virginia’s “very careful” legal provisions “which protect the patients from possible abuse.” He left no doubt about the Court’s endorsement of the eugenicists’ ideas:

“It would be strange if it [the public welfare] could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind … Three generations of imbeciles are enough.”

Carrie Buck was white and the potential for sterilization was theoretically a danger for anyone labelled an “imbecile” or “insane”, regardless of skin color. Nevertheless, the eugenics movement behind these laws clung to a maniacal belief in “Nordic” superiority and “race purity”. These ideas coincided with the U.S. capitalists’ need to divide the working class and make super-profits off of black labor. Not surprisingly then, over the next 50 years black women in many states were sterilized at a far higher rate than their percentage in the population. All told, upwards of 70,000 people were forcibly sterilized during the twentieth century. (3/7/16 NPR interview of Adam Cohen, author of Imbeciles, The Supreme Court, American Eugenics and the sterilization of Carrie Buck)

Nazi doctors prosecuted in the Nuremburg trials for their participation in euthanasia of hundreds of thousands of disabled people pointed to U.S. compulsory sterilization laws as proof that the U.S. and other Allied countries had their own methods of eliminating “inferior elements”. At least one of them cited the Buck v. Bell decision as an example of a legal measure needed to preserve “racial hygiene.” (Kuhl) Buck v. Bell has never been expressly overturned by the Supreme Court. Although sterilization laws like those in Virginia have been repealed, many states still allow involuntary sterilization of “mental incompetents.”

U.S. Concentration Camps

As the Nazis were concocting their genocidal “final solution to the Jewish question” at their 1942 Wannsee Conference, some of their supposed enemies were copying, albeit on a less murderous level, their legalization of racism. After the U.S. declared war on Japan, the Japanese-American population on the West Coast of the U.S., the overwhelming number of whom were citizens and legal permanent residents, was subjected to a succession of military orders. These orders first imposed a curfew, then required evacuation to assembly centers and “relocation centers.” followed by internment in concentration camps located in the interior Western U.S. The military orders were issued by General John DeWitt and authorized by Executive Order 9066, signed by Franklin Delano Roosevelt (FDR) on February 19, 1942. The order allowed military commanders to “prescribe military areas” “from which any or all persons may be excluded and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions” the commander wanted to impose. All of this was justified as a way of preventing “espionage and sabotage” by Japanese-Americans who were presumed guilty of “disloyalty.”

Fred Toyosaburo Korematsu was a U.S. citizen born in Oakland, California whose parents immigrated to the U.S. in 1905. Like many other Japanese-American workers, he encountered racism early in life. Even before the Japanese attack on the U.S. naval based at Pearl Harbor, he was fired from several jobs because he was Japanese. Korematsu defied the May 3, 1942 military order that required all Japanese-Americans to report to assembly centers. He went into hiding near Oakland. Later in May he was arrested. He was put on trial in U.S. District Court, where he was convicted of violating a U.S. law that criminalized any failure to follow military orders, sentenced to five years’ probation and placed with his family in a concentration camp in Utah. Meanwhile, local California lawyers had begun to challenge the various military orders.

Against the orders of the National Office of the American Civil Liberties Union (ACLU), which didn’t want to challenge FDR’s Executive Order, a California ACLU lawyer took Korematsu’s case in order to challenge the constitutionality of the military orders and the internment camps  (https://www.aclu.org/issues/civil-liberties/during-japanese-american-incarceration-aclu-lost-and-then-found-its-way). While Korematsu’s case was being appealed, the Supreme Court rendered a unanimous decision in Kiyoshi Hirabayashi v. United States. The Court upheld the conviction of a Japanese-American for violating the curfew imposed by one of the military orders.

