May 17, 1954
Lost in all the Palace Intrigue of the last two weeks (regarding Russians, the FBI, etc.) was Monday’s non-ruling by the Supreme Court. The North Carolina Voting Restriction laws, passed by that state’s legislature and challenged by the ACLU, had been struck down by a State Appeals Court. “The law, enacted by the state legislature in 2013, imposed a range of voting restrictions, including the new voter identification requirements. It was part of a wave of voting restrictions enacted after a 5-to-4 Supreme Court decision that effectively struck down a central part of the federal Voting Rights Act, weakening federal oversight of voting rights.” (May 15, 2017 NYTimes) The Justices did not decline to hear the case because they agreed with the Appeals’ Court reversal --- despite the fact that the state had “failed to identify even a single individual who has ever been charged with committing in-person voter fraud in North Carolina.” (Ibid.) No, the Roberts Court ruling had to do with a “technical” dispute that emanated from the state of North Carolina itself. You see, the law was enacted by (shock!) a Republican legislature and Republican Governor (Pat McCrory). In 2016, Democrat Roy Cooper won the Governorship and decided the state would not proceed with its challenge to the Appeals court reversal. The state Assembly took umbrage at that and they filed their own challenge with the Supreme Court. “In his statement on Monday, Chief Justice Roberts said the Supreme Court’s decision to decline to grant the petition seeking review, or petition for certiorari, turned on that dispute” (Ibid.) between the Executive and Legislative branches of the state. So, while a “victory” for voting rights, it is not the ringing endorsement a Supreme Court decision would have been. In light of the Roberts court gutting the Voting Rights Act in 2013, we probably should not be all that hopeful when they hear a case like the North Carolina one in the near future.
The justices are likely to take a more definitive position on voting rights issues when and if they hear one of several cases that appear bound for the court. The most likely candidate is a lawsuit challenging Texas’ 2011 voter identification law. A federal district judge ruled in April that the Texas Legislature had intentionally discriminated against black and Hispanic voters when it enacted the law. (NY Times, May 15, 2017)
My hope is that Neil Gorsuch becomes the Earl Warren of the early 21st century and throws Trump and the Republicans for a loop by acting like a compassionate, rational, and non-ideological Justice.
I bring all this up not only because it is important --- and lost in all the chaos that is the Trump White House --- but because today is the 63rd Anniversary of the Brown v. Board of Education ruling by the Warren Court in 1954, making segregation illegal (finally), 89 years after the Civil War ended. As we continue to wrestle with the national tragedy and disgrace that slavery was, it is important to remember that it was only within the lifetime of this Baby Boomer generation that the United States officially declared “all men are created equal” legally. The scars, wounds, and remnants of enslaving millions of human beings is still with us, of course, and remains a problem we will have to continue to work on solving. Destroying clearly discriminatory laws like North Carolina’s would be within keeping of the Brown decision (unlike the Voting Rights Act 2013 case) and maybe, just maybe, Neil Gorsuch can do what Earl Warren did --- and rise above politics and use “common sense” to make decisions.
Warren, if you don’t know it, had been a three term Republican Governor of California and was that state’s Attorney General responsible for incarcerating Japanese citizens in internment camps during World War II --- something he regretted later in life. Appointed by Republican President Dwight Eisenhower in 1953 as Chief Justice (CJ Fred Vinson had died), Warren joined 8 Justices who had been appointed by Franklin Roosevelt (6) and Harry Truman (2) --- in other words, a strongly New Deal/progressive Court. They, however, were not the ones who moved Warren to become the leader of the most progressive Supreme Court in U.S. history (starting with the Brown case in ’54). As noted in Wikipedia:
Warren was never a legal scholar on a par with Frankfurter or a great advocate of particular doctrines, as was Black. Instead, he believed that in all branches of government common sense, decency, and elemental justice were decisive.
It was Warren who insisted that the Court’s vote on Brown be unanimous and he convinced those members of the court (one from Kentucky and at least two others who believed in judicial restraint) that the only way Brown would have true meaning was if the entire Court was on board. And so, 9-0, the Justices passed down the most important ruling since Marbury v. Madison.
The Brown decision of 1954 marked, in dramatic fashion, the radical shift in the Court's—and the nation's—priorities from issues of property rights to civil liberties. Under Warren the courts became an active partner in governing the nation. Warren never saw the courts as a backward-looking branch of government. (wiki)
While today’s conservatives rail against judicial activism, cases like Citizens United and the Voting Rights curtailment reveal the hypocrisy of their complaints. The Warren Court was highly activist and, as a result, its rulings in Brown v. Board of Education, Baker v. Carr (one man, one vote), Engle v. Vitale (school prayer ban), Gideon V. Wainwright (right to counsel), NY Times v. Sullivan (free speech/libel), Griswold v. Connecticut (privacy/birth control), South Carolina v. Katzenbach (upholding the Voting Rights Act), Miranda v. Arizona (rights of the accused), In Re Gault (due process/ juveniles), Loving v. Virginia (allowing interracial marriage), Tinker v. Des Moines (free speech in public schools), and NY Times v. United States (Pentagon Papers case) shaped our world, guaranteeing civil liberties for U.S. citizens. Given the court’s current composition, it is unlikely we will see this kind of judicial leadership as we head into the next decade but maybe Neil Gorsuch will change that --- stranger things have happened.
So, while we are transfixed by the latest White House chaos, don’t forget to take a moment today to reflect on May 17, 1954 --- a truly historic moment that was a legitimate first step in making America live up to the lofty promises of the Declaration of Independence and Preamble to the Constitution.