The Black World Today
May 8, 2001
By Ron Daniels

One of the key issues at stake in the 2000 presidential election was control of the Supreme Court in particular and the federal judiciary in general. Nothing more than the fateful Supreme Court decision in Gore v. Bush, the 5-4 verdict that stopped the counting of the ballots in Florida, demonstrates the power of the courts to crush the aspirations of Africans in America and other oppressed people. Indeed, a number of civil rights leaders compared this fateful verdict to the Dred Scott decision in 1857, which decreed that Black people had no rights that White people were bound to respect.

Though federal courts are theoretically impartial and objective, in reality the judges are human beings who are influenced by their own bias, prejudices, life experiences and the prevailing attitudes within society. Hence, in 1896 the Supreme provided the judicial capstone for the backlash against the gains of the former enslaved Africans during Reconstruction by sanctioning the doctrine of "separate but equal" in Plessy v. Ferguson.

In 1954, however, the Supreme Court ruled that separate but equal was unconstitutional. In a world where the United States was competing with the Soviet Union for the allegiance of the darker skin people of the Third World, the glaring contradiction of racial apartheid could not stand. Indeed, the federal judiciary in the 50's and 60's paced by the Supreme Court under the leadership of Chief Justice Earl Warren played an integral and indispensable role in shattering the walls of segregation and expanding the rights of Blacks and other oppressed people.

Conservatives, the "strict constructionist" protectors of the status quo of White male privilege, were outraged with what they considered the liberal "judicial activism" of the Warren Court. They consistently accused the Court of engaging in "social engineering" because of its decisions on school desegregation, expansion of privacy rights and reproductive rights for women. As the backlash against the gains of the civil rights movement escalated, conservatives resolved that a key element of their strategy for reclaiming America was/is to capture the Supreme Court and the federal judiciary.

Since the election of Ronald Reagan, conservatives have been obsessed with seizing control of the federal courts. There was no more brilliant stroke in this regard than to nurture a Black conservative and appoint him to the Supreme Court in the person of Clarence Thomas. What could be more comforting to Whites disgruntled with the gains of the civil rights movement than a Black face on the Supreme Court providing cover for the machinations of reactionaries. Gradually, under Reagan and Bush, the conservatives made significant inroads towards capturing the courts.

This drive for hegemony was stymied somewhat during the tenure of Bill Clinton who tended to appoint moderate/centrist judges to the bench. The conservatives waged war on Clinton, however, by delaying or denying many of his appointments. Conservatives have demonstrated a willingness to play hardball in advancing a strategic aspect of their agenda for taking power and governing. This is precisely why it was important to them to install George W. Bush as President by any means necessary. And, it was precisely to frustrate the conservatives' drive to control the courts that civil rights/human rights leaders and Black political leadership mobilized feverishly to defeat Bush. The irony should not be lost that it was the Supreme Court, which had the last word in this momentous contest.

Now with Bush safely installed in the White House, the conservatives, led by a little known but powerful right wing legal group called the Federalist Society for Law and Public Policy Studies are preparing for the final assault to capture the judiciary. As University of Chicago Professor Cass R. Sunstein suggested in a recent New York Times Op-Ed article, the goals of the conservatives are clear: "to reduce the powers of government; scale back the rights of those accused of crime; strike down affirmative action programs; and, diminish privacy rights including the right to an abortion."

Recent Supreme Court decisions are suggestive of the debilitating consequences of conservative judicial activism. In the case of Alexander v. Sandoval, the Supreme Court ruled that private citizens do not have the right to enforce civil rights statutes based on a claim of discriminatory effect or disparate impact. Instead, citizens must be able to prove that a particular adverse race, gender or disability effect or impact is based on "intentional" actions on the part of individual or institutional actors. According to Monique Hardin of Earth Justice Legal Defense Fund, "this awful decision blocks civil rights lawsuits that are based on disparate impact or discriminatory effect ... Proving intentional discrimination is very difficult."

The question is, in the face of the conservative quest to capture the courts, what will the Democrats do? Will they play hardball by fighting to block the appointment of conservative ideologues to the federal courts or simply roll over as they did in acquiescing to the Supreme Court decision in Gore v Bush. And, of even greater consequence, what are Africans in America prepared to do to thwart this ominous conservative counter-revolution? -- a counter-revolution which is clearly calculated to reverse the gains of the civil rights movement?

In my view, Black people had better be prepared to fight on all fronts, the halls of Congress, the Court house steps and in the streets to beat back this insidious attempt to turn back the clock on civil rights/human rights progress in this nation.