Posted January 19, 2006 to Politics | Section Home | Print

The Future of Supreme Court Activism

By Ron Walters

Listening to the debate over the Supreme Court nomination of Judge Samuel Alito, a practical question comes to mind. If the framers of the Constitution could not anticipate the future and if the future of this country served up an agenda of things to be decided beyond their ability to conceptualize the future, then what role does the Supreme Court have in moving the country forward and addressing those unanticipated questions?

It is not enough to say that they should stay within the orbit of the Constitution, or that the issues raised outside of the original concept are merely “political questions,” especially if they are also fundamentally related to the human and civil rights of citizens.

Such an unanticipated question was the overthrow of Plessy v. Ferguson by the Supreme Court responding to the demand for equal education between the races. Yet, I can hear in the whining about
“activists judges,” the clear voice of lament about Brown v. Board of Education, as well as the court’s upholding the constitutionality of the 1964 Civil Rights Act and the 1965 Voting Rights Act.

At the time these decisions were passed, Blacks had experienced half a decade of denial of their rights in the 20th Century and it took a courageous and enlightened court to strike down racism in the system of public education. Key committees in the Congress were led by Southerners, but with this decision behind him, Lyndon Johnson could exercise his presidential power in responding to the Fourteenth Amendment-based demands of the Civil Rights movement.

Think for a moment what would have happened if there were no courageous Warren Court. Blacks may not have been as emboldened, and Johnson may not have had the precedent to make public policy.

The importance of the changes that occurred is that they aligned the United States with not only a response to the demand for equal rights in this country, but to the human rights revolution occurring all over the world. In that context, they were enlightened changes. The Universal Declaration of Human Rights created by the United Nations declared that civil rights were also basic human rights to be enjoyed by all people everywhere. That view was the outcome of the lesson learned in the blood spilled of the Second World War. The credibility of America as a democratic nation was already an issue in the Cold War and rejecting the demand for civil rights would have confirmed the view of America as a racist state.

With the confidence provided by the post war global movement, Johnson responded to the Civil Rights movement with enlightened leadership, proposing public policy that would help to move the country in the direction the world was going. It also enabled him to teach the country that poverty was wrong, that women needed equality and that the bloody revolts occurring in major cities were happening because of the long denial of justice.

So, if conservative politicians are right and the task of the Supreme Court is only to interpret existing law, that would appear to throw the matter of matching an evolving human situation with enlightened policies up to the president and the Congress; in other words, into the realm of pure politics. That is what is happening today. The president and his colleagues in the Congress appear to believe that the rights won by blacks, women, other disadvantaged groups are situational, political issues to be changed and discarded according to the whims of the majority.

At this moment, the potential elevation of Samuel Alito to the Supreme Court would appear to change the fundamental nature of that body, such that it will not be the place to look for enlightened leadership in the future. This conclusion, based on a thorough study of Alito’s record by the Alliance for Justice, revealed his membership in the Concerned Alumni of Princeton, a group that opposed the entrance of women and blacks into the university; and as an appellate court judge, in 86 percent of civil rights decisions he sided against the complainant. In taking these and many other radical positions, he exhibited conservative activism, often going beyond the facts presented in cases to offer his own analysis based on his own evidence in a case.

The addition of Samuel Alito would help to check the power of Congress and elevate that of the executive branch, thus closing off important avenues for legislating enlightened public policy, ironically in bodies where blacks have recently begun to participate in effective numbers. This administration has shown to what extremes civil rights are threatened in its misappropriation of power in the conduct of the war in Iraq.

By continuing to pack the Supreme Court with conservatives, Bush continues to move America toward an unenlightened future. The tragedy is they do not appear to have measured the practical consequences. Most tragic of all, the evidence is that they do not care, but the lack of caring could be disastrous.

Ron Walters is the Distinguished Leadership Scholar, Director of the African American Leadership Institute, Professor of Government and Politics at the University of Maryland College Park. His latest books are: White Nationalism, Black Interests (Wayne State University Press) and Freedom is Not Enough, (Rowman and Littlefield). •