Supreme Court Decision Quotes

More than a decade ago, a Supreme Court decision literally wiped off the books of fifty states statutes protecting the rights of unborn children. Abortion on demand now takes the lives of up to 1.5 million unborn children a year. Human life legislation ending this tragedy will some day pass the Congress, and you and I must never rest until it does. Unless and until it can be proven that the unborn child is not a living entity, then its right to life, liberty, and the pursuit of happiness must be protected.

It is often forgotten today that Plessy v. Ferguson was not an isolated Supreme Court decision. In case after case, the Court reaffirmed and upheld the ability of states to enforce apartheid.

But “Trust Women” doesn’t mean that every woman is wise or good or has magical intuitive powers. It means that no one else can make a better decision, because no one else is living her life, and since she will have to live with that decision, not you, and not the state legislature or the Supreme Court, chances are she is doing her best in a tight spot.

Thirteenth and Fourteenth Amendments—the ones abolishing slavery and guaranteeing citizenship rights—still exist, but they’ve been so weakened by custom, by Congress and the various state legislatures, and by recent Supreme Court decisions that they don’t much matter.

Some of us as individuals find abortion offensive to our most basic principles or morality, but that cannot control our decision,' she said. 'Our obligation is to define the liberty of all, not to mandate our own moral code.

The Supreme Court decided that corporations are people and they have the right of free speech and the right without disclosure—all of this is through the Citizens United Supreme Court decision—to put as much money as they want into campaigns all over the country.

It is the individual who can and does make a difference even in this increasingly populous, complex world of ours. The individual can make things happen. It is the individual who can bring a tear to my eye and then cause me to take pen in hand. It is the individual who has acted or tried to act who will not only force a decision but also have a hand in shaping it. Whether acting in the legal, governmental, or private realm, one concerned and dedicated person can meaningful affect what some consider an uncaring world. So give freely of yourself always to your family, your friends, your community, and your country. The world will pay you back many times over.

One more thing, gentlemen, before I quit. Thomas Jefferson once said that all men are created equal, a phrase that the Yankees and the distaff side of the Executive branch in Washington are fond of hurling at us. There is a tendency in this year of grace, 1935, for certain people to use this phrase out of context, to satisfy all conditions. The most ridiculous example I can think of is that the people who run public education promote the stupid and idle along with the industrious — because all men are created equal, educators will gravely tell you, the children left behind suffer terrible feelings of inferiority. We know all men are not created equal in the sense some people would have us believe — some people are smarter than others, some people have more opportunity because they’re born with it, some men make more money than others, some ladies make better cakes than others — some people are born gifted beyond the normal scope of most men. But there is one way in this country in which all men are created equal — there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court. It can be the Supreme Court of the United States or the humblest J.P. court in the land, or this honorable court which you serve. Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal. I'm no idealist to believe firmly in the integrity of our courts and in the jury system — that is no ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up. I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family. In the name of God, do your duty. In the name of God, believe him.

In Madison’s formulation, the right to bear arms was not inherent but derivative, depending on service in the militia. The recent Supreme Court decision (Heller v. District of Columbia, 2008) that found the right to bear arms an inherent and nearly unlimited right is clearly at odds with Madison’s original intentions.37

I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday. —Supreme Court Justice Robert H. Jackson, 1948

If the world played fair, he’d play fair. But the cards are stacked against the prosecutors and police. Miranda, Mapp, all the other Supreme Court decisions, give the advantage to the skels.

The Cherokee Nation took a case against Georgia to the US Supreme Court. With Chief Justice John Marshall writing for the majority, the Court ruled in favor of the Cherokees. Jackson ignored the Supreme Court, however, in effect saying that John Marshall had made his decision and Marshall would have to enforce it if he could, although he, Jackson, had an army while Marshall did not.

White Americans have contented themselves with gestures that are now described as "tokenism". For hard example, white Americans congratulate themselves on the 1954 Supreme Court decision outlawing segregation in the schools; they suppose, in spite of the mountain of evidence that has since accumulated to the contrary, that this was proof of a change of heart – or, as they like to say, progress. Perhaps. It all depends on how one reads the word "progress". Most of the Negroes I know do not believe that this immense concession would ever have been made if it had not been for the competition of the Cold War, and the fact that Africa was clearly liberating herself and therefore had, for political reasons, to be wooed by the descendants of her former masters. Had it been a matter of love or justice, the 1954 decision would surely have occurred sooner; were it not for the realities of power in this difficult era, it might very well not have occurred yet.

It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision [in Bush v. Gore]. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is pellucidly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

and line of cases. Justice Byron R. "Whizzer" White, a JFK appointee, dissented, calling Doe an act of "raw judicial power," as it took these decisions from the states and enshrined their determination in the Supreme Court's reasoning.

many scientists have interfered with science in precisely the way courts always worried tissue donors might do. “It’s ironic,” she told me. “The Moore court’s concern was, if you give a person property rights in their tissues, it would slow down research because people might withhold access for money. But the Moore decision backfired—it just handed that commercial value to researchers.” According to Andrews and a dissenting California Supreme Court judge, the ruling didn’t prevent commercialization; it just took patients out of the equation and emboldened scientists to commodify tissues in increasing numbers. Andrews and many others have argued that this makes scientists less likely to share samples and results, which slows research; they also worry that it interferes with health-care delivery.

white Americans congratulate themselves on the 1954 Supreme Court decision outlawing segregation in the schools; they suppose, in spite of the mountain of evidence that has since accumulated to the contrary, that this was proof of a change of heart—or, as they like to say, progress.

Such fears seemed more than imaginary because, in 1839, fifty-three recently enslaved Africans had overthrown the white crew of the Cuban slave-ship Amistad as they were being transported from Havana to the island’s eastern sugar frontier. Trying to sail to Africa, the rebels made an accidental landfall on the Connecticut coast. State authorities charged them with murder, but abolitionists intervened and pushed the case into the Supreme Court. Concluding that the Amistad’s cargo had been illegally transported across the Atlantic, the Court made its only pre-twentieth-century antislavery decision. It ruled that the rebels had been kidnapped, that they had freed themselves, and that they could return to Africa.19

If logic and reason, the hard, cold products of the mind, can be relied upon to deliver justice or produce the truth, how is it that these brain-heavy judges rarely agree? Five-to-four decisions are the rule, not the exception. Nearly half of the court must be unjust and wrong nearly half of the time. Each decision, whether the majority or minority, exudes logic and reason like the obfuscating ink from a jellyfish, and in language as opaque. The minority could have as easily become the decision of the court. At once we realize that logic, no matter how pretty and neat, that reason, no matter how seemingly profound and deep, does not necessarily produce truth, much less justice. Logic and reason often become but tools used by those in power to deliver their load of injustice to the people. And ultimate truth, if, indeed, it exists, is rarely recognizable in the endless rows of long words that crowd page after page of most judicial regurgitations.

Exclusion [of evidence] exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. [internal citations omitted]

...the Supreme Court made several liberal decisions in the 1970s, indicating the moral decline of the nation as a whole.

The Supreme Court was expected to hand down a landmark decision having to do with gay rights.

Mob rule cannot be allowed to override the decisions of our courts.

Monday, June 29, 2015, after the Obergefell decision in the Supreme Court.

The justices heard arguments, but then declared that a procedural irregularity in the appeal barred them from proceeding to a decision. Not until 1792 did the Supreme Court begin issuing opinions.

Ingersoll was introduced as one of the main speakers by Frederick Douglass and proceeded, unlike most leaders of his party, to eviscerate the court’s logic. “This decision takes from seven millions of people the shield of the Constitution,” he said. “It leaves the best of the colored race at the mercy of the meanest of the white. It feeds fat the ancient grudge that vicious ignorance bears toward race and color. It will be approved and quoted by hundreds of thousands of unjust men. The masked wretches who, in the darkness of night, drag the poor negro from his cabin, and lacerate with whip and thong his quivering flesh, will, with bloody hands, applaud the Supreme Court. The men who, by mob violence, prevent the negro from depositing his ballot—those who with gun and revolver drive him from the polls, and those who insult with vile and vulgar words the inoffensive colored girl, will welcome this decision with hyena joy. The basest will rejoice—the noblest will mourn.

