On the eve of the twentieth century, the Court’s ruling in Plessy v. Ferguson transformed the regional injustice of Jim Crow into the national lie that separate could be equal, codifying the racial apartheid of the South as the law of the land. For decades, freed African-Americans had worked arduously to define the meaning of Black citizenship; the retrograde Court worked quickly to foreclose it. In doing so, it eviscerated, for millions of African-Americans, any notion that justice is blind, compelling one observer to describe the Court as the “grave of liberty.”
The accomplishments of the Court while led by Chief Justice Earl Warren, from 1953 to 1969, stand out as exceptions in the body’s long history of regression. But even the decisions from this period that we now laud for upholding or defending freedom were made within a larger climate of social unrest or revolt, and were often aimed at reversing damage that the Court had done in the first place. The Court is celebrated for its historic decision in Brown v. Board of Education, in 1954, which banned segregation in public education, but it was merely undoing policies and practices that it had set in motion with Plessy. It was also responding to the broader dynamics of the emerging civil-rights movement, which threatened to embarrass the United States on the global stage just as the country was attempting to project itself, during the Cold War, as a beacon of democracy. In 1952, the Truman Administration submitted an amicus brief to the Supreme Court encouraging it to rule against segregation. As the brief noted, “The United States is trying to prove to the people of the world of every nationality, race and color, that a free democracy is the most civilized and most secure form of government yet devised by man. . . . The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination furnishes grist for the Communist propaganda mills.” The Brown decision was a public indicator of progress, but its decree was quickly undermined when, the following year, the Court prescribed that school desegregation be undertaken with “all deliberate speed.” Without a directive that the ruling should take effect immediately, the South was provided legal cover to drag its feet, as the racist “massive resistance” to school integration began to take hold.
At other moments, the coercive power of a mass social movement compelled the Court to act in proactive, even radical, ways. Jones v. Alfred H. Mayer Co., a landmark case addressing housing discrimination, was decided in June of 1968, just months after a series of uprisings catalyzed by the assassination of Martin Luther King, Jr. The decision surpassed the Fair Housing Act, which was signed that April and set to be phased in over a two-year period, by making racial discrimination in the buying, selling, renting, or financing of housing illegal, effective immediately. The majority’s ruling looked to the Thirteenth Amendment and the Civil Rights Act of 1866, and declared that housing discrimination, regardless of whether the source was public or private, was a “badge and incident” of slavery. Justice Potter Stewart, writing for the majority, compared racial discrimination in housing to the “Black Codes” enacted at the end of the Civil War, saying that “when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.”
But, just six years after the Jones decision, the Court, led by a new Chief Justice, Warren Burger, stymied the progress of civil rights. In Milliken v. Bradley, the Court was asked to decide if Detroit suburbs were required to include Black children from the city in a metropolitan-area-wide school-desegregation plan. With the Black movement in retreat, and the political winds moving decidedly to the right—characterized by then President Richard Nixon’s description, in 1971, of “fair housing” as “forced integration”—the Court came to a remarkably different conclusion than it did in 1968. Burger, writing for the majority, claimed that racial segregation in Detroit was “caused by unknown and perhaps unknowable factors,” and concluded that there was no evidence that “governmental activity” had played any role in the “residential patterns within Detroit.” The Court had not forgotten its Jones ruling, in which it plainly described the existence of segregation and linked its origins to state action and private discrimination. Instead, the changing political climate cast similar facts in a different light. It was also a different Court. By the end of his disgraced Presidency, Nixon had appointed four Justices, conjuring a conservative majority that stemmed the momentum from the “rights revolution” for decades.
The Court retains this penchant to shape politics, even with issues seemingly settled by law. Take voting rights. African-Americans in the South finally secured unobstructed access to the ballot box with the Voting Rights Act of 1965, which was intended to end the shameful legacy of race-based voter suppression in the region. But, in fact, the question was not settled. In 2013, Chief Justice John Roberts wrote the majority opinion for the landmark reversal in Shelby County v. Holder, which ended the act’s key enforcement provisions. Just three weeks before George Zimmerman was acquitted of the murder of Trayvon Martin, compelling Alicia Garza to utter the phrase “Black lives matter” for the first time, Roberts argued that these civil-rights protections were no longer necessary because “our country has changed.” Predictably, states across the South began to implement new voting restrictions that overwhelmingly affected African-Americans. Alabama announced that it would require voters to present photo identification, and then, in Black-majority counties, proceeded to close Department of Motor Vehicles offices.
Even when the Court has ruled in ways that appear to be in the interest of minorities or socially and economically marginalized populations, its decisions can be ephemeral, susceptible to partisan shifts, while creating the dangerous illusion of permanence. The Roe v. Wade decision, in 1973, was made in the midst of the women’s-liberation movement, in which reproductive freedom and access to abortion were central demands. In subsequent decades, the changing political climate, including the strategic decisions of liberal feminist organizations to focus their resources and organizing on electoral politics, and not on the street-level mobilizations that won the right to abortion in the first place, has contributed to the erosion of support for abortion rights. The idea that sympathetic politicians were the key to maintaining access to abortion missed the historical lesson that pressure generated by social movements has the greatest potential to overcome the inherently conservative bent of the Court. We now live with the reality that a man accused of sexual assault by multiple women will have the power to make life-altering decisions about our lives, including whether we will retain the right to a legal abortion. The fluidity with which rights can be bequeathed and taken away, in fact, reduces rights to privileges. In a truly democratic society, civil rights should not be contingent on a fortuitous combination of Supreme Court Justices.
