Don’t despair about the Supreme Court

Let us not be disconsolate over the increasing control of the court system by the right wing.

There is enormous hypocrisy surrounding the pious veneration of the Constitution and “the rule of law.” The Constitution, like the Bible, is infinitely flexible and is used to serve the political needs of the moment.

When the country was in economic crisis and turmoil in the ’30s and capitalism needed to be saved from the anger of the poor and hungry and unemployed, the Supreme Court was willing to stretch to infinity the constitutional right of Congress to regulate interstate commerce. It decided that the national government, desperate to regulate farm production, could tell a family farmer what to grow on their tiny piece of land.

When the Constitution gets in the way of a war, it is ignored. When the Supreme Court was faced, during Vietnam, with a suit by soldiers refusing to go, claiming that there had been no declaration of war by Congress, as the Constitution required, the soldiers could not get four Supreme Court justices to agree to even hear the case.

When, during World War I, Congress ignored the First Amendment’s right to free speech by passing legislation to prohibit criticism of the war, the imprisonment of dissenters under this law was upheld unanimously by the Supreme Court, which included two presumably liberal and learned justices: Oliver Wendell Holmes and Louis Brandeis.

It would be naive to depend on the Supreme Court to defend the rights of poor people, women, People of Color, dissenters of all kinds. Those rights only come alive when citizens organize, protest, demonstrate, strike, boycott, rebel, and violate the law in order to uphold justice.

It would be naive to depend on the Supreme Court to defend the rights of poor people, women, People of Color, dissenters of all kinds. Those rights only come alive when citizens organize, protest, demonstrate, strike, boycott, rebel, and violate the law in order to uphold justice.

The distinction between law and justice is ignored by all those senators—Democrats and Republicans—who solemnly invoke as their highest concern “the rule of law.” The law can be just; it can be unjust. It does not deserve to inherit the ultimate authority of the divine right of the king.

The Constitution gave no rights to working people: no right to work less than twelve hours a day, no right to a living wage, no right to safe working conditions. Workers had to organize, go on strike, defy the law, the courts, the police, create a great movement which won the eight-hour day, and caused such commotion that Congress was forced to pass a minimum wage law, and Social Security, and unemployment insurance.

The Brown decision on school desegregation did not come from a sudden realization of the Supreme Court that this is what the Fourteenth Amendment called for. After all, it was the same Fourteenth Amendment that had been cited in the Plessy case upholding racial segregation.

It was the initiative of brave families in the South—along with the fear by the government, obsessed with the Cold War, that it was losing the hearts and minds of People of Color all over the world—that brought a sudden enlightenment to the Court.

The Supreme Court in 1883 had interpreted the Fourteenth Amendment so that nongovernmental institutions, hotels, restaurants, etc., could bar Black people. But after the sit-ins and arrests of thousands of Black people in the South in the early ’60s, the right to public accommodations was quietly given constitutional sanction in 1964 by the Court.

It now interpreted the interstate commerce clause, whose wording had not changed since 1787, to mean that places of public accommodation could be regulated by Congressional action and be prohibited from discriminating.

The right of a woman to an abortion did not depend on the Supreme Court decision in Roe v. Wade. It was won before that decision, all over the country, by grassroots agitation that forced states to recognize the right. If the American people, who by a great majority favor that right, insist on it, act on it, no Supreme Court decision can take it away.

The rights of working people, of women, of Black people have not depended on decisions of the courts. Like the other branches of the political system, the courts have recognized these rights only after citizens have engaged in direct action powerful enough to win these rights for themselves.

This is not to say that we should ignore the courts or the electoral campaigns. It can be useful to get one person rather than another on the Supreme Court, or in the Presidency, or in Congress. The courts, win or lose, can be used to dramatize issues.
Still, knowing the nature of the political and judicial system of this country, its inherent bias against the poor, against Blacks, the Indigenous and People of Color, against dissidents, we cannot become dependent on the courts, or on our political leadership.

Our culture—the media, the educational system—tries to crowd out of our political consciousness everything except who will be elected president and who will be on the Supreme Court, as if these are the most important decisions we make. They are not. They deflect us from the most important job citizens have, which is to bring democracy alive by organizing, protesting, engaging in acts of civil disobedience that shake up the system.

The courts have never been on the side of justice, only moving a few degrees one way or the other, unless pushed by the people. Those words engraved in the marble of the Supreme Court, “Equal Justice Before the Law,” have always been a sham.

No Supreme Court, liberal or conservative, will stop the war in Iraq, or redistribute the wealth of this country, or establish free medical care for every human being. Such fundamental change will depend, the experience of the past suggests, on the actions of an aroused citizenry, demanding that the promise of the Declaration of Independence—an equal right to life, liberty, and the pursuit of happiness—be fulfilled.

Howard Zinn (1922- 2010) was a famous radical, critic, author, activist and historian best known for his “A People’s History of the U.S.” penned this editorial in 2005 in the wake of the liberal panic over the appointment of Justice John Roberts. It first appeared in the Progressive Media Project.