WE THE PEOPLE PULL THE CORD . . . there is no one who understands; there is no one who seeks God. Romans 3:11 The Founding Fathers didn’t think too highly of human nature, so they created three branches of government to keep power-hungry officials in check. They also slipped another “check” on these politicians into the Constitution. Remember learning how the Constitution can be amended through Congress? Well, even better, there’s a lesser-known way to change it when necessary, without Congress or the president stopping “We the People.” Our Founders knew government could grow so drunk on its own power that it wouldn’t ever voluntarily restrict itself, so constitutionalist George Mason allowed for a “Convention of States” in Article V to give the power back to the people. My friend Mark Levin describes this: “By giving the state legislatures the ultimate say on major federal laws, on major federal regulations, on major Supreme Court decisions, should 3/5 of state legislatures act to override them within a two year period, it doesn’t much matter what Washington does or doesn’t do. It matters what you do . . . the goal is to limit the entrenchment of Washington’s ruling class.” Keep educating the people, Mark!

Robert Dahl’s assessment of the Court’s role in the political system is from his article “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (1957) 279–95.

Eisenhower has been much criticized for his failure publicly to endorse the Court's decision. But he felt that doing so would set an undesirable precedent. If a president endorsed decisions he agreed with, might he feel compelled to oppose decisions he did not agree with? And what would that do to the rule of law? "The Supreme Court has spoken and I am sworn to uphold ... the constitutional processes.... I will obey."3

Until the Supreme Court’s landmark decision in Texas v. Johnson, which created or recognized, according to one’s point of view, the constitutional right to burn the American flag, the law could prohibit desecration of venerated objects. Now courts hold that the First Amendment protects flag-burning.29 And yet in 2019, an Iowa judge sentenced thirty-year-old Adolfo Martinez to fifteen years in prison for the “hate crime” of stealing and burning a rainbow flag, which symbolizes colorful sexual desires.30 So in fact, the government still outlaws desecration of venerated objects; it’s just that the objects of veneration are different.

But there is one way in this country in which all men are created equal—there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court. It can be the Supreme Court of the United States or the humblest J.P. court in the land, or this honorable court which you serve. Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and in the jury system—that is no ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and ajury is only as sound as the men who make it up. I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family. In the name of God, do your duty.

But Hamilton lost the day, Jefferson won, and we have a Bill of Rights built into our Constitution that, as Hamilton feared, has increasingly been used to limit, rather than expand, the range of human rights American citizens can claim. And because it’s in our Constitution, the only way other than a Supreme Court decision to make explicit “new” rights (such as a right to health care) is through the process of amending that document.

The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.….

Indeed, when people talk about how the Constitution is designed to implement the principles of the Declaration, they almost always point to the Fourteenth Amendment—sometimes without noticing that this means they are not talking about the Founders’ Constitution. In part due to Supreme Court decisions, however, the federal government ended up protecting individuals primarily from states and secondarily, if at all, from other individuals.

Protests and looting naturally capture attention. But the real rage smolders in meetings where officials redraw precincts to dilute African American voting strength or seek to slash the government payrolls that have long served as sources of black employment. It goes virtually unnoticed, however, because white rage doesn’t have to take to the streets and face rubber bullets to be heard. Instead, white rage carries an aura of respectability and has access to the courts, police, legislatures, and governors, who cast its efforts as noble, though they are actually driven by the most ignoble motivations. White rage recurs in American history. It exploded after the Civil War, erupted again to undermine the Supreme Court’s Brown v. Board of Education decision, and took on its latest incarnation with Barack Obama’s ascent to the White House. For every action of African American advancement, there’s a reaction, a backlash. The

Random chance—a freakishly close vote in the single decisive state—gave the Supreme Court the chance to resolve the 2000 presidential election. The character of the justices themselves turned that opportunity into one of the lowest moments in the Court's history. The struggle following the election of 2000 took thirty-six days, and the Court was directly involved for twenty-one of them. Yet over this brief period, the justices displayed all of their worst traits—among them vanity, overconfidence, impatience, arrogance, and simple political partisanship. These three weeks taint an otherwise largely admirable legacy. The justices did almost everything wrong. They embarrassed themselves and the Supreme Court.

CHIEF JUSTICE DAY, in a Decision of the U. S. Supreme Court, June 3, 1918: "If Congress can regulate matters entrusted to local au thority, the power of the States may be eliminated and thus our system of government be practically destroyed.

A little more than half a century after Brown, the election of Obama gave hope to the country and the world that a new racial climate had emerged in America, or that it would. But such audacious hopes would be short-lived. A rash of voter-suppression legislation, a series of unfathomable Supreme Court decisions, the rise of stand-your-ground laws, and continuing police brutality make clear that Obama’s election and reelection have unleashed yet another wave of fear and anger. It

The Thirteenth and Fourteenth Amendments—the ones abolishing slavery and guaranteeing citizenship rights—still exist, but they’ve been so weakened by custom, by Congress and the various state legislatures, and by recent Supreme Court decisions that they don’t much matter. Indenturing indigents is supposed to keep them employed, teach them a trade, feed them, house them, and keep them out of trouble. In fact, it’s just one more way of getting people to work for nothing or almost nothing.

The Law Enforcement Assistance Act of 1965 and the Omnibus Crime Control and Safe Streets Act of 1968 lavished even more federal funds on fighting crime. In addition, landmark Supreme Court decisions such as Terry v. Ohio—which gave the police virtually unlimited powers to stop and frisk citizens without probable cause—intensified the policing of poor neighborhoods and people of color, which, in turn, resulted in record arrest rates. Before long, prisons like Attica were bursting at the seams.

It is a fact of life on our beleaguered little planet that widespread torture, famine and governmental criminal irresponsibility are much more likely to be found in tyrannical than in democratic governments. Why? Because the rulers of the former are much less likely to be thrown out of office for their misdeeds than the rulers of the latter. This is error-correcting machinery in politics. The methods of science, with all its imperfections, can be used to improve social, political and economic systems, and this is, I think, true no matter what criterion of improvement is adopted. How is this possible if science is based on experiment? Humans are not electrons or laboratory rats. But every act of Congress, every Supreme Court decision, every Presidential National Security Directive, every change in the Prime Rate is an experiment. Every shift in economic policy, every increase or decrease in funding for Head Start, every toughening of criminal sentences is an experiment. Exchanging needles, making condoms freely available, or decriminalizing marijuana are all experiments. Doing nothing to help Abyssinia against Italy, or to prevent Nazi Germany from invading the Rhineland was an experiment. Communism in Eastern Europe, the Soviet Union and China was an experiment. Privatizing mental health care or prisons is an experiment. Japan and West Germany investing a great deal in science and technology and next to nothing on defense - and finding that their economies boomed - was an experiment. Handguns are available for self-protection in Seattle, but not in nearby Vancouver, Canada; handgun killings are five times more common in Seattle and the handgun suicide rate is ten times greater in Seattle. Guns make impulsive killing easy. This is also an experiment. In almost all of these cases, adequate control experiments are not performed, or variables are insufficiently separated. Nevertheless, to a certain and often useful degree, such ideas can be tested. The great waste would be to ignore the results of social experiments because they seem to be ideologically unpalatable.

So the justices could plausibly assume that the decision they were about to hand down would meet with general public approval—as in fact it initially did, before the abortion issue became entangled, later in the 1970s, with partisan politics and the rise of the religious Right.

The next year, the Court decided what is generally viewed as the major case of the early years. The decision, Chisholm v. Georgia (1793), provoked an immediate backlash, in the form of the first constitutional amendment to be ratified after the ten amendments of the Bill of Rights.

the U.S. Supreme Court decides an issue—for example, interpreting the Constitution to determine a woman had the right in consultation with her doctor to terminate a pregnancy—that decision cannot be overturned or modified by any state or federal law, only by the U.S. Supreme Court itself.8

A series of Supreme Court decisions in the last two decades struck down race-conscious measures to desegregate schools and workplaces. In City of Richmond v. J.A. Croson Co., decided in 1989, the Court ruled that the former capital of the Confederacy practiced reverse discrimination against whites by adopting a set-aside program to steer some of its construction dollars to minority-owned firms—“even when, without the program, less than one percent of construction contracts went to minorities in a city over 50 percent African American,” as legal scholar Ian Haney Lopez pointed out.

the Honour of the Crown, a concept given its Canadian form in such historic Supreme Court decisions as Guerin in 1984, Sparrow in 1990 and, most recently, the Manitoba Métis case in 2013. The Guerin case is one of those Aboriginal victories at the highest court that have shaped Canada over the last forty years. What is the Honour of the Crown? It is the obligation of the state to act ethically in its dealings with the people. Not just legally or legalistically. Not merely administratively or efficiently. But ethically. The Honour of the Crown is the obligation of the state to act with respect for the citizen.

