The Gatekeepers

The Supreme Court looms in my consciousness like the entire Western Hemisphere outside of the United States; it is a large and important edifice about which I know next to nothing. But the recent Sonia Sotomayor confirmation hearings got me to thinking, which got me to reading, which got me to being astounded at how powerful the Court really is.

By far the most obscure branch of the federal government, it may actually be the most powerful over the long arc of the nation's affairs, and it is certainly the least democratic. Nine unelected citizens who have the authority to veto the will of the people if they feel that said will conflicts with the Constitution.

Hypothetical: say every single citizen in America wanted thing A. They demanded thing A. They called their congressmen and, in the theoretical tradition of a democratic republic, thing A was articulated into a bill, which is passed by the peoples' representatives into a law, which is signed by the president.

BUT. If the Supreme Court decides that thing A contradicts its interpretation of the Constitution, thing A is thrown out. So theoretically, 300 million of us could want something, all 535 members of Congress could vote for it, the president could sign it, but 5 out of 9 judges sitting on the court could outweigh those 300,000, 540 other people.

There are two ways of looking at this. One could say that this is a profoundly anti-democratic notion. And it is. We could call it an elitist island of tyranny and leave it at that. That would be the pessimistic view of the court.

The optimistic view is worth considering, however. There are two pillars of democracy. One is majority rule. The second, far more difficult to actualize, is the protection of the minority from the tyranny of the majority. In other words, just because the majority wants something in a democracy, that does not mean that they should get it.

To guarantee this second pillar, a Supreme Court is the ideal institution, and in the finest tradition of the Greeks: an unelected, and therefore (theoretically) non-political, body of life-tenured jurists which can act to protect the minority from the passions and prejudices of the majority should they violate the law. But how well has our Supreme Court discharged that role?

The clearest example of the tyranny of the majority is slavery. The majority (whites) democratically decides that the minority (blacks) should have no rights. Here is where the Supreme Court should ideally have stepped in and denied the majority its democratic prerogative because its treatment of the minority violated their rights under the Constitution.

This did not happen, of course. The Supreme Court upheld the legality of holding native-born human beings in bondage. This sacrosanct "precedent" having been set, it took decades and the bloodiest war in American history to overturn this tyranny of the majority, which was only overturned when Confederate states were forced to adhere to Emancipation as the (far too low) price for readmission to the Union.

The Supreme Court then allowed the tyranny of the majority to persist in the form of segregation. Not until 1955 did the court say "we don't care what the majority wants in Mississippi; their wants clearly violate the Constitutional rights of the minority". That took 170 years. Only politicians could have taken longer.

I was also fascinated to learn that the Supreme Court did not overturn its original ruling that the Bill of Rights did not apply to the states until 1925. Let us pause and consider this: For the first 140 years of our Constitution, the Supreme Court held that individual states had the right to pass laws violating the Bill of Rights, because they only applied to the federal government.

So, "Congress shall pass no law abridging the freedom of speech", for example, only applied to the federal government. So, for example, if Alabama wanted to pass a law saying "Negroes may not own printing presses or firearms or land", that was perfectly Constitutional as far as the Supreme Court was concerned. Until well into the 20th century.

So the Supreme Court is very powerful, and it has often let us down, being on the wrong side of history, or at least decades behind it. This leads us to Sonia Sotomayor.

Most of the opposition is centered on the idea that she can not be objective because she is a Latina woman. Let's think about the Dred Scott case, in which 9 white male justices ruled that blacks were property. Were they objective? Did their whiteness have absolutely NO impact on their finding that blacks were not people? To ask is to answer.

The unspoken coda of the argument against Sotomayor is that only the majority (white males) is capable of being objective. Let's imagine that a black person had been nominated to the Court when Dred Scott was on the docket. I have the sneaking suspicion that white Senators would have maintained that a black judge could not possibly be objective in such a case. White judges, of course, are swayed only by the facts.

The depth of white dominance and condescension was clear from the left and the right. All these (white, male) Senators stroking the shaft of the nation's collective narcissism with the ceaselessly repeated trope that "only in America" could Sonia Sotomayor be elevated to such a level. It was repulsive watching these condescending reptiles congratulating themselves for their magnanimity.

And how magnanimous they are. We've had 110 Supreme Court justices in our history, and 106 of them have been white men. We've had 2 black Senators since Reconstruction, and one of them was named Barack Obama.

Indeed, one might say, "Only in America can we congratulate ourselves for inclusion when our Senate is currently 1% black, and that's the highest percentage of black people the Senate has EVER had".

How two thread the two themes of this blog? Well, the Supreme Court is a theoretically salvatory, profoundly non-democratic institution that, unfortunately, has more often than not sanctioned the tyranny of the majority in this nation.

Sonia Sotomayor represents perhaps the only remedy: make the Court look more like the country. To do that, we'd need a few more women. And half of the justices would have to be obese.

For those who think we've already left the dark days when the Supreme Court made terribly short-sighted decisions that flew in the face of the simplest pleas of logic and civic duty, remember Bush v. Gore? Only in America indeed.