Dissent and the Supreme Court: it’s role in the court’s history and the nation’s constitutional dialogue by Melvin I. Urofsky (2015)
Probably best to buy this book because it is over 400 pages and extremely detailed with almost every sentence containing information of significance to the discussions of cases that have been before the Court and will be again based on the numerous unconstitutional laws so many states have passed recently. I do not recall what I was reading or watching, but I was suddenly struck by a better understanding of racism in America. Though I am white, I have a heart and am empathetic and compassionate, but now that I am older I suppose, I more truly grasp how wretched and unreasonable and dreadful and pervasive explicit racism (then and, alas, now). Some people were fooled when it was briefly suppressed by being converted to more subtle or maybe secretive racism that we had for a little after the Civil Rights Movement. And obviously, this was not true. Voting rights are at risk for most people in light of recent Supreme Court decisions, Citizens’s United, but also the one (Shelby v. Holder recently where Clarence Thomas (and Scalia and the other Republican Justices) decided to gut the Act and said, sort of, racism doesn’t exist anymore and so federal review of states laws regarding voting rules was no longer necessary. We have now also seen that this was just another bad decision by these conservative men who want to suppress the vote. Witness the change of Arizona changes to their laws, which they were now allowed to do without Federal review by the Shelby ruling, to reduce the number of polling places from 300 to 60, resulting in 5 hour waiting in lines for many people, miles long queues, and the pretense that “provisional” ballots will even be counted.
Ah, I just recalled, I was listening to a book on CD called “The Fierce Urgency of Now: Lyndon Johnson, Congress, and the Battle for the Great Society,” (by Julian E. Zelizer, 2015), about the Johnson administration and how unbelievable racist without apology Southern Democratic politicians were in fighting the passage of all kinds of attempts to eliminate the racist laws like poll taxes and literacy tests, and threats and intimidation and lynchings and not allowing Negros to serve on juries, essentially nullifying any right to bring a case of voter disenfranchisement since the whites on the jury would never find a white person guilty of harming a black person (even if they wanted to, the Klan would turn on them like the mad dogs they are). I forget who (I will have to get the hard copy to look up the names), but one Senator stood up and declared “I am a white supremacist” and essentially proud of it and he obviously would never support anything that eroded that position. It may have been Strom Thurmond, at least that was who I was anticipating it to be and probably was as this quote in Wikipedia illustrates:
I wanna tell you, ladies and gentlemen, that there’s not enough troops in the army to force the Southern people to break down segregation and admit the Nigra race into our theaters, into our swimming pools, into our homes, and into our churches.”
One thing I was just shocked to learn was that the man was a really true American Hero in the War II. He stepped down from his judgeship to serve in the army and actually landed a glider during the battle of Normandy. I mean wow, the awards he got!
Of course it is offset a lot by the fact that he took a 16 year old black servant as a mistress and had a child by her that was not acknowledged for decades while he was saying crap like that. I was confused at first how he could have ever been a Democrat, but reading a bit more of his biography on Wikipedia it mentioned that South Carolina was a one party state, Democrat. However, when the issue of desegregation came up, he was so virulently racist (like the white men who expressed hatred toward black women but would have no issue raping them despite of denouncing them as otherwise unworthy of sharing the same drinking fountains), that the democrats split and he even ran for president in the segregationist party known as Dixiecrats. Wow, just wow. And I was not surprised when I followed a link to find that he was never truly “remorseful” as the myths about him now are proclaimed (like the sainthood of Ronnie, the majesty of dead Scalia). Since it is the Internet, I checked the source and it was Slate.com and I find them reliable.
As the discussion of the political games went on that showed it did not matter at all what would result in justice, or fair and decent, or just plain the right thing to do. It was all about obstructing any African American civil rights down to a level that would be enough to please the Southern Democrats to vote for ultimately toothless laws. But more on that book later, after I get the hard copy.
Back to this book on dissents. The chapter called “John Marshall Harlan: The First Great Dissenter” has a photo of the three men (Ronald Martin, Robert Patterson, and Mark Martin) who staged a sit-down strike after being refused service at Woolworth’s in Greensboro, North Carolina. I had seen the photo before but the sheer ordinariness of being able to sit at a diner counter – as I had myself sat at a Woolworth’s counter as a teen, struck me anew. This was a monumental act of courage. Contemporaneously I had no grasp of the significance. Even later I did not get it, partly because the Civil Rights Act fixed it, right? But now I know better! And it is very disturbing.