In a famous 1963 decision, Brady v. Maryland, the U.S. Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

It was difficult, particularly in the Supreme Court judgments, but also in some of the High Court rulings, not to see the personal politics coming through even in the most balanced decisions. He enjoyed the signs of this and derived particular pleasure from the more subtle and half-disguised manifestations of it.

Justice Harry Blackmun’s majority opinion in Roe v. Wade was all about privacy, but the most private parts of a woman’s body and the most private decisions she will ever make have never been more public. Everyone gets to weigh in. Even, according to the five conservative Catholic men on the Supreme Court, her employer.

In the 1896 case Plessy v. Ferguson, the U.S. Supreme Court attempted to clarify the existing racial classifications when it established the “one drop rule”—those with a single Black relative, no matter how distant, were considered Black, even if they appeared white—but this decision only muddled an already complicated issue.

Is it only a coincidence that the same arc of time defining this reinvigorated clerical corruption about sexuality has seen the rise of the fervently political Catholic Church crusade against abortion? It is as if the 1973 war Roe v. Wade decision by the U.S. Supreme Court threw a lifeline to the morally discredited Catholic hierarchy.

decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.

Section 13 of the Judiciary Act, in which Congress gave the Court jurisdiction to decide original mandamus actions like Marbury’s, was therefore unconstitutional and no mandamus could be issued. The decision gave the Court a measure of insulation at a time of political turmoil; without an order, the Jefferson administration had nothing to complain about.

issue a statement attacking the disastrous Citizens United Supreme Court decision. I announced that I would only nominate justices to the Supreme Court who publicly acknowledged their intention to overturn that terrible decision. I was glad to see Hillary Clinton make a similar statement a short time later. I also stated, “It is a national disgrace that billionaires and other extremely wealthy people are able to heavily influence the political process by making huge contributions. The Koch brothers alone will spend more than the Democratic and Republican parties to influence the outcome of next year’s elections. That’s not democracy, that’s oligarchy.” During this period, under the radar, our grassroots efforts were growing rapidly. Two examples come to mind:

wrote Justice Wilson. Not surprisingly, the states were alarmed by this development, and a constitutional amendment to overrule the decision was introduced two days later. In 1798, the Eleventh Amendment received final ratification, providing that the jurisdiction of the federal courts “shall not be construed to extend” to cases brought by citizens of one state against another state.

On a Sunday this January, probably of whatever year it is when you read this (at least as long as I’m living), I will probably be preaching somewhere in a church on “Sanctity of Human Life Sunday.” Here’s a confession: I hate it. Don’t get me wrong. I love to preach the Bible. And I love to talk about the image of God and the protection of all human life. I hate this Sunday not because of what we have to say, but that we have to say it at all. The idea of aborting an unborn child or abusing a born child or starving an elderly person or torturing an enemy combatant or screaming at an immigrant family, these ought all to be so self-evidently wrong that a “Sanctity of Human Life Sunday” ought to be as unnecessary as a “Reality of Gravity Sunday.” We shouldn’t have to say that parents shouldn’t abort their children, or their fathers shouldn’t abandon the mothers of their babies, or that no human life is worthless regardless of age, skin color, disability, or economic status. Part of my thinking here is, I hope, a sign of God’s grace, a groaning by the Spirit at this world of abortion clinics and torture chambers (Rom. 8:22–23). But part of it is my own inability to see the spiritual combat zone that the world is, and has been from Eden onward. This dark present reality didn’t begin with the antebellum South or with the modern warfare state, and it certainly didn’t begin with the Roe v. Wade Supreme Court decision. Human dignity is about the kingdom of God, and that means that in every place and every culture human dignity is contested.

It is not that the historian can avoid emphasis of some facts and not of others. This is as natural to him as to the mapmaker, who, in order to produce a usable drawing for practical purposes, must first flatten and distort the shape of the earth, then choose out of the bewildering mass of geographic information those things needed for the purpose of this or that particular map. My argument cannot be against selection, simplification, emphasis, which are inevitable for both cartographers and historians. But the map-maker's distortion is a technical necessity for a common purpose shared by all people who need maps. The historian's distortion is more than technical, it is ideological; it is released into a world of contending interests, where any chosen emphasis supports (whether the historian means to or not) some kind of interest, whether economic or political or racial or national or sexual. Furthermore, this ideological interest is not openly expressed in the way a mapmaker's technical interest is obvious ("This is a Mercator projection for long-range navigation-for short-range, you'd better use a different projection"). No, it is presented as if all readers of history had a common interest which historians serve to the best of their ability. This is not intentional deception; the historian has been trained in a society in which education and knowledge are put forward as technical problems of excellence and not as tools for contending social classes, races, nations. To emphasize the heroism of Columbus and his successors as navigators and discoverers, and to de-emphasize their genocide, is not a technical necessity but an ideological choice. It serves- unwittingly-to justify what was done. My point is not that we must, in telling history, accuse, judge, condemn Columbus in absentia. It is too late for that; it would be a useless scholarly exercise in morality. But the easy acceptance of atrocities as a deplorable but necessary price to pay for progress (Hiroshima and Vietnam, to save Western civilization; Kronstadt and Hungary, to save socialism; nuclear proliferation, to save us all)-that is still with us. One reason these atrocities are still with us is that we have learned to bury them in a mass of other facts, as radioactive wastes are buried in containers in the earth. We have learned to give them exactly the same proportion of attention that teachers and writers often give them in the most respectable of classrooms and textbooks. This learned sense of moral proportion, coming from the apparent objectivity of the scholar, is accepted more easily than when it comes from politicians at press conferences. It is therefore more deadly. The treatment of heroes (Columbus) and their victims (the Arawaks)-the quiet acceptance of conquest and murder in the name of progress-is only one aspect of a certain approach to history, in which the past is told from the point of view of governments, conquerors, diplomats, leaders. It is as if they, like Columbus, deserve universal acceptance, as if they-the Founding Fathers, Jackson, Lincoln, Wilson, Roosevelt, Kennedy, the leading members of Congress, the famous Justices of the Supreme Court-represent the nation as a whole. The pretense is that there really is such a thing as "the United States," subject to occasional conflicts and quarrels, but fundamentally a community of people with common interests. It is as if there really is a "national interest" represented in the Constitution, in territorial expansion, in the laws passed by Congress, the decisions of the courts, the development of capitalism, the culture of education and the mass media.

The decision’s significance, of course, lay in the Court’s assertion of authority to review the constitutionality of acts of Congress. “It is emphatically the province and duty of the judicial department to say what the law is,” Marshall declared—a line that the Court has invoked throughout its history, down to the present. In the guise of modestly disclaiming authority to act, the Court had assumed for itself great power.

During the 1980s, however, the Court came under increasing pressure to repudiate Roe v. Wade. First the Reagan administration and then the administration of President George H. W. Bush asked the Court to overturn the decision, on five separate occasions. In 1980 the Republican party’s platform had called for the first time for the appointment of judges “who respect traditional family values and the sanctity of innocent human life.

The Court’s exercise of judicial review is an ever-present and renewable source of interbranch tension. While the court-stripping efforts were responses to the Supreme Court’s constitutional rulings, Congress pushes back regularly and more productively against the Court’s statutory decisions. In the early 1990s, Congress responded sharply to the Court’s rightward turn in a series of civil rights cases decided several years earlier.

We all rely on public confidence and trust to give the courts’ decisions their force,” Justice O’Connor said in a lecture on “public trust as a dimension of equal justice.” She explained: “We don’t have standing armies to enforce opinions, we rely on the confidence of the public in the correctness of those decisions. That’s why we have to be aware of public opinions and of attitudes toward our system of justice, and it is why we must try to keep and build that trust.

