The State of Civil Rights

Article excerpt

The state of civil rights in America is most precarious.

Civil rights advocates may find themselves in the situation of the person who did not realize that his throat had been cut until he attempted to shake his head. This should come as no surprise to those who have been manning the barricades. The warning signs have been many.

The most ominous warning came from the late Justice Thurgood Marshall in the final dissenting opinion he wrote before retiring from the Supreme Court. Justice Marshall was disturbed at the way the Supreme Court majority had reversed itself in a death penalty case within a period of a few years. The majority had jettisoned the notion of stare decisis, or precedent,-with no reasoned basis for doing so.

Justice Marshall wrote:

Power, not reason, is the new currency of this court's decision making. ...neither the law nor the facts supporting Booth and Gathers underwent any change in the first four years. Only the personnel of this court did.

In dispatching Booth and Gathers to their graves, today's majority ominously suggests that an even more extensible upheaval of this court's precedents may be in store ... [This opinion] sends a clear signal that scores of established constitutional liberties are now ripe for consideration.

One need only look at subsequent decisions of the Supreme Court on civil rights remedies, and in cases that impact on the rights of minorities and the poor, to know that Justice Marshall's warning is coming to pass.

Moreover, events surrounding the 2000 and 2004 presidential and congressional elections, followed by the way in which the federal judicial nominating process has been manipulated, have proven Justice Marshall prescient.

Those who oppose the expansion and enforcement of civil rights have cleverly masked their aims. They do not frontally attack civil rights-to the contrary-they preface their declarations with a reiteration of rhetoric about civil rights and equal opportunity for all. Then, they proceed to attack the means of implementing the remedies that give meaning to civil rights. They fail to concede that a right (which they profess to support) without a remedy is no right at all. Thus, to proclaim a belief in equal opportunity to educators and jobs while attacking affirmative action and enforceable consent decrees, is meaningless.

We know that voting rights are at the core of the people's right of selfdetermination. Hobbling the right to vote has an effect on the election of state and federal officials. When that ability is impaired, the officials who do get elected frequently dismiss or are deaf to the pleas of racial minorities. A recent example of this took place in the cynical way United States Senators turned a deaf ear to the protests raised by black and minority voters over Supreme Court nominees. Sadly, some Senators allowed their political partisanship and electoral cowardice to override their solemn duty. This was a classic instance of non-accountability that cries out for a renewal and expansion of the 1965 Voting Rights Act.

One's fitness to be a U.S. Supreme Court justice transcends what so many focused on during the recent confirmation process-stellar academic achievements and a degree of unquestioned professional competence. While such credentials are relevant, they should be the beginning of the scrutiny, not the end. The critical question is one of values, not competence.

To understand why this is true, consider the most wretched decision the Supreme Court ever handed down on the question of human rights, Dred Scott v. Sanford. The author of that decision, Chief Justice Roger B. Taney, was undoubtedly highly qualified from a technical and professional standpoint, having been appointed by President Andrew Jackson after his service as secretary of Treasury. Yet, when faced with the fundamental question of whether a one-time slave, Dred Scott, had standing to sue to retain his newly-acquired free status, Justice Taney wrote that black people-slaves-were not persons within the contemplation of the framers of the Constitution and were therefore powerless to sue. …