On October 2, 1967, Chief Justice Earl Warren swore in Thurgood Marshall as the first black justice on the Supreme Court. Marshall, nominated to the court by President Lyndon Baines Johnson, was a towering figure in the battle for civil rights.
During his 24 years on the high court, Associate Justice Marshall consistently challenged discrimination based on race or sex, opposed the death penalty, and vehemently defended affirmative action. He supported the rights of criminal defendants and defended the right to privacy.
Marshall is one of my heroes. Here’s what I wrote on the anniversary of his Senate confirmation:
Thinking about Thurgood Marshall's impact means also pondering the future of SCOTUS. There's a pressing need for us to ensure that his legacy, and the legacies of other important liberal justices, will not be undone.
Clarence Thomas, his faux “replacement” on the court, was nominated by President George H.W. Bush. Thomas is anathema to anyone who cares about civil liberties, justice, and equality for our citizenry. It is the ultimate irony that Marshall’s replacement in skin color—but not in brain power or integrity—recently authored the majority opinion that would erode yet another constitutional right, continuing the Republican dismantling of the Bill of Rights and our hard-won constitutional protections. I’m talking about “stop and frisk,” which Republican presidential candidate and bigot Donald Trump has been touting loudly (and wrongly), backed by a braying chorus of politicians like Rudy Giuliani and a slew of Fox News babbling heads.
For those of my brethren and sistren who are in the streets and on the front lines in the battle for justice, it is key to understand that any progress we make in our movements and protests has to be cemented by laws, and those laws will be maintained and validated (or erased and gutted) by the highest court in the land. Right now, there are three women on that court. Justices Ginsburg, Sotomayor, and Kagan are holding the fort—under siege—until we can elect a president who will send in backup. We cannot depend on the vagaries of a current “fourth” who joins them in decisions in some instances, and abandons them in others. Daily Kos’ senior political writer Joan McCarter has been documenting the Supreme Court vacancy watch since the death of Justice Antonin Scalia.
Until we can seat a new justice, there will be little or no justice from on high and most assuredly, no peace.
I am not a lawyer or legal scholar. My interest in the law and Supreme Court decisions over the years has been honed by both my activism and the impact of court rulings on the struggles of people of color and women. I realize that many people near and dear to me, including family members, friends, and my students don’t read the actual rulings of the court, or the dissenting opinions. I often find that I have difficulty wading through the legalese, when trying to understand how rulings of the court can and will change my life, and the lives of those I care about. I make the attempt anyway.
Whether it is about Dred Scott, de-facto segregation, the Hyde amendment and the Burger Court, the Bill of Rights, or voting rights, I find myself writing more and more frequently about how justice is either advanced or undermined by SCOTUS. I am also doing more reading.
In case you missed it, Daily Kos contributing editor and attorney Armando Llorens wrote a prescient piece in 2013, titled “The political impact of the Roberts Court.” He wrote this before the demise of Scalia, when the right-wing faction on the court still numbered five:
The direct political impact of the Roberts Five's radical extreme overturning of one of the most admired and effective pieces of legislation in the history of the nation is patent. Already many of the covered jurisdictions are warming up their schemes to suppress minority voting, mostly through onerous voter ID laws.
The question is will the nation, especially minority voters, be "activated" as well. A big part of the question will be determined by how the Democratic Party explains what is at stake. Too often it has failed in this task.
And too often liberal pundits have failed to explain the extreme and radical nature of the project the Roberts Five are engaged in.
One of my sig lines back in the day was "the SCOTUS is extraordinary." Every year we find out again and again how extraordinary it is. Can the extreme and radical nature of the Roberts Five be properly conveyed by the Democratic Party and liberal and progressive commentators? Can the extreme and radical Roberts Five become a significant part of the political conversation? It needs to, not just for the politics but because the country needs to know what these five men are up to. And they must be stopped.
We have only one option open to us if we hope to stop them, and that option is the ballot box. And we can’t depend solely on the election of Hillary Clinton: we also need to wrest back control of the Senate, where new appointments are being blocked.
Justice Sonia Sotomayor’s recent powerful and moving dissent in Utah v. Strieff involving the Fourth Amendment to the Constitution and our fundamental right against illegal search and seizure is a case in point. Justices Ginsburg and Kagan also dissented. What Sotomayor wrote should be required reading for anyone who has an interest in justice.
The entire dissent is printed without the legal citations by Bob Collins at Minnesota Public Radio. I hope that you will read the whole thing. Here’s an excerpt:
The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights.
Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.
Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.
Justice Sotomayor went on to express her opinion, a view informed by her experience as a woman of color who grew up in an area affected directly by these practices. What was even more compelling is that she cited not only case law—she also referenced a broad range of writings from people of color including W.E.B. DuBois, James Baldwin, Ta-Nehesi Coates, and Michelle Alexander.
She chronicles the degrading impact of stop-and-frisk writ large on an entire community.
Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.
Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. That justification must provide specific reasons why the officer suspected you were breaking the law, but it may factor in your ethnicity, , where you live, what you were wearing, and how you behaved. The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous.
The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “ ‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’ ”
The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.
This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).
By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.
We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.
* * *
I dissent.
The power, depth, and breadth of this dissent is stunning.
It’s deeply saddening that people from affected communities, who need to read it the most—to understand why we must not only fill the current vacancy on the court, but be ready to add more Sotomayors when older justices retire—may never hear her words on their/our behalf.
We need another Marshall. We will need another Ginsburg.
I don’t want to hear one more word from hypocrites who purport to be on the left, or progressive, or radical, or revolutionaries, or justice warriors, or anti-racists, or anti-homophobes—and yet stand on the sidelines carping about Democrats and decide to stay home on Election Day. Or maybe they decide to vote for Gary Johnson, who lives in a right-wing fog (and couldn’t name a world leader) cloaked in the purple haze of “libertarianism,” and who stands for a platform that would eliminate public schools and our social safety net. As for Jill Stein, she may claim be “green” but frankly, she can KMBA. It takes a really special privileged snowflake to talk so-called radical shit and then work to undermine the potential to change the political landscape of this nation for generations.
You want change? Change the damn court. That’s how you lock in change. We are a nation of laws and those laws, reinforced by SCOTUS, can decide that corporations are people while people become discorporate (dead) due to a dearth of Justice. Those laws can give us the right to vote—or remove it. The black robed, right-wing denizens of the Roberts Court are carrion crows picking at the flesh of our liberty, and ultimately taking our lives.
You care about the environment? Change the court.
You care about women’s rights? Change the court.
You care about income inequality? Change the court.
You care about criminal justice? Change the court.
You care about gun violence? Change the court.
I may not have included your specific issue or issues here, but you get my drift.
Even the Republicans who loathe Donald Trump are rallying to vote for him because they know that SCOTUS is at stake. The Koch Brothers and others are now dumping huge sums of money into Republican Senate races that are vulnerable in order to maintain a stranglehold on progress.
The future of generations to come is in your hands.
So vote. For Democrats.