Sadly, not all veterans had equal access to an education, even under the GI Bill’s amendments. Although no provision prevented African American and female veterans from securing an education under the bill, these veterans returned to a nation that still endorsed segregated schools and largely believed a woman’s place was in the home. For African American veterans, educational opportunities were limited. In the words of historian Christopher P. Loss, “Legalized segregation denied most black veterans admission into the nation’s elite, overwhelmingly white universities, and insufficient capacity at the all-black schools they could attend failed to match black veterans’ demand.” The number of African American students at U.S. colleges and universities tripled between 1940 and 1950, but many prospective students were turned away because of their race. For those African Americans who did earn a degree under the GI Bill, employment discrimination prevented them from gaining positions commensurate with their education. Many African American college graduates were offered low-level jobs that they could have secured without any education. Almost a decade elapsed between V-J Day and the Supreme Court’s landmark decision in Brown v. Board of Education, which struck down segregated schools. It would take another decade after Brown for the civil rights movement to fully develop and for public schools to make significant strides in integrating.

Nazi persecution didn’t limit itself to race. Religion, national origin, alternative lifestyles, persons with disabilities—all were targets. How would you characterize the Slavs? Gypsies? Moors? All the lines get blurred. Even within Judaism, there are many races. There are Negro Jews in Ethiopia and Middle Eastern Jews in Iraq. There have been Jews in Japan since the 1860s. Poland was fractionally Jewish, but there were still three and a half million Jews living there in the 1930s.” “But still, today it all seems so incomprehensible.” Ben raised his eyebrows. “Incomprehensible because we’re Americans? Land of the free and home of the brave? Let’s not kid ourselves. We’ve authored our own chapters in the history of shame, periods where the world looked at us and shook its head. Early America built an economy based on slavery and it was firmly supported by law. Read the Supreme Court’s decision in Dred Scott. We trampled entire cultures of Native Americans. ‘No Irish Need Apply’ was written on factory gates in nineteenth-century New York.” Ben shook his head. “We’d like to think we’re beyond such hatred, but the fact is, we can never let our guard down. That’s why this case is so important. To you and to me. It’s another reminder of what can happen when evil is allowed to incubate. Find a reason to turn your nose up at a culture, to denigrate a people because they’re different, and it’s not such a giant leap from ethnic subjugation to ethnic slaughter.” Catherine

in 1866, with the Civil War over and Reconstruction under way, the Commonwealth of Virginia sued the State of West Virginia in the United States Supreme Court, seeking the return of Berkeley and Jefferson Counties to Virginia. For five contentious years, the case languished before a deadlocked Supreme Court, with a final decision denying Virginia’s claims issued in March 1871. In the end, the Supreme Court avoided the question of whether West Virginia’s creation complied with the requirements of the Constitution.

Notice how wickedly and cunningly the serpent tempted Eve: “God knows well that the moment you eat of it your eyes will be opened and you will be like gods who know what is good and what is evil.” The basic sin, the original sin, is precisely this self-deification, this apotheosizing of the will. Lest you think all of this is just abstract theological musing, remember the 1992 Supreme Court decision in the matter of Casey v. Planned Parenthood. Writing for the majority in that case, Justice Kennedy opined that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, of the mystery of human life.” Frankly, I can’t imagine a more perfect description of what it means to grasp at the tree of the knowledge of good and evil. If Justice Kennedy is right, individual freedom completely trumps objective value and becomes the indisputable criterion of right and wrong. And if the book of Genesis is right, such a move is the elemental dysfunction, the primordial mistake, the original calamity. Of

The problem of abortion in America was never just the law,” Sobelsohn would write in a book review for the Journal of Sex Research. “Overturning criminal abortion laws couldn’t solve the problem any more than did the enactment of those laws in the first place—no more than repealing Prohibition ended the Mafia, or the enactment of Prohibition did away with alcoholism. No, the source of the problem always lies elsewhere, in the hearts and minds of human beings. Changing hearts and minds takes more than a decision of the U.S. Supreme Court.

The Court usually begins to issue opinions in November and proceeds to hand down opinions throughout the term. But naturally, the least controversial cases, those that produce unanimous or near-unanimous decisions, get decided first. Complicated cases or those that, for one reason or another, produce numerous concurring and dissenting opinions take longer, perhaps much longer, and only the pressure of an impending July 4 weekend may spur the justices to make the last-minute compromises necessary to bring a decision out by the end of June.

These decisions sparked a strong negative response from conservatives in Congress. In 2004, after the Atkins and Lawrence rulings, the chairman of the House Judiciary Committee, F. James Sensenbrenner, a Republican from Wisconsin, addressed the members of the Judicial Conference, gathered for their spring meeting at the Supreme Court. “Inappropriate judicial adherence to foreign laws or legal tribunals threatens American sovereignty, unsettles the separation of powers carefully crafted by our Founders, and threatens to undermine the legitimacy of the American judicial process,

The political reaction against Roe v. Wade built slowly. The first justice to join the Court after the January 1973 decision was John Paul Stevens, named by President Gerald Ford in December 1975. Yet remarkably enough, the nominee was not asked a single question about abortion during his confirmation hearing. If the senators’ questions during a Supreme Court confirmation hearing provide a reliable window onto the country’s law-related concerns, then it is reasonable to conclude that abortion had not yet become a national political issue nearly three years after the Court’s decision.

The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.

For a recent citation of John Marshall’s famous line about the Court’s “province and duty” to “say what the law is,” see the Supreme Court’s 2008 decision in Boumediene v. Bush, invalidating an act of Congress that stripped the federal courts of jurisdiction to hear cases brought by detainees at Guantanamo Bay. Writing for the majority, Justice Kennedy said that “[t]o hold the political branches have the power to switch the Constitution on or off at will… would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say ‘what the law is’” [citing Marbury].

The Supreme Court upheld the law in the 2012 decision of National Federation of Independent Business v. Sebelius, but not because it believed the Congress had the power to force people to buy insurance under the Commerce Clause or the Necessary and Proper Clause. Congress, the 5–4 majority decided, had the power to mandate that people buy health insurance because the fine for failing to do so could be regarded as a tax. This particular argument was buried in the legal defense of the law and was only teased out in the final day of arguments by the Court itself. This proves that the Court cannot be trusted to block unconstitutional legislation.

In times of crisis you either deepen democracy, or you go to the other extreme and become totalitarian. Our struggles for democracy have taught us some important and valuable lessons. Over a million citizen activists of all ethnic groups, mostly young people, made history by going door to door, urging voters to go to the polls and send Barack Obama to the White House in 2008. We did this because we believed and hoped that this charismatic black man could bring about the transformational changes we urgently need at this time on the clock of the world, when the U.S. empire is unraveling and the American pursuit of unlimited economic growth has reached its social and ecological limits. We have since witnessed the election of our first black president stir increasingly dangerous counterrevolutionary resentments in a white middle class uncertain of its future in a country that is losing two wars and eliminating well-paying union jobs. We have watched our elected officials in DC bail out the banks while wheeling and dealing with insurance company lobbyists to deliver a contorted version of health care reform. We have been stunned by the audacity of the Supreme Court as it reaffirmed the premise that corporations are persons and validated corporate financing of elections in its Citizens United decision.

When we look back on what happened in Ferguson, Missouri, during the summer of 2014, it will be easy to think of it as yet one more episode of black rage ignited by yet another police killing of an unarmed African American male. But that has it precisely backward. What we've actually seen is the latest outbreak of white rage. Sure, it is cloaked in the niceties of law and order, but it is rage nonetheless. Protests and looting naturally capture attention. But the real rage smolders in meetings where officials redraw precincts to dilute African American voting strength or seek to slash the government payrolls that have long served as sources of black employment. It goes virtually unnoticed, however, because white rage doesn't have to take to the streets and face rubber bullets to be heard. Instead, white rage carries an aura of respectability and has access to the courts, police, legislatures, and governors, who cast its efforts as noble, though they are actually driven by the most ignoble motivations. White rage recurs in American history. It exploded after the Civil War, erupted again to undermine the Supreme Court's Brown v. Board of Education decision, and took on its latest incarnation with Barack Obama's ascent to the White House. For every action of African American advancements, there's a reaction, a backlash.

This issue was joined in a dispute over protection for the free exercise of religion that first divided the justices and then became the source of conflict between the Court and Congress. In a 1990 decision, the Court had withheld protection from individuals who claimed that their religious beliefs required an exemption from a generally applicable law. In that case, Employment Division, Department of Human Resources of Oregon v. Smith, the Court ruled that American Indians who used the hallucinogenic drug peyote in religious rituals were not constitutionally entitled to unemployment benefits when they were fired for violating their employer’s rule against drug use.