So I turned on BookTV for my Saturday fun fest while doing other things, and there was a program on Dayna Mathew’s book, Just Medicine: A Cure for Racial Equality in American Healthcare. She spoke with a passion that is compelling talking about the impact of implicit racism on medical care. I have to admire a woman who mentions that “my own mom would have to pull me back from trying to make justice happen” – I too want to make justice happen!
Specifically, she mentioned how doctors doing rounds identify patients as “elderly black woman” or some such. Race has nothing to do with medical care unless it involves sickle cell anemia as she pointed out. It reminds me of the feminist issue too that shows implicit sexism by having to modify nurse to male nurse, or male librarian, or woman CEO, and so on as well as how doctors frequently treat women differently, not believing them about symptoms and disregarding facts as exaggerations. Back in the day, if a woman was diagnosed with cancer, the doctors often did NOT tell the woman, but only her husband (if there was one, and there usually was back in the day). And the infamous “don’t worry you pretty little head about it” non response to questions about conditions and treatments.
Like the little trick to prove when you hear the word “human” you do NOT envision a woman in your mind’s eye. When you say “domestic” you don’t see a white man. Conservatives love to say, women get paid less because they gravitate to fields that do not pay well, but really it’s more accurately a chicken and egg thing. Some jobs pay less because they are predominately women workers. I once joked (but it was the truth) that 99% of librarians are women, but the 1% of the male librarians make 99% of the salaries – and are more likely to be the directors at that. Well, the same thing goes for race.
Like women, non-white males have to be better, work harder, never make a single mistake, and suffer all kinds of slights and slurs and distorted views of the quality of their work. Unfortunately I don’t know how we can change the minds of people who, when they have been quietly bigoted for the last few decades, now feel completely comfortable making threats and killing blacks with utter disregard – especially horrifying are the shootings by police.
The Founding Fathers kicked the can down the road to the states of what to do about the slaves (the infamous 3/5 rule, NOT so that slaves could vote or have representation, but rather to ensure that the white plantation owners got EXTRA representation in the House by counting slaves as people while treating them as property.
The Compromise of 1877, which had ended Reconstruction and permitted the former Confederate states to rejoin the Union, also implicitly confirmed that henceforth matters of race relations would be left to the states in which people of color lived. There would be a few cases where the discrimination proved too great and the Court intervened, such as the southern peonage laws that practically re-enslaved some blacks. The justices, like most of the country, had little interest in former slaves.
Because of the near unanimity of the Court and the increasing indifference of the country to the fate of the former slaves, Bradley’s interpretation* eventually became accepted as the proper one. Not until the 1960s did the Court begin to dismantle Bradley’s opinion. In 1961, it used Harlan’s notion of state action to hold that a privately owned restaurant that rented spaces in a municipal parking garage could not deny service to a black customer. According to Justice Tom Clark, it would be a grave injustice for African Americans to be treated as second-class citizens without any rights in another part of the same publicly owned building.” (p. 114)
Again I see weird twisted focus on the letter of the law instead of justice. Like Roe v. Wade that rested on the right to privacy between a woman and her doctor rather than bodily autonomy, the court did not find that it was simply wrong to restrict public businesses from African Americans because of race, but rather some parking lots paid for by taxpayers including them I guess from the sound of it. So right outcome but weird reasoning.
Two years later, in one of the early sit-in cases, Justice William O. Douglas looked to Harlan’s opinion in his concurrence. Although there was no specific restaurant segregation ordinance in New Orleans, local officials encouraged owners to maintain segregated facilities. . . . The majority opinion, by Chief Justice Earl Warren, overturned the convictions [of trespass] on equal protection grounds.
