Nathan Newman

Why Defend Right-Wing Courts?

In recent weeks, rightwing politicians like House Majority Leader Tom Delay and Sen. John Cornyn, both Texas Republicans, have attacked the courts for their rulings on abortion and gay rights. In response, we've seen many progressives suckered into becoming defenders of the "independent judiciary," as if our courts are some model of fairness to the poor and oppressed.

Just look at the record:

• Courts have put two million mostly poor, mostly non-white people in prison. Who cares about Miranda rights or the ephemera of due process with a concrete result like that?

• Courts have struck down affirmative action laws across the country, gutted the Violence Against Women Act, undermined the rights of the disabled, overturned laws banning anti-gay discrimination by the Boy Scouts, and generally weakened the rights of public employees against discrimination.

• Courts have repeatedly weakened workers' rights to form unions.

• Courts have expanded property rights at the expense of democratic control of land use decisions and overturning laws to help mineworkers pay for their retirement and health care in the name of protecting the profits of mineowners.

Liberals like to believe that, despite all of this, we need to defend courts because they are better protectors of minority rights than elected leaders. But that myth ignores our own history. Courts were historically the staunchest legal defenders of slavery before the Civil War, as embodied in the infamous Dred Scott decision, and after the war, courts were the primary engine for destroying the Reconstruction civil rights laws and encouraging the mass murder and lynchings of black people as a tool by Confederate terrorists to institutionalize Jim Crow Apartheid.

In our history, the more democratic the institution, the more dedicated it has been to protecting civil rights. When the NAACP began campaigning early in this century for a federal law to ban lynchings of blacks, the majoritarian House voted as early as 1922 to ban lynchings (as they would in 1937 and 1940), only to see the bill die in the Senate at the hands of a filibuster.

How did the senators justify their filibusters? That the Supreme Court supported their position that federal anti-lynching laws were unconstitutional.

And they were right that the courts were legal defenders of mob rule in the South. Take 1873 when in Colfax, La., a disputed election led to the mass murder of over 70 blacks. The Reconstruction Congress had recently passed laws making such voting-related murders illegal under federal law and the president's attorney general (a position created under those laws to prosecute such racist attacks) brought over 100 indictments.

But within months, the federal courts dismissed the indictments, declaring that Congress lacked the power under the Constitution to prevent such private racist assaults. And in 1875, the US Supreme Court agreed in US v. Cruikshank that mobs were free to murder at will in the South and Congress was barred by the Constitution to stop it.

Quote the Supreme Court: "The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not [add] any thing to the rights which one citizen has under the Constitution against another."

Since the Colfax murders involved private action, not state government actions, the Congress could do nothing to punish them and the Reconstruction laws banning mob murder of blacks were de facto struck down. These words by the Supreme Court were probably the most important in American legal history, since they overturned the results of the American Civil War, handing victory for the next century to Confederate mobs in the South who would drive blacks from the voting booths under the threat of lynchings and murder and impose an American Apartheid.

And note, the 1875 Cruikshank decision came a year before the 1876 presidential election. White mobs were greenlighted to steal elections across the South, which led to the deadlocked results of that year -- which in turn led to the dismantling of military Reconstruction.

By then, the military presence was irrelevant since the Supreme Court had barred the federal government from doing anything to stop the violent overthrow of the Reconstruction-era state governments.

To repeat, it was the Supreme Court that instituted racist mob rule in the South for the next century and protected it under the color of the federal constitution. So don't talk to me about the importance of an "independent judiciary" given a century of blood and mass murder on the hands of the US Supreme Court.

And that sanctioning of private violence has not died in the modern era. When Christy Brzonkala was raped in Virginia in 1994 and the state refused to indict her rapists, she sought to sue her assailants under the new federal Violence Against Women Act (VAWA). But the Supreme Court in its 2000 US v. Morrison decision threw out her case and struck down VAWA as unconstitutional, actually quoting Cruikshank to the effect that the 14th Amendment "adds nothing to the rights of one citizen as against another."

Liberals need to get over their Warren Court nostalgia and face the reality that courts have no inherent value as checks on democratic power -- in fact, the track record of courts over our history is of far worse hostility to minority rights than the democratic branches of government. While progressives should oppose the rightwing judges nominated by Bush, we should not fall into the trap of defending a court system that we ourselves should be attacking.

Nathan Newman is director of Agenda for Justice, an organization that supports progressive policy campaigns. or see

Home Page

Copyright © 2005 The Progressive Populist