How are we going to bring about these transformations? Politics as usual—debate and argument, even voting—are no longer sufficient. Our system of representative democracy, created by a great revolution, must now itself become the target of revolutionary change. For too many years counting, vast numbers of people stopped going to the polls, either because they did not care what happened to the country or the world or because they did not believe that voting would make a difference on the profound and interconnected issues that really matter. Now, with a surge of new political interest having give rise to the Obama presidency, we need to inject new meaning into the concept of the “will of the people.” The will of too many Americans has been to pursue private happiness and take as little responsibility as possible for governing our country. As a result, we have left the job of governing to our elected representatives, even though we know that they serve corporate interests and therefore make decisions that threaten our biosphere and widen the gulf between the rich and poor both in our country and throughout the world. In other words, even though it is readily apparent that our lifestyle choices and the decisions of our representatives are increasing social injustice and endangering our planet, too many of us have wanted to continue going our merry and not-so-merry ways, periodically voting politicians in and out of office but leaving the responsibility for policy decisions to them. Our will has been to act like consumers, not like responsible citizens. Historians may one day look back at the 2000 election, marked by the Supreme Court’s decision to award the presidency to George W. Bush, as a decisive turning point in the death of representative democracy in the United States. National Public Radio analyst Daniel Schorr called it “a junta.” Jack Lessenberry, columnist for the MetroTimes in Detroit, called it “a right-wing judicial coup.” Although more restrained, the language of dissenting justices Breyer, Ginsberg, Souter, and Stevens was equally clear. They said that there was no legal or moral justification for deciding the presidency in this way.3 That’s why Al Gore didn’t speak for me in his concession speech. You don’t just “strongly disagree” with a right-wing coup or a junta. You expose it as illegal, immoral, and illegitimate, and you start building a movement to challenge and change the system that created it. The crisis brought on by the fraud of 2000 and aggravated by the Bush administration’s constant and callous disregard for the Constitution exposed so many defects that we now have an unprecedented opportunity not only to improve voting procedures but to turn U.S. democracy into “government of the people, by the people, and for the people” instead of government of, by, and for corporate power.

The real catalyst for the Religious Right was a court decision, but it was not Roe v. Wade. It was a lower court ruling in the District Court for the District of Columbia in a case called Green v. Connally. On June 30, 1971, the court ruled that any organization that engaged in racial segregation or racial discrimination was not by definition a charitable institution, and therefore it had no claims on tax-exempt status. The Supreme Court’s Coit v. Green decision upheld the district court, and the Internal Revenue Service then began making inquiries about the racial policies of so-called segregation academies as well as the fundamentalist school Bob Jones University, in Greenville, South Carolina, which boasted a long history of racial exclusion.

The Thirteenth Amendment to the U.S. Constitution had abolished slavery but allowed one major exception: slavery remained appropriate as punishment for a crime. In a landmark decision by the Virginia Supreme Court, Ruffin v. Commonwealth, issued at the height of Southern Redemption, the court put to rest any notion that convicts were legally distinguishable from slaves: For a time, during his service in the penitentiary, he is in a state of penal servitude to the State. He has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being a slave of the State. He is civiliter mortus; and his estate, if he has any, is administered like that of a dead man.19

States. It was not easy for Chinese to get into the country. In 1882 Congress had passed a law suspending the entry of Chinese laborers and “all persons of the Chinese race” except officials, teachers, students, tourists, and merchants, at the same time formally prohibiting the naturalization of Chinese. The 1882 Act was the culmination of decades of anti-Chinese propaganda and discrimination. In 1852 California Governor John Bigler described Chinese immigrants as “contract coolies, avaricious, ignorant of moral obligations, incapable of being assimilated and dangerous to the welfare of the state.” In 1854 the California Supreme Court reversed the conviction of a white man for killing a Chinese miner by invoking Section 14 of the California Criminal Act, which specified that “no Black or mulatto person, or Indian shall be allowed to give evidence in favor of, or against a white man.” In support of the decision Chief Justice Hugh Murray declared that “to let Chinese testify in a court of law would admit them to all the equal rights of citizenship. And then we might see them at the polls, in the jury box, upon the bench, and in our legislative halls.” In 1879 the California State constitution prohibited corporations and municipal works from hiring Chinese and authorized cities to remove Chinese from their boundaries.1 My father never told us how he got around the restrictions of the Exclusion Act, and we knew better than to probe because it was generally understood that the distinction between being here legally and illegally was a shadowy one.

Sifting through thousands of petitions a year in order to select the dozens that will be granted is a daunting task for a nine-member court. In the mid-1970s, with the number of petitions growing rapidly, the justices found a way to lighten the load by organizing their energetic young law clerks into a “cert pool.” Under this arrangement, each petition is reviewed by a single law clerk on behalf all the justices who subscribe to the pool. This clerk writes a memo that summarizes the lower court decision and the arguments for and against review, concluding with a recommendation. The recommendation is only that. Most justices in the pool (all but one or two in recent years) assign one of their own four law clerks to review the pool recommendations from the individual justice’s own perspective.

In 2004 the comedian Bill Cosby was the featured speaker at an NAACP awards ceremony commemorating the fiftieth anniversary of the Supreme Court’s landmark Brown v. Board of Education decision. Cosby used the occasion to offer a stinging critique of contemporary black culture. He said that blacks today are squandering the gains of the civil rights movement, and white racism is not to blame. “We, as black folks, have to do a better job,” he stated. “We have to start holding each other to a higher standard.” Today in our cities, he said, we have 50 percent [school] dropout [rates] in our neighborhoods. We have . . . men in prison. No longer is a person embarrassed because [she is] pregnant without a husband. No longer is a boy considered an embarrassment if he tries to run away from being the father.

After that preacher told me to quit thinking, I began thinking harder. I did my research. Turns out, the memo he was trying to pass me—“A good Christian bases her faith on disapproving of gays and abortion”—started being issued only forty years ago. In the 1970s, a few rich, powerful, white, (outwardly) straight men got worried about losing their right to continue racially segregating their private Christian schools and maintaining their tax-exempt status. Those men began to feel their money and power being threatened by the civil rights movement. In order to regain control, they needed to identify an issue that would be emotional and galvanizing enough to unite and politically activate their evangelical followers for the first time. They decided to focus on abortion. Before then—a full six years after the Roe v. Wade Supreme Court decision—the prevailing evangelical position was that life began with the baby’s first breath, at birth. Most evangelical leaders had been indifferent to the Court’s decision in Roe, and some were cited as supporting the ruling. Not anymore. They wrote a new memo using freshly feigned outrage and rhetoric calling for “a holy war…to lead the nation back to the moral stance that made America great.” They sponsored a meeting of 15,000 pastors—called The Religious Roundtable—to train pastors on how to convince their congregations to vote for antichoice, antigay candidates. This is how they disseminated the memo down to evangelical ministers, who passed it down to pews across America. The memo read, To be aligned with Jesus, to have family values, to be moral, one must be against abortion and gay people and vote for the candidate that is antiabortion and antigay.

Hitler and Mussolini were indeed authoritarians, but it doesn’t follow that authoritarianism equals fascism or Nazism. Lenin and Stalin were authoritarian, but neither was a fascist. Many dictators—Franco in Spain, Pinochet in Chile, Perón in Argentina, Amin in Uganda—were authoritarian without being fascists or Nazis. Trump admittedly has a bossy style that he gets from, well, being a boss. He has been a corporate boss all his life, and he also played a boss on TV. Republicans elected Trump because they needed a tough guy to take on Hillary; previously they tried bland, harmless candidates like Romney, and look where that got them. That being said, Trump has done nothing to subvert the democratic process. While progressives continue to allege a plot between Trump and the Russians to rig the election, the only evidence for actual rigging comes from the Democratic National Committee’s attempt to rig the 2016 primary in favor of Hillary over Bernie. This rigging evoked virtually no dissent from Democratic officials or from the media, suggesting the support, or at least acquiescence, of the whole progressive movement and most of the party itself. Trump fired his FBI director, provoking dark ruminations in the Washington Post about Trump’s “respect for the rule of law,” yet Trump’s action was entirely lawful.18 He has criticized judges, sometimes in derisive terms, but contrary to Timothy Snyder there is nothing undemocratic about this. Lincoln blasted Justice Taney over the Dred Scott decision, and FDR was virtually apoplectic when the Supreme Court blocked his New Deal initiatives. Criticizing the media isn’t undemocratic either. The First Amendment isn’t just a press prerogative; the president too has the right to free speech.

Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons. These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments.

Many people take this as evidence of duplicity or cynicism. But they don’t know what it’s like to be expected to make comments, almost every working day, on things of which they have little or no reliable knowledge or about which they just don’t care. They don’t appreciate the sheer number of things on which a politician is expected to have a position. Issues on which the governor had no strong opinions, events over which he had no control, situations on which it served no useful purpose for him to comment—all required some kind of remark from our office. On a typical day Aaron might be asked to comment on the indictment of a local school board chairman, the ongoing drought in the Upstate, a dispute between a power company and the state’s environmental regulatory agency, and a study concluding that some supposedly crucial state agency had been underfunded for a decade. Then there were the things the governor actually cared about: a senate committee’s passage of a bill on land use, a decision by the state supreme court on legislation applying to only one county, a public university’s decision to raise tuition by 12 percent. Commenting on that many things is unnatural, and sometimes it was impossible to sound sincere. There was no way around it, though. Journalists would ask our office about anything having remotely to do with the governor’s sphere of authority, and you could give only so many minimalist responses before you began to sound disengaged or ignorant or dishonest. And the necessity of having to manufacture so many views on so many subjects, day after day, fosters a sense that you don’t have to believe your own words. You get comfortable with insincerity. It affected all of us, not just the boss. Sometimes I felt no more attachment to the words I was writing than a dog has to its vomit.

In fact, only six days later, with Chief Justice Marshall not participating, the Court avoided a possible constitutional confrontation. Voting 5–0 in Stuart v. Laird (1803), the justices upheld Congress’s repeal of the Judiciary Act of 1801, a move some historians see as reflecting the Court’s unwillingness to test the full dimensions of the power it had just claimed for itself. More than half a century would pass before the Supreme Court again declared an act of Congress unconstitutional. That was the Dred Scott decision of 1857 (Scott v. Sandford), invalidating the Missouri Compromise and holding that Congress lacked authority to abolish slavery in the territories. That notorious decision, a step on the road to the Civil War, was perhaps not the best advertisement for judicial review. But since then, the Court has lost its early reticence. It has declared acts of Congress unconstitutional more than 150 times.

As I hope this list of “integration concerns” illustrates, not every identity threat comes from prejudiced people. Think about O’Connor on the Supreme Court before Ginsburg. Many of the contingencies she dealt with had little to do with prejudice among her fellow justices or her staff. Some of them may have been prejudiced, but her problems went beyond that: a Court that was dominated by male sensibilities and referents and that was less sensitive, in its functioning, to the perspectives of women; no critical mass of women with which to give her a sense of belonging on the Court; negative stereotypes about women in the larger society and in the legal world that were available for use in judging her work; the fact that her being the only woman on the Court made her the sole representative of her sex in each Court decision; and so on. O’Connor would have had to deal with these things even if there hadn’t been an iota of sexism in any of the people she worked with.

We've known for a long time that this day would come. Today, an illegitimate Supreme Court-- stacked with justices who have been credibly accused of sexual harassment and assault, installed by presidents who took power via undemocratic sleights of hand-- ratified their cause of eroding the 14th amendment and the right to bodily autonomy. The decision to overturn Roe v. Wade will be lethal to Americans - particularly, Black women and queer people - who now will lose their already limited access to abortions. If establishment Democrats sit back and allow this Court to continue to dismantle every right protecting marginalized people, this decision won't just cost lives - it also will cost us our democracy. Our leaders in Washington must recognize how the tyranny of the minority, white supremacy, misogyny and bigotry brought us to this dark day. And they must act now to protect voting rights and enshrine the right to an abortion into federal law -- before it's too late.

Progressives today are quick to fault “America” for slavery and a host of other outrages. America did this, America did that. As we will see in this book, America didn’t do those things, the Democrats did. So the Democrats have cleverly foisted their sins on America, and then presented themselves as the messiahs offering redemption for those sins. It’s crazy, but it’s also ingenious. We have to give them credit for ingenuity. The second whitewash is to portray the Civil War entirely in terms of the North versus the South. The North is supposedly the anti-slavery side and the South is the pro-slavery side. A recent example is Ta-Nehisi Coates’s article about the Confederate battle flag in The Atlantic.3 Now of course there is an element of truth in this, in that the Civil War was fought between northern states and southern states. But this neat and convenient division ignores several important details. First, the defenders of the Confederate cause were, almost without exception, Democrats. Coates cites many malefactors from Senator Jefferson Davis to Senator James Henry Hammond to Georgia Governor Joseph Brown. Yet while identifying these men as southerners and Confederates, Coates omits to identify them as Democrats. Second, Coates and other progressives conveniently ignore the fact that northern Democrats were also protectors of slavery. We will see in this chapter how Stephen Douglas and other northern Democrats fought to protect slavery in the South and in the new territories. Moreover, the southerners who fought for the Confederacy cannot be said to have fought merely to protect slavery on their plantations. Indeed, fewer than one-third of white families in the South on the eve of the Civil War had slaves. Thus the rigid North-South interpretation of the Civil War conceals—and is intended to conceal—the active complicity of Democrats across the country to save, protect, and even extend the “peculiar institution.” As the Charleston Mercury editorialized during the secession debate, the duty of the South was to “rally under the banner of the Democratic Party which has recognized and supported . . . the rights of the South.”4 The real divide was between the Democratic Party as the upholder of slavery and the Republican Party as the adversary of slavery. All the figures who upheld and defended American slavery—Senators John C. Calhoun and Stephen Douglas, President James Buchanan, Supreme Court Chief Justice Roger Taney, architect of the Dred Scott decision, and the main leaders of the Confederacy—were Democrats. All the heroes of black emancipation—from the black abolitionists Sojourner Truth and Frederick Douglass, to the woman who organized the Underground Railroad, Harriet Tubman, to the leader whose actions finally destroyed American slavery, Abraham Lincoln—were Republicans. It is of the utmost importance to progressive propagandists to conceal or at least ignore this essential historical truth.

Theo, she say without lookin up, her voice low. Do you know who Dred Scott is? Shake my head. Dred Scott was a slave. Is a slave. Dred Scott’s master was a U.S. Army surgeon who took him along to various military assignments—fort in Illinois: free state; fort in Wisconsin: free territory. Mr. Scott was in free Wisconsin four years, wedding a wife and having a daughter, hiring himself out during long periods when the master was away. The master returned and took Mr. Scott and his family to slave states, then the master died. Mr. Scott and his wife had scrimped and saved to purchase their family’s freedom, and requested this of the physician’s widow, who refused. Mr. Scott took them to court, basing his claim on the family’s previous residences on free soil, and won. He won! But the fiend mistress appealed to the Missouri Supreme Court which, two years after Mr. Scott and family had gained their freedom, overturned the ruling, placing them back in slavery. Another trial, this time regarding the physical abuse Mr. Scott had endured. Another unjust outcome. So, the U.S. Supreme Court. The decision came yesterday.

In the U.S. Articles of Confederation, the federal government gave itself the exclusive right to regulate “the trade and managing all affairs with the Indians.” This power was repeated in the 1790 Trade and Intercourse Act, which further refined “trade” and “affairs” to include the purchase and sale of Indian land. The intent of these two pieces of legislation was clear. Whatever powers states were to have, those powers did not extend to Native peoples. Beginning in 1823, there would be three U.S. Supreme Court decisions—Johnson v. McIntosh, Cherokee v. Georgia, Worcester v. Georgia—that would confirm the powers that the U.S. government had unilaterally taken upon itself and spell out the legal arrangement that tribes were to be allowed. 1823. Johnson v. McIntosh. The court decided that private citizens could not purchase land directly from Indians. Since all land in the boundaries of America belonged to the federal government by right of discovery, Native people could sell their land only to the U.S. government. Indians had the right of occupancy, but they did not hold legal title to their lands. 1831. Cherokee v. Georgia. The State of Georgia attempted to extend state laws to the Cherokee nation. The Cherokee argued that they were a foreign nation and therefore not subject to the laws of Georgia. The court held that Indian tribes were not sovereign, independent nations but domestic, dependent nations. 1832. Worcester v. Georgia. This case was a follow-up to Cherokee v. Georgia. Having determined that the Cherokee were a domestic, dependent nation, the court settled the matter of jurisdiction, ruling that the responsibility to regulate relations with Native nations was the exclusive prerogative of Congress and the federal government. These three cases unilaterally redefined relationships between Whites and Indians in America. Native nations were no longer sovereign nations. Indians were reduced to the status of children and declared wards of the state. And with these decisions, all Indian land within America now belonged to the federal government. While these rulings had legal standing only in the United States, Canada would formalize an identical relationship with Native people a little later in 1876 with the passage of the Indian Act. Now it was official. Indians in all of North America were property.

