The Supreme Court of the United States has never been a consistent ally of Black people in America, so there’s really no reason to fear that the new Trump Court on the horizon can turn back the clock on Black progress any more than the united will of the Black masses permit it to.
President Donald J. Trump has cut a super-insider trade deal with his appointment of D.C. native Brett Kavanaugh, a member of the U.S. Court of Appeals for the D.C. Circuit, to replace retiring Justice Anthony Kennedy.
There are numerous, but thinly sourced reports of a sweetheart deal: “Justice Kennedy’s son gave a billion-dollar loan to Trump when no one would give him a dime…” Neera Tanden, president of the Center for American Progress, said in a tweet June 29, several days before Trump even announced his pick. The money is alleged to have come from Deutsche Bank, from the portfolio managed by Justin Kennedy, the justice’s son, after numerous Trump bankruptcies.
Other reports allege that Kennedy negotiated with Trump for weeks before his retirement to win a firm guarantee that The Donald would nominate Kavanaugh, one of Kennedy’s former law clerks, upon his retirement. How cozy. Trumpland pay-to-play.
Now, Senate Majority Leader Mitch McConnell (R-Ky.) plans to put the Kavanaugh confirmation on the super-fast track, approving him by Oct. 1, before the Court convenes its next session. That’s just two months from vetting, to interviews with senators, to hearings, to a vote on the floor. Ironically, when Kavanaugh was nominated for his current seat on the appeals court, his confirmation took THREE YEARS because his past is so problematic.
McConnell is to be “thanked” for giving Trump two court nominees in less than two years in the White House because in 2015 he stole an appointment from outgoing President Barack Obama, who nominated Judge Merrick Garland to fill the seat of the late Antonin Scalia. That theft took place when Obama had more than a year left in office, but Mitch would not even permit hearings to study Garland’s fitness for the Court. When he took office, Trump appointed staunchly conservative Justice Neil Gorsuch.
Whatever qualifications Kavanaugh has now, Garland’s are superior. Garland has served longer, and is the chief judge of the appeals court on which Kavanaugh sits. But that story is now