Although Douglas agreed with the outcome and the reasoning, he would have gone further. He found the claim that the restaurant was private property to be ill-founded, because “access by the public is the very reason for its existence.” There was too great a nexus between a restaurant and the state in the form of licenses, permits, health regulations, and the like for the owner to claim it as a purely private undertaking. To bolster his point, Douglas cited Harlan’s assertion that insofar as the Fourteenth Amendment was concerned, “railroad corporations, keepers of inns, and managers of places of pubic amusement are agents or instrumentalities of the State, because they are charged with duties to the public.” When another sit-in case reached the high court a year later, Justice Arthur Goldberg also looked to Harlan’s argument that the civil rights enjoyed by the former slaves must mean nothing less that the same treatment that would be received by a white person.” (p. 114)
When activists beseeched Congress to enact comprehensive civil rights protection, Congress framed its justification of the 1964 Civil Rights Act in terms of its power over interstate commerce. [Again, shoehorning law rather than seeing the justice? Is that really the only way to do things? Why not “all people are created equal?”] The Civil Rights Cases had never been overruled — they had never even been challenged — and neither the president nor congressional leaders thought they could act under the Enforcement Clause of the Fourteenth Amendment. In the lead case challenging the 1964 act, Justice Clark declared the Civil Rights Cases “without precedential value” and affirmed that Congress had the necessary power not only under the Commerce Clause but also under the Enforcement clause of the Thirteenth and Fourteenth Amendments. Although not referring to Harlan’s dissent directly, the majority and concurring opinions used his analyses of both public accommodations and state action in upholding the law. (p. 115)
The part that really appalls me, well actually there are so many, but that people would be so hateful to pursue these bad behaviors of treating people differently because of something as stupid and arbitrary as the color of the skin. Especially white people who spend time in TANNING BOOTHS or use fake tan spray to become NON-WHITE. For them the color of their skin is a choice, even if they end up being orange people and look incredibly stupid (Boehner, Trump – especially with the white glow of goggles around his eyes.)
And now today, substitute LGBT for race, and first of all, who gives a shit what sexual orientation anyone is? Money is green (well it used to be). What the fuck does it matter to you what someone else chooses to do other than buy a freaking cake? YOUR RELIGIOUS BELIEFS DO NOT SUPERSEDE the legal right of someone to buy a cake or pizza or sleep in your freaking inn.
A few years later, the Court once again [!!!] showed that it no longer believed the Civil Rights Cases controlling and adopted Justice Harlan’s reasoning.An African American had tried to buy a house in St. Louis and had been refused solely on the grounds of his race. He sued in federal court under the 1866 Civil Rights Act (section 1982), which guaranteed all citizens would have the right to “inherit, purchase, lease, sell, hold, and convey real and personal property.” [hmm when did married women get this right? 1848 in New York] The district court dismissed the suit on the grounds that section 1982 applied only to STATE action, not to PRIVATE refusals to sell. (p. 115)
The Supreme Court reversed and declared that the legislative history of the 1866 statute made clear that Congress had intended to ban private as well as state-sponsored discrimination. As for the source of congressional authority, Justice Potter Stewart looked not to the Equal Protection Clause of the Fourteenth Amendment, because that had not yet been ratified in 1866. Instead, he turned to the Enforcement Clause of the Thirteenth Amendment and, using the same logic as Harlan, held that the Thirteenth Amendment had been adopted to remove the “badges of slavery” from the nations’ black people. It gave Congress sufficient authority to determine what constituted a badge of slavery and do away with it.
Harlan was very much a man of his time in his patrician and indeed racist outlook regarding black, but his CONSTITUTIONAL VIEWS on many matters went well beyond those of his colleagues and even some of his successors (can you say Clarence Thomas). The liberal icons William Brennan, William O. Douglas, and Thurgood Marshall at times found the brethren taking what they saw as TOO LIMITED an interpretations of the Fourteenth Amendment and the powers it gave to Congress. Brennan cited Harlan to criticize what he deemed a much too limited construction given by the majority to the INTENTIONS of the amendment’s framers regarding congressional authority. Douglas echoed Harlan’s claim that the majority had taken “too narrow and artificial view” a view of section 1983 in determining what constituted a violation of a person’s civil rights and a couple of years later cited Harlan again to support his dissent that the majority misread the extent of governmental power. Thurgood Marshall, in the first case in which the Court spoke on the constitutionality of affirmative actions, referred to Harlan’s view on the type of equality that the Fourteenth Amendment had been enacted to secure.