Pedigree was the centerpiece of Supreme Court chief justice Roger B. Taney’s majority opinion in the Dred Scott decision (1857). Though this case assessed whether a slave taken into a free state or federal territory should be set free, its conclusions were far more expansive. Addressing slavery in the territories, the proslavery Marylander dismissed Jefferson’s prohibition of slavery in the Northwest Ordinance as having no constitutional standing. He constructed his own version of the original social contract at the time of the Revolution, the Declaration of Independence, and the Constitutional Convention: only the free white children of the founding generation were heirs to the original agreement; only pedigree could determine who inherited American citizenship and whose racial lineage warranted entitlement and the designation “freeman.” Taney’s opinion mattered because it literally made pedigree into a constitutional principle. In this controversial decision, Taney demonstrably rejected any notion of democracy and based the right of citizenship on bloodlines and racial stock. The chief justice ruled that the founders’ original intent was to classify members of society in terms of recognizable breeds.

Last Sunday, our dear pastor informed the congregation that the peril for our community is far greater than homelessness. It’s these horrid voting requirements for colored men, only colored men. If a negro must prove his residency for three years at a freehold estate worth at least $250, how many black voters would we have left after the destruction of Seneca Village? One might say it matters little; as it stands the numbers are deplorable, merely 91 of 13,000 negro New Yorkers having the franchise. But we must start somewhere, and an appropriation of our village by the authorities would subtract 10 from that already pitiable colored voter roll. Ambrose, you voted for Senator Frémont of California, the first Republican on the presidential ticket! It may be your last chance to ever cast your ballot against slavery. Speaking of which—that defender of the curséd Fugitive Slave Act Buchanan was sworn in Wednesday! And now the Supreme Court has at long last handed down a decision for poor Mr. Dred Scott, the ramifications much worse than we had imagined. All in all, I would have to say this has been a very bad week for black folks. I can find hope only in the prospect that such severe reactionary measures may very well be evidence of the Court’s own sense of threat—that times are changing. I

When the battle resumed in 1995, the Court’s target was an obscure federal statute that barred possession of guns near school buildings. Since every state had a similar law, the fate of the federal law, the Gun-Free School Zones Act, was of little moment. Nonetheless, the decision invalidating the statute, United States v. Lopez, ushered in the Rehnquist Court’s federalism revolution. Writing for the majority, Chief Justice Rehnquist said that to uphold the statute would be to blur the “distinction between what is truly national and what is truly local.” This analysis implied an end to the long period during which the Court permitted Congress to decide for itself whether the distinction between national and local mattered for any particular piece of legislation. The vote was 5 to 4, with the dissenters quick to point out the implications. Justice Souter warned that “it seems fair to ask whether the step taken by the Court today does anything but portend a return to the untenable jurisprudence from which the Court extricated itself almost sixty years ago.” There followed, in quick succession, a series of closely divided decisions that constricted congressional authority not only under the Commerce Clause but also under the Fourteenth Amendment. Section 5 of the Fourteenth Amendment gives Congress “the power to enforce, by appropriate legislation, the provisions of this article”—namely, the guarantees of due process and equal protection provided by the amendment’s Section 1.

According to Bartholomew, an important goal of St. Louis zoning was to prevent movement into 'finer residential districts . . . by colored people.' He noted that without a previous zoning law, such neighborhoods have become run-down, 'where values have depreciated, homes are either vacant or occupied by color people.' The survey Bartholomew supervised before drafting the zoning ordinance listed the race of each building's occupants. Bartholomew attempted to estimate where African Americans might encroach so the commission could respond with restrictions to control their spread. The St. Louis zoning ordinance was eventually adopted in 1919, two years after the Supreme Court's Buchanan ruling banned racial assignments; with no reference to race, the ordinance pretended to be in compliance. Guided by Bartholomew's survey, it designated land for future industrial development if it was in or adjacent to neighborhoods with substantial African American populations. Once such rules were in force, plan commission meetings were consumed with requests for variances. Race was frequently a factor. For example, on meeting in 1919 debated a proposal to reclassify a single-family property from first-residential to commercial because the area to the south had been 'invaded by negroes.' Bartholomew persuaded the commission members to deny the variance because, he said, keeping the first-residential designation would preserve homes in the area as unaffordable to African Americans and thus stop the encroachment. On other occasions, the commission changed an area's zoning from residential to industrial if African American families had begun to move into it. In 1927, violating its normal policy, the commission authorized a park and playground in an industrial, not residential, area in hopes that this would draw African American families to seek housing nearby. Similar decision making continued through the middle of the twentieth century. In a 1942 meeting, commissioners explained they were zoning an area in a commercial strip as multifamily because it could then 'develop into a favorable dwelling district for Colored people. In 1948, commissioners explained they were designating a U-shaped industrial zone to create a buffer between African Americans inside the U and whites outside. In addition to promoting segregation, zoning decisions contributed to degrading St. Louis's African American neighborhoods into slums. Not only were these neighborhoods zoned to permit industry, even polluting industry, but the plan commission permitted taverns, liquor stores, nightclubs, and houses of prostitution to open in African American neighborhoods but prohibited these as zoning violations in neighborhoods where whites lived. Residences in single-family districts could not legally be subdivided, but those in industrial districts could be, and with African Americans restricted from all but a few neighborhoods, rooming houses sprang up to accommodate the overcrowded population. Later in the twentieth century, when the Federal Housing Administration (FHA) developed the insure amortized mortgage as a way to promote homeownership nationwide, these zoning practices rendered African Americans ineligible for such mortgages because banks and the FHA considered the existence of nearby rooming houses, commercial development, or industry to create risk to the property value of single-family areas. Without such mortgages, the effective cost of African American housing was greater than that of similar housing in white neighborhoods, leaving owners with fewer resources for upkeep. African American homes were then more likely to deteriorate, reinforcing their neighborhoods' slum conditions.

The liberal element of Whites are those who have perfected the art of selling themselves to the Negro as a friend of the Negro, getting the sympathy of the Negro, getting the allegiance of the Negro, getting the mind of the Negro, and then the Negro sides with the White liberal and the White liberal uses the Negro against the White conservative so that anything that the Negro does is never for his own good, never for his own advancement, never for his own progress, he’s only a pawn in the hands of the White liberal. The worst enemy the Negro has is this White man who runs around here drooling at the mouth professing to love Negroes and calling himself a liberal and it is following these White liberals that has perpetuated the problems that Negroes in America have. If the Negro wasn’t taken, trapped, tricked, deceived by the White liberal then Negroes would get together and solve our own problems. It was the White liberals that come up with the Civil War, supposedly they say, to solve the Negro, the slave question. Lincoln was supposedly a White liberal. When you read the true history of Lincoln, he wasn’t trying to free any slaves, he was trying to save the union. He was trying to save his own party. He was trying to conserve his own power and it was only after he found he couldn’t do it without freeing the slaves that he came up with the Emancipation Proclamation. So, right there you have deceit of White liberals making Negroes think that the Civil War was fought to free them, you have the deceit of White liberals making Negroes think that the Emancipation Proclamation actually freed the Negroes and then when the Negroes got the Civil War and found out they weren’t free, got the Emancipation Proclamation and they found out they still weren’t free, they begin to get dissatisfied and unrest, they come up with the...the same White liberal came up with the 14th Amendment supposedly to solve the problem. This came about, the problem still wasn’t solved, ‘cause to the White liberal it’s only a political trick. Civil War, political trick, Emancipation Proclamation, political trick, 14th Amendment to this raggedy Constitution, a political trick. Then when Negroes begin to develop intellectually again, and realize that their problem still wasn’t solved, and unrest began to increase, the Supreme Court...another so-called political trick...came up with what they call a Supreme Court Desegregation Decision, and they purposely put it in a language...now you know, sir, that these men on the Supreme Court are masters of the King’s English, masters of legal phraseology, and if they wanted a decision that no one could get around, they would have given one but they gave their Supreme Court Desegregation Decision in 1954 purposely in a language, phraseology that enabled all of the crooks in this country to find loopholes in it that would keep them from having to enforce the Supreme Court Desegregation Decision. So that even after the decision was handed down, our problem has still not been solved. And I only cite these things to show you that in America, the history of the White liberal has been nothing but a series of trickery designed to make Negroes think that the White liberals was going to solve our problem and it is only now that the honorable Elijah Muhammad has come on the scene and is beginning to teach the Black man that our problem will never be solved by the White man that the only way our problem will be solved is when the Black man wakes up, cleans himself up, stands on his own feet, stops begging the White man and takes immediate steps to try and do for ourselves the things that we’ve been waiting for the White man to do for us. Once we do them for ourselves, once we think for ourselves, once we see for ourselves then we’ll be able to solve our own problems and we’ll be recognized as human beings all over this earth.

