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The Supreme Court Won’t Save Us — It Was Founded to Defend White Supremacy

Since its inception, the court has operated to enshrine whiteness as the normative baseline in constitutional law.

Conventional wisdom tells us the Supreme Courts dominion is the administration of justice. This misconception, however, prevents us from seeing it for what it truly is — a national defense agency.

The Supreme Court’s path and, more significantly, the overall path of the U.S. are now being shaped by a conservative supermajority that is focused, resolute and unswerving in its commitment to systemically gut constitutional rights.

The court’s recent rulings are part of the Republican Party’s attempt to restore absolute rule through a right-wing ideological takeover of the courts. Though the groundwork for such a takeover has been underway for decades at the state level, Donald Trump’s presidency undoubtedly helped accelerate plans when, after the GOP undemocratically facilitated the appointment of two new justices to the Supreme Court, Trump unfairly and illegitimately appointed a third. The stacking of the court with far-right justices is a strategic move meant to defend white Christian nationalism.

The Constitution, which expressly calls for the Supreme Court’s existence, was drafted using blackness as the counterpoint to the framers’ core democratic values. In fact, the Constitution was written by slaveowners and was intended to be, in the words of historian David Waldstreicher, “deliberately ambiguous — but operationally proslavery.” Indeed, several of the Constitution’s clauses were written with the intent to strengthen the institution of slavery, such as the clause granting Congress the power to marshal “the Militia” to “execute the Laws of the Union, suppress Insurrections and repel Invasions.” This clause made it possible to subdue, by any means necessary, the insurrections the framers and slaveholders feared the most, which were rebellions led by Black enslaved people. Furthermore, the constitutional guarantee to private property, made possible through the genocide of Indigenous tribes and theft of their lands, sought to promote the economic prosperity and spatial freedom of whites. The court protected the business of slavery for over three generations.

The most influential pre-Civil War Supreme Court justices — Chief Justices John Marshall, Roger B. Taney and Associate Justice Joseph Story — viewed opposition to slavery as a threat to the national economy and security. Justice Marshall, the founder of American law and the longest-serving chief justice in U.S. history, was perhaps the most committed of the justices to maintain slavery.

Paul Finkelman, a specialist in American legal history, explains in his new book, Supreme Injustice: Slavery in the Nations Highest Court, that Marshall “wrote almost every decision on slavery, shaping a jurisprudence that was hostile to free blacks and surprisingly lenient to people who violated the federal laws banning the African slave trade.” Importantly, Marshall’s slavery jurisprudence was influenced by his own involvement in the slave trade. Marshall often purchased, gifted or sold large numbers of Black enslaved people and, despite his numerous documented “transactions,” upon his death, as Finkelman tells us, “Marshall still owned more than 150 people. Had he not given away and sold so many, he would have owned 300 or more.”

“Before the Civil War,” legal historian Michael J. Klarman explains, “the Court upheld federal fugitive slave laws against substantial constitutional changes, and it invalidated the laws of Northern states that were designed to protect free blacks from kidnapping from slave catchers.” After the Civil War, Klarman adds, the courts freed whites who enacted racial violence, invalidated laws granting black people equal access to public accommodations, and protected the constitutionality of state-mandated racial segregation laws. All of these measures guaranteed the economic and political disenfranchisement of Black people.

Then, of course, there is the Dred Scott v. Sandford case, in which Chief Justice Taney ruled that no free or enslaved African American could be a citizen of the United States and, as such, did not have a right to sue in federal court. Taney opined: [African Americans] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.” Writing in the Washington and Lee Law Review, Robert Burt argues that Taney recites the most explicit racist dogma” and that no decision has been more consistently reviled.” Indeed, and yet, this is the belief upon which this country was founded, and which the Supreme Court was entrusted to defend.

Placing the Supreme Court in the context of this history reveals a pattern. Since its inception, the court has generally operated to enshrine whiteness as the normative baseline in constitutional law, and to strengthen this baseline by consistently favoring and reinforcing the superior status of whites in the U.S.

Chair of Civil Rights and Civil Liberties at UCLA School of Law Cheryl I. Harris writes, “Following the period of slavery and conquest, white identity became the basis of racialized privilege that was ratified and legitimated in law as a type of status property.” And so, whiteness and property share the same conceptual premise of a right to exclude. Whiteness, however, occupies a normative position of authority, legibility and power in society through its relation to, distance from, and subordination and exclusion of Blackness. The right to exclude implies the need to defend whiteness as property.

To be sure, this image of the Supreme Court does not align with the one most Americans hold. The image of the court as a vanguard of liberty and justice, protecting those who are disadvantaged, oppressed or treated unjustly, stems from its own rebranding during the civil rights era. The court instrumentalized this era to recast itself as “colorblind,” strategically using race-neutral language to accommodate demands for civil, economic and racial justice while simultaneously using it as a shield to maintain racial domination. “White supremacy,” according to Nancy Heitzeg, professor of sociology at St. Catherine University, “once writ large in the law via slavery and Jim Crow segregation, was removed from its legalized pedestal with the Civil Rights Act of 1964, The Voting Rights Act of 1965 and finally, The Fair Housing Act of 1968.” Though the law became race neutral, she cautions us, the court’s institutionalized racism “remains merely transformed with its systemic foundations intact.”

Whats more, the conservative highjacking of the court by religious fundamentalists means constitutional law is being reshaped through the lens of Christian Dominionism (defined by Frederick Clarkson of Political Research Associates as the belief that Christians are called by God to exercise dominion over every aspect of society by taking control of political and cultural institutions). White Christian dominionists believe that the U.S. is a fundamentally Christian nation and, therefore, that they have the authority to enact religious supremacy. This was stated by Justice Samuel Alito at a summit convened in July by Notre Dame Law Schools Religious Liberty Initiative. During his speech, Alito made a call to arms on behalf of Christian dominionism, stating: “The challenge for those who want to protect religious liberty in the United States, Europe and other similar places is to convince people who are not religious that religious liberty is worth special protection.” Pope Francis, echoing Alito’s words, stated that religious liberty “remains one of America’s most precious possessions,” adding that “all are called to be vigilant … to preserve and defend that freedom from everything that would threaten or compromise it.”

Religious liberty is not what is being criticized here but rather the euphemistic use of the phrase to mean white Christian dominionism. Perilously, the Republican Party’s desire to strengthen white supremacist ideology through religious fundamentalism is succeeding insofar as the court’s most recent rulingsDobbs, NYSRPA and Vega — are restructuring constitutional doctrine to reflect the interests of white Christian nationalists.

To be sure, Democratic leaders recently introduced a bill to establish term limits for Supreme Court justices, a measure Republicans have opposed. They have revived calls to reform the court by increasing the number of justices. This strategy is being presented as a necessary yet reasonable measure to ensure fair and unbiased judicial reviews. But this push to reform the Supreme Court risks distracting attention from the racist origins of the court and what Keeanga-Yamahtta Taylor describes as the “Court’s undemocratic role in U.S. society.” Acknowledging the courts fundamental role as a white-dominated national defense agency makes recent rulings look less extreme and more in line with the courts prime mission of defending white power.

Instead of pushing merely to expand the Supreme Court by adding more justices, we should strip it of its authority by shrinking its jurisdiction and its outsized power over our lives. Better yet, we should be asking ourselves, what steps can we begin taking toward abolishing it?

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