The following is the introduction to Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted:
“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.”
– Future Chief Justice John Roberts, April 19, 1983
On 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.
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.
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). 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.
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.” 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.” 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, and that women could be sterilized at the state’s command.
- They held that children could be made to work in a cotton mill for as little as ten cents a day.
- They relegated countless adults to dank sweatshops and deadly factories, with neither a union nor a minimum wage to protect them.
- They gave billionaires a far-reaching right to corrupt American democracy, and neutered much of America’s most important voting rights law.
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. 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.”
The justices, in other words, have routinely committed two complementary sins against the Constitution. They’ve embraced extraconstitutional 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 unpredictable events – including a fatal heart attack, a former Ku Klux Klansman’s dramatic change of heart, and a decision that President Dwight D. Eisenhower later described as the “biggest damned-fool mistake I ever made” – then it is likely that the Court’s 1954 decision declaring public school segregation unconstitutional would have gone the other way.
The justices of the Supreme Court are the closest thing America has to actual royalty. They serve for life and hold their offices due to presidential appointment – not because they earned a mandate from the people in an election. Unlike the president or any member of Congress, the justices go to work each day with no fear that they will be turned out of office if their decisions harm the country.
We trust them with this unchecked power because it ensures their independence. A just court will, at times, order an infamous man or woman to be freed from prison. It will shield hated minorities from their community’s rage. And it will bring many of the nation’s wealthiest and most powerful interests to heel before the law. Judges who fear their next election will be reluctant to enforce unpopular laws, or to tangle with politically influential litigants. As Alexander Hamilton wrote, “nothing can contribute so much to [the judiciary’s] firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.”
Time and time again, however, the justices have taken the trust our Constitution places in them and wielded it to comfort the comfortable and to afflict the afflicted. They’ve read doubtful ideologies into the Constitution’s vaguest phrases. And they’ve ignored provisions intended to protect the unpopular and the least fortunate.
Nor have many of the justices been particularly shy in their efforts to reshape the law in ways they find more agreeable. Not long after the Fourteenth Amendment officially became part of the Constitution, for example, two men – a former justice named John Archibald Campbell and a sitting member of the Court named Stephen Johnson Field – read the ambiguous words of that Amendment and saw an opportunity to reshape the nation. Campbell, a top wartime advisor to Confederate President Jefferson Davis, saw in an amendment intended to abolish American apartheid the power to sustain it instead. Field, meanwhile, was a deep skeptic of government regulation eager to write his own skepticism into the Constitution itself.
Both men would fail in their first effort to impose their vision upon the nation. And yet, before the twentieth century was more than a few years old, both men would achieve their wildest dreams.
Copyright 2015 by Ian Millhiser. Not to be reposted without permission of the publisher, Nation Books.
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