One more thing, gentlemen, before I quit. Thomas Jefferson once said that all men are created equal, a phrase that the Yankees and the distaff side of the Executive branch in Washington are fond of hurling at us. There is a tendency in this year of grace, 1935, for certain people to use this phrase of context, to satisfy all conditions. The most ridiculous example I can think of is that people who run public education promote the stupid and idle along with the industrious—because all men are created equal, educators will gravely tell you, the children left behind suffer terrible feelings of inferiority. We know all men are not created equal in the sense some people would have us believe—some people are smarter than others, some people have more opportunity because they’re born with it, some men make more money than others, some ladies make better cake than others—some people are born gifted beyond the normal scope of men. But there is one way in this country which all men are created equal—there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man equal of an Einstein, and an ignorant man equal of any college president. That institution, gentlemen, is a court. It can be the Supreme Court of the United States or the humblest J.P. court in the land, or this honourable court which you serve. Our courts have their faults, as does any human constitution, but in this country our courts are the great levellers, and in our courts all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and in the jury system—that is no ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up. I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family. In the name of God, do your duty.

questioning the lawfulness of a long-standing State Department policy specifying that the birthplace of an American citizen born in Jerusalem be given as “Jerusalem” rather than “Israel or Jordan” in his passport.43 The courts were asked to review this policy in light of a congressional statute requiring the State Department to describe the birthplace as “Israel” if the citizen so wished. Did the statute unconstitutionally interfere with the President’s power to conduct foreign affairs?44 The lower courts had decided that the case presented an unreviewable political question.45 But the Supreme Court held to the contrary. All the justices but one (and I was the one) considered the matter of deciding what the statute meant and whether it was constitutional to be “a familiar judicial exercise.”46 My colleagues believed the courts should not avoid the question by invoking the “political question” doctrine.47 They consequently sent the case back to the lower court for a decision on the merits.48 Though alone, I saw the case differently. “In the Middle East,” I wrote, “administrative matters can have implications that extend far beyond the purely administrative.”49 The secretary of state had argued that requiring her to stamp the word Israel on a passport would represent an “official decision by the United States to begin to treat Jerusalem as a city” under Israeli sovereignty.50 She maintained that upholding the statute would have significant foreign policy implications (a conclusion that others denied). Because of our inability to know the answer to this kind of dispute, I concluded that the merits of the case raised a political question, which the other two branches should resolve between themselves.51 What matters for our purposes, however, is that the other members of the Court disagreed with me. They thought that, even there, the doctrine did not prevent the Court from reviewing the merits of this foreign policy-related question. The upshot is that neither the classical view of Cicero nor the “political question” doctrine prevents today’s Court from reaching, and deciding the merits of, many questions in which security and civil liberties collide. But there are other doctrines, embodied in other cases, that have had much the same effect.

Yet in 2012, he returned. Plenty of the speechwriters were livid. The club was the embodiment of everything we had promised to change. Was it really necessary to flatter these people, just because they were powerful and rich? In a word, yes. In fact, thanks to the Supreme Court, the rich were more powerful than ever. In 2010, the court’s five conservative justices gutted America’s campaign finance laws in the decision known as Citizens United. With no more limits to the number of attack ads they could purchase, campaigns had become another hobby for the ultrawealthy. Tired of breeding racehorses or bidding on rare wines at auction? Buy a candidate instead! I should make it clear that no one explicitly laid out a strategy regarding the dinner. I never asked point-blank if we hoped to charm billionaires into spending their billions on something other than Mitt Romney’s campaign. That said, I knew it couldn’t hurt. Hoping to mollify the one-percenters in the audience, I kept the script embarrassingly tame. I’ve got about forty-five more minutes on the State of the Union that I’d like to deliver tonight. I am eager to work with members of Congress to be entertaining tonight. But if Congress is unwilling to cooperate, I will be funny without them. Even for a politician, this was weak. But it apparently struck the right tone. POTUS barely edited the speech. A few days later, as a reward for a job well done, Favs invited me to tag along to a speechwriting-team meeting with the president. I had not set foot in the Oval Office since my performance of the Golden Girls theme song. On that occasion, President Obama remained behind his desk. For larger gatherings like this one, however, he crossed the room to a brown leather armchair, and the rest of us filled the two beige sofas on either side. Between the sofas was a coffee table. On the coffee table sat a bowl, which under George W. Bush had contained candy but under Obama was full of apples instead. Hence the ultimate Oval Office power move: grab an apple at the end of a meeting, polish it on your suit, and take a casual chomp on your way out the door. I would have sooner stuck my finger in an electrical socket. Desperate not to call attention to myself, I took the seat farthest away and kept my eyes glued to my laptop. I allowed myself just one indulgence: a quick peek at the Emancipation Proclamation. That’s right, buddy. Look who’s still here. It was only at the very end of the meeting, as we rose from the surprisingly comfy couches, that Favs brought up the Alfalfa dinner. The right-wing radio host Laura Ingraham had been in the audience, and she was struck by the president’s poise. “She was talking about it this morning,” Favs told POTUS. “She said, ‘I don’t know if Mitt Romney can beat him.

Benjamin Franklin wrote little about race, but had a sense of racial loyalty. “[T]he Number of purely white People in the World is proportionably [sic] very small,” he observed. “ . . . I could wish their Numbers were increased.” James Madison, like Jefferson, believed the only solution to the problem of racial friction was to free the slaves and send them away. He proposed that the federal government sell off public lands in order to raise the money to buy the entire slave population and transport it overseas. He favored a Constitutional amendment to establish a colonization society to be run by the President. After two terms in office, Madison served as chief executive of the American Colonization Society, to which he devoted much time and energy. At the inaugural meeting of the society in 1816, Henry Clay described its purpose: to “rid our country of a useless and pernicious, if not dangerous portion of the population.” The following prominent Americans were not merely members but served as officers of the society: Andrew Jackson, Daniel Webster, Stephen Douglas, William Seward, Francis Scott Key, Winfield Scott, and two Chief Justices of the Supreme Court, John Marshall and Roger Taney. All opposed the presence of blacks in the United States and thought expatriation was the only long-term solution. James Monroe was such an ardent champion of colonization that the capital of Liberia is named Monrovia in gratitude for his efforts. As for Roger Taney, as chief justice he wrote in the Dred Scott decision of 1857 what may be the harshest federal government pronouncement on blacks ever written: Negroes were “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 have no rights which a White man is bound to respect.” Abraham Lincoln considered blacks to be—in his words—“a troublesome presence” in the United States. During the Lincoln-Douglas debates he expressed himself unambiguously: “I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will for ever forbid the two races living together on terms of social and political equality.” His opponent, Stephen Douglas, was even more outspoken, and made his position clear in the very first debate: “For one, I am opposed to negro citizenship in any form. I believe that this government was made on the white basis. I believe it was made by white men for the benefit of white men and their posterity forever, and I am in favor of confining the citizenship to white men—men of European birth and European descent, instead of conferring it upon negroes and Indians, and other inferior races.