Although Harlan’s opinion is a good example of the efficacy of dissent in convincing future courts, and although his remained practically the sole voice on the Court at that time seeking equal rights for people of color, at least in terms of modern civil rights his viewpoint is somewhat restricted. Like most of his generation he drew a distinction between CIVIL RIGHTS and SOCIAL RIGHTS. Civil rights were fundamental but narrow, and perhaps the most important component was the right to enter into a contract — the basis of economic activity and clearly a prerequisite if former slaves ever hoped to get ahead in the market. A business invited patrons to enter; the patrons had a right either to enter or not and, if they chose to do so, to make a contract to buy whatever the business sold. [Again, LGBT issues today!] If Congress chose to do so, he [Harlan] believed, it could REQUIRE ALL BUSINESSES to allow African Americans to patronize them on the same terms as white customers did. [I am going to bet that whites received preferential treatment and better prices on everything too, back then and now too I expect.] (p. 116)
Congress did not, however, have the power to enforce social rights, the most important of which involved the right to choose one’s associates. [or who you can marry!?] Where did the boundary exist between a civil right and a social right? For example, suppose a theater owner put on a play and sold tickets to the public. It would be a civil right to buy a ticket, but could the owner then require that all blacks site in a separate section? Today, of course [!?], we would condemn such segregation as a violation of civil rights, but in the 1880s a powerful argument would be made that only the social rights of African Americans — to site where they chose — had been violated, and neither the Thirteenth no the Fourteenth Amendment protected social rights.
Even acknowledging that John Marshall Harlan‘s views on racial equality were not those of a modern civil rights proponent [which is to say he was racist], one has to note the moral tone — the concern for the future of the freemen — that is totally missing in Bradley’s majority opinion, with its cavalier dismissal of the freedmen’s claims. With all its limitations, Harlan’s dissent would have allowed — but not guaranteed — outcome that the framers of the Reconstruction amendments clearly had in mind and that the majority opinion foreclosed.
. . . That message [Harlan’s dissent] could also be found in the most famous case on race relations in the late nineteenth century, Plessy v. Ferguson (1896) and John Marshall Harlan’s dissent there is still cited.
So I was watching BookTV after writing the material above, and there were several more good books on various topics of interest, but in particular, The Fight to Vote caught my attention and was a fascinating discussion. Maybe the program is available online. I have reserved it at the library. I sure love my library they almost always have the books I want and if not, inter library loan covers, and they have an opportunity for users to request particular books or other items up to 10 per year. My only complaint is that if I make a request but they already planned to buy it, it still counts against my total. I always use up my ten.
So, okay, all of this has been about just a tiny part of the book. There is also extensive discussion of many other significant cases and actually makes sense of the world we live in now in many cases. The benefit of hindsight makes it easier to see systemic bias that when one lives immersed in it, like a fish in water, bias just appears to be the environment.
One of the cases covered is the famous Lochner v. New York that was so very wrong to support “the liberty of contract” [gag, choke, vomit] was considered to be superior to abuse of labor by employers in the baking industry in New York. New York State had tried to pass a law to protect bakers by LIMITING their hours to 10 hours a day and 60 hours a week. I will definitely have to review the judicial history of the lie of “at will” employment.
The industrialization of the United States after the Civil War brought great wealth to the nation but also opened up a Pandora’s box of social ills than men and economic disparities unknown in an earlier and mostly agrarian country. The growth and prosperity did not come without a human price. Working in mines, mills, and factories was often dangerous. Owners hired women and children, some as young as six, not only because of their nimbler fingers but also because they worked for lower wages than men. [Another example of chicken and egg, they were NOT offered more I am sure! It is not like they were offered more and chose to work for less!] In many industries, workers toiled ten or more hours a day, six or seven days a week; in the steel industry, for example, a twelve-hour day remained the norm until after World War I. The sick or injured SIMPLY LOST THEIR JOBS and, if they had no resources of their own, relied on family, friends, neighbors, or local charities to survive. A network of laws PROTECTED OWNERS not only from efforts by workers to unionize but even from PAYING DAMAGES to laborers hurt on the job. While life certainly improved for those in the middle and upper classes, it did so ON THE BACKS OF LABORING MEN, WOMEN, AND CHILDREN who seemingly had no voice in either society or politics.