As was well known to all the Justices on the Supreme Court when it issued its decision in Toyosaburo Korematsu v. United States, General DeWitt was a virulent racist. As one of the dissenting opinions in the case pointed out, his “Final Report, Japanese Evacuation from the West Coast” described all Japanese-Americans as “subversive,” belonging to “an enemy race” whose “racial strain are undiluted” constituting “over 112,000 potential enemies … at large today.” In testimony before a House of Representatives subcommittee in 1943, DeWitt let it all hang out: “I don’t want any of them here. They are a dangerous element … It makes no difference whether he is an American citizen, he is still Japanese … But we must worry about the Japanese all the time until he is wiped off the map …”

 Nevertheless, in a 6-3 decision, the majority opinion upheld Korematsu’s conviction and the racist military orders that he refused to follow. While denying that the orders were motivated by “racial antagonism,” the decision sanctioned the military assessment that there were “an unascertained number of disloyal members of the group [of Japanese-Americans]” but “that it was impossible to bring about an immediate segregation of the disloyal from the loyal.” It cited Congressional hearings, which supposedly established that there were thousands of “disloyal” Japanese-Americans.

The interned Japanese-Americans were not released and able to return to their homes until 1945. Those who had been farmers found their land “legally” stolen, and many others lost all of the belongings they could not take with them to the camps. In 1983, forty-one years later, Fred Korematsu’s conviction was finally vacated in the same U.S. District Court where it took place.

But, lest we overestimate the value of this about face by that Court, it is important to understand the facts behind the reversal. In the oral argument in front of the US Supreme Court in 1944, Charles Fahy, the Solicitor General for the U.S. government, had deliberately concealed a U.S. Office of Naval Intelligence Report (the Ringle Report), which had concluded that Japanese-Americans posed little “threat” to U.S. security. The government also intentionally suppressed other intelligence reports that reached similar conclusions. (https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-korematsu-v-us)

Instead, Fahy relied upon the report containing the racist ravings of General DeWitt, which the Supreme Court then used as a “national security” basis for upholding DeWitt’s fascist actions. Thus, the conviction was not vacated because of its “legalization of racism” (as one of the Korematsu dissenters labelled the majority opinion); it was vacated due to the government’s misconduct in withholding evidence.

Of course, DeWitt could not have done what he did without the legal justification that FDR’s Executive Order gave him, which the Supreme Court heavily relied upon in its decision. It is also important to remember that five of the six Justices voting with the majority in Korematsu were FDR appointees. These appointments took place in the aftermath of Roosevelt’s threat to “pack the court” with liberal justices when the conservative majority kept overturning New Deal legislation. The capitalists backing FDR believed these reforms were necessary to undermine the militant working class struggle being led by the U.S. Communist Party and forestall any move towards socialist revolution. One lesson for the current debate over Trump’s Supreme Court appointees: be careful what you wish for- you may be surprised.

Recent Racist Rulings

Korematsu was finally discredited (though not expressly overruled)in 2018 by the current Chief Justice John Roberts-led Supreme Court. But that token 74-years-too-late action came in a case which once again sanctioned policies attacking yet another group reviled by ruling class-inspired racism. This time, Muslim immigrants had been subjected to racist and fascist President Donald Trump’s travel ban. That case, Trump v. Hawaii, represents the latest incarnation of the legalized racism that has permeated U.S. Supreme Court decisions for at least 197 years.

Since readers of this blog are no doubt generally familiar with the historical background of the travel ban, we will not repeat that long sequence of events here. Nevertheless, it is important to remind readers of a few of the statements made by Trump himself, his campaign or members of his administration prior to the issuance of the Executive Orders and Presidential Proclamation that enacted the ban.

Citing a phony poll from an anti-Muslim, far right think-tank, the “Center for Security Policy” (led by Frank Gaffney, who claimed ex-President Barack Obama was a Muslim), Trump’s campaign website stated that 25% of those Muslims polled “agreed that violence against Americans here in the U.S. is justified as a part of a global jihad.” In a December 8, 2015 television interview, Trump justified his travel ban plans by noting that FDR “did the same thing” when he interned Japanese-Americans. At a pre-election rally in South Carolina, Trump raved about General John J. Pershing’s hideous massacre of Muslim insurgents in the Phillipines. After being elected he urged his supporters to “study” Pershing’s barbaric actions against “terrorists.”

Trump’s first Executive Order (EO-1) suspended all entry of immigrants (with or without permanent visas) for 90 days from seven predominately-Muslim countries- Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. After lower federal Courts blocked the entry restrictions of EO-1, Trump and Co. revoked EO-1 and substituted a second Executive Order (EO-2), which included in its travel ban six of the seven countries listed in EO-1. A Proclamation issued six months later banned travel completely or placed restrictions on travel for five of the seven original countries plus three additional countries, specifically added to make it appear that the travel ban was based on “national security” grounds, not racism.

Remarkably, while Trump’s EOs and Proclamation were being challenged in the federal courts, Trump continued making public statements making it clear that the follow-up EO and Proclamation were merely a façade for accomplishing what the original EO set out to do. For example, at a rally he stated that EO-2 was a “watered down version of the first one” which had been “tailored” at the behest of “the lawyers. He regretted that he couldn’t “go all the way” with EO-1 and casually remarked that it was “very hard” for Muslims to assimilate in the U.S.  Months later, he retweeted three anti-Muslim videos that originated with the far right “Britain First” party, pushing the racist and fascist line that “all Muslims are violent”. (All of Trump’s statements are contained in one of the two dissenting opinions in Trump v. Hawaii; they were easily accessible to anyone who cared to look).

Despite all the evidence of what legal practitioners and judges obliquely refer to as “racial animus”, the Supreme Court upheld EO-2 and the Proclamation. The 5-4 majority opinion referenced, but then discarded as irrelevant, a federal law that prohibited discrimination in the issuance of an immigrant visa based upon “race, sex, nationality, place of birth or place of residence.” How so, one might ask? Because the issuance of an immigrant visa does not prevent an immigration officer from denying admission to that person upon presentation of the visa at the port of entry. So, the Court essentially ruled, the discrimination prohibition does not apply to actual entry into the U.S. The majority also pointed out (correctly) that other U.S. Presidents (Carter, Reagan and others) had excluded immigrants based solely upon nationality.

Like the Court’s decision in Korematsu, the Trump v. Hawaii majority constantly returned to the power of the Executive branch to ensure “national security.” Similar to the majority’s opinion in Fong Yue Ting, it couched its refusal to reject the obvious racism behind both EOs and the Proclamation with highly dubious references to the power of “political departments” that are “largely immune from judicial [oversight]” to determine who is, or isn’t, admitted to the U.S. These fig-leafs for the reality of the racist effect of its decision only go to show that legal principles have been and continue to be bent to justify almost any rationale the Court wishes to concoct.

Among the dozens of “Amicus Curiae” (Friend of the Court) Briefs submitted on behalf of those challenging the “Muslim ban”, were those submitted by Former National Security Officials, retired Generals and Admirals, and major U.S. Corporations. In addition, Clinton Secretary of State Madeleine Albright (author of the infamous statement that the deaths of hundreds of thousands of Iraqi children were “worth it”), former CIA Director John Brennan and Director of National Intelligence James Clapper all opposed the ban. All of these were favorably referenced in the key dissenting opinion and disclosed an important aspect of the battle over the ban. One section of the ruling class believed the ban actually harmed U.S. foreign policy interests, thereby hindering U.S. “national security,” and were opposed to it for that reason.