And it remains so, but more people are members of the laboring force and fewer in the middle and upper class. Now we have the ultra-rich and the “takers” who want a living wage and social justice through government intervention of unscrupulous labor practices. Unfortunately, then as now, government remains of the corporations, by the corporations, and for the corporations. Definitely not the people. We have the illusion of democracy with our elections and votes, but now in this 2016 election in particular with a tiny percent of the richest of the rich buying politicians, and illegal laws (or that should be illegal) restricting voters , we have reached a serious tipping point. It was crucial election of our times before Scalia died with the aging of the Supreme Court generally, but after his ultra conservative Catholic Republican beliefs can no longer command the swing vote, all bets are off. The evidence of which is the first ever in the history of the country refusal of the Senate to even hold hearings on any candidate nominated. Which, as it turns out, is working for me right now because Obama has once again compromised to suit the status quo by nominating Stephen Merrick who is NOT what the Court needs to pull us back from the cliff of right wing extremism and religious zealotry with a lot of discrimination on top, especially for women’s right to bodily autonomy aka abortion rights and right to contraception including treating it and abortion like every single medical issue — we have now gone back to the Lochner status where EMPLOYERS HAVE THE RIGHT TO DO AND PAY WHATEVER THEY WANT by “employment at will” bullshit. They are saying it is up to your boss if your insurance will pay for your contraception — even when that medication may be MEDICALLY REQUIRED to treat serious conditions unique to women like endometriosis.
The description of the working conditions of the bakers around page 139 is the stuff of nightmares. So freaking awful it is hard to believe people tolerated it, but it was work or die. “Profit margins were low, and lacking any form of mass production, few opportunities existed to improve efficiency. About the only costs over which the boss baker had any sort of control were the wages he paid, how many hours he could work his men, and the rent he paid for his work space.”
The work spaces were usually (87%) out of tenement house cellars.
From the bakers’ view, the rent was cheap and the floors, whether of wood, dirt, or occasionally concrete were sturdy enough to support the weight of an oven. These spaces, however, had never been intended for commercial use; in fact, they had not been designed for any use other than storage. Whatever sanitary facilities the tenements had — sinks, baths, and toilets — all drained down to a sewer pipe in the cellar. In the 1880s, when many of the tenements had been constructed, the drainpipes had been made of clay and brick, and even the more modern iron pipes leaked and smelled foul, especially in the heat generated by the baking ovens. In the cellar bakeries, the sewer pipes were often encased in wood and used for benches, storage, or even COOLING RACKS for the loaves.
One could hardly imagine a worse place in which to prepare food, or even in which to work. The cellar floors were often damp, from either leaky sewers or rain seepage; dirt walls were the norm and ceilings usually low. . . .Everyone who visited these workplaces agreed that they were filthy and that the bread they produced posed a health hazard to consumers. Something had to be done.
So the state of New York passed a law to restrict bakers’ hours to a maximum of sixty (60!) per week and long story short, Joseph Lochner’s bakery was ratted out for violations. Previously he had simply ignored the law (as did other owners) but this time he self-righteously decided “no one was going to tell him how to run his business — not the worker, nor the union, nor the State of New York. ” This just blew me away! We have been living with this attitude forever!! And the worst of it is, it has gotten worse. Why is that? I am baffled, but I suppose once again it all comes down to the money and power it provides. Priviledged white male judges with an idealized sense of what UNREGULATED CAPITALISM really meant deciding the fate of so many people in the face of common sense, human decency, and LOSSES “IN the TRIAL COURT and at all levels of the state’s appellate processes…” But I guess that had no influence on the majority (5-4) of the Supremes.
[Rufus Wheeler] Peckham delivered the majority opinion employing a fundamental rights/due process analysis. The hours provision CLEARLY INTERFERED WITH THE RIGHT OF CONTRACT, he declared, which the Court had recognized in Allgeyer v. Louisiana (1897) as part of the liberty protected by the due process clause of the Fourteenth Amendment. . . .the law always favored liberty of contract. The Bakeshop Act could be sustained only if in fact it protected workers’ health, and Peckham clearly did not believe that it did. ‘Clean and wholesome bread,’ he asserted, ‘does not depend on whether the bakers works but ten hours a day or only sixty hours a week.'”
I would dearly love to see his time sheet! Even better, he should have been forced to visit the bakeshops and eat the bread that had been cooling on wood encased sewer pipes. Anyway, good justice Harlan said the Bakeshop conditions fit acceptable parameters. Oh, the details just go on and on, and are so fascinating. Things like the role of “reasonable men” as the basis for rational judgment. “Unless a clear constitutional prohibition existed, legislatures ought to be free to pursue ANY POLICY THEY DESIRED.”
‘The Fourteenth Amendment,’ he declared in one of the most quoted epitaphs in American constitutional history, ‘does not enact Mr. Herbert Spencer’s Society Statistics.’ In that one sentence,[Justice Oliver Wendell] Holmes exposed the basic premises of both the majority opinion and the Harlan dissent — a belief that the Constitution existed to protect property rights, and anything threatening those rights was clearly invalid.”
This is the time of that is still present today, a corruption of Darwin’s Theory of Evolution called Social Darwinism that led to laws like the sterilization of women deemed degenerate and other abuses based, essentially, on victim blaming and discrimination justification.
This is just the tip of the iceberg of all the cases discussed in the book. All the cases cited appear in an index 11 pages (!) long, two columns per page. Really really important cases that are still controlling and relevant today. If you want to know how wrong and blind justice can be, this book will blow your mind. That’s why you should buy it because it is 528 pages (with the indices) of jam packed facts that you need to know to understand the law, the courts, the Constitution, and kind of how you are screwed.
Published in 2015, I guess he had to stop somewhere, but I would sure like to see his take on some of the Ruth Bader Ginsburg’s recent “blistering dissents” especially against Scalia’s opinions.
Various notes of interest:
*In 1883 five cases, The Civil Rights Cases, were heard that tested the reach of the Enforcement Clause of the Fourteenth Amendment. Justice Joseph Bradley’s opinion for the majority (8-1 with Justice Harlan dissenting) “denied both of the government’s contentions [the government argued that the Thirteenth Amendment abolished slavery and made free citizens of slaves] and, in doing so, robbed the amendments of much of their meaning for the next eighty [80!] years.”
Bradley argued that NOT EVERY example of discrimination against Negroes could be interpreted as a badge of slavery. Therefore, the Thirteenth Amendment could NOT be invoked as a BAN ON ALL FORMS of racial prejudice.” [WTF? This is the difference of time because civil justice was seen as their purview but NOT social justice which was left up to the states.] (p. 110)
The Fourteenth Amendment, however, had been drafted specifically to ensure freedmen’s rights, but Bradley rejected the idea that Congress had any AFFIRMATIVE powers under the Amendment. According to him, Congress could act only in a remedial manner. That is, if a state enacted a law that restricted the rights of black citizens, then and only then could Congress legislate to correct the injustice. Without prior action, Congress could do nothing. Bradley then went even further [:-(] to declare that the federal government had no power to legislate against acts of PRIVATE discrimination, such as the exclusion of blacks from hotels, restaurants, or theaters. With this decision, the Court severely restricted congressional power to protect the freedmen, essentially leaving their rights to the states.” (p. 110)
OMG. I am nearly speechless at this clearly opposite interpretation of the intent of the Amendments. The book does not carry on discussing what I am sure are numerous statutory laws or other cases invoking these and other Amendments were used to justify AFFIRMATIVE action in other circumstances. I seem to recall a case about fees and California State and the railroads where a corporation actually used the equal protection argument that had a bad result of a monopoly or something as a consequence.
Roscoe Conkling, the former New York senator who had helped draft the postwar amendments, wrote to Harlan and told him his dissent was ‘the noblest opinion in the history of our country.’ Harlan began by accusing the majority of sacrificing:
‘the substance and spirit of the recent amendments . . . Constitutional provisions, adopted in the interest of liberty, and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental.’
The Court, he charged, had abandoned the long-standing rule that in interpretation of constitutional provisions ‘full effect be given to the intent with which they were adopted.'”
Thankfully The Civil Rights Cases were ultimately abandoned as of precedential value.
John Archibald Campbell was associate justice 1853-1861, and lead counsel in the Slaughter-House cases that were the first to interpret the recently enacted 13th & 14th Amendments.
[caps are my emphases]