It is in this light that we should view a back and forth exchange between the Court majority and two of the dissenters. Before Court decisions that are not unanimous are finalized, it is not unusual for each side to exchange drafts of their decisions, giving both majority and the dissenters an opportunity to comment on and respond in their final version to arguments made by their opponents. In their draft, two of the dissenters, Sonia Sotomayor and Ruth Bader Ginsburg, invoked the Korematsu case to attack the majority’s expected decision. They cited a prior dissenting opinion by Ginsburg, in which she stated that Korematsu gave “a pass [to] an odious, gravely injurious racial classification.” The dissent made the obvious comparison of the proposed majority opinion with that in Korematsu– a purported national security threat combined with “dangerous stereotypes” about a minority group’s supposed “inability to assimilate and desire to harm the United States” and “strong evidence that impermissible … animus motivated the Government’s policy.”

In response to the two dissenters, the majority’s published decision flatly stated that “Korematsu has nothing to do with this case.” In a vain attempt to get out from under Korematsu’s specter, however, the majority “took the opportunity to express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and- to be clear- has no place in law under the Constitution.” The dissent’s response in its published opinion was that the majority decision “redeploys the same dangerous logic underlying Korematsu and merely replaces one gravely wrong decision with another.”

One can debate whether the dissenters in Trump v. Hawaii were motivated by a genuine commitment to anti-racist principles, whether (as the majority complained) they were merely seeking “rhetorical advantage” for their legal position, or whether they were choosing sides in a battle between different sections of the capitalist ruling class. The bottom line here is that had Trump been able to keep his mouth shut or, at a minimum, been more calculating in what he said and proposed, both before he was elected and while his ban was being challenged in the courts, the State of Hawaii and other plaintiffs would have had far less ammunition to challenge the ban. The dissenters might have felt compelled to go along with it. It was only Trump’s gross stupidity and narcissism (and the majority’s abject servility to his demands) that led to the exchange over Korematsu referenced above, and its discrediting by the majority.    

Conclusion

What are some of the lessons that can be learned from this sordid legacy? First of all, the eight cases examined are only the most outstanding examples of how racism has permeated both the opinions of, and the legal doctrines developed by, the High Court.

Second, because of space limitations, this article has left out the effect of mass, anti-racist struggle on the Court. Wave after wave of anti-racist struggle over the same period discussed in this piece (see below) has for now made it more difficult for the Court to openly endorse governmental “racial classifications” and the persistent capitalist-inspired racism that drives them.

Third, nevertheless, the law has not abolished those classifications. In legalese, they are to be subjected to “strict scrutiny,” but that does not make them unconstitutional, if they are “narrowly tailored to further compelling governmental interests.” In simple language, if the government can come up with a “national security” or other similar justification to cloak the racism that lurks beneath the legal argument, they may fly legally.

Fourth, it is extremely important to understand the role of liberal justices on the Court.

As we have seen, liberal justices have sometimes joined in backing some of the most racist decisions made by the Court. Court liberals have also authored “landmark” decisions favorable to abortion rights, welfare rights, school integration and criminal procedure rights, to name a few. Without getting into all the politics involved in those decisions, suffice it to say they were a product of a period of mass civil rights struggles of the 1950s and the urban rebellions of the 1960s. Conservative courts have also authored some landmark opinions. The two decisions that came out of the Scottsboro case (recognizing effective assistance of counsel as a constitutional right and outlawing racially exclusive juror pools) were a product of the communist-led anti-racist militancy that involved millions of workers in that campaign.

Fifth, as fascism has grown over the last 40 years, all of these decisions have been seriously undermined. It would be wrong to say that liberal and conservative justices won’t fight hard over their different interpretations of the law (or that their decisions don’t have real-life positive or negative consequences for workers). But, it is also a big mistake to see the role of the liberals as anything other than an important method for the ruling class to convince our class to have confidence in capitalism and its supposedly impartial legal system that guarantees “equal protection of the laws” to everyone regardless of “race” or class.

Lastly, this article has only scratched the surface of the history of the U.S. Supreme Court and the judicial system in general. Hopefully, this article will spur others to further investigate and uncover the truth about how the judicial system really impacts our class. 

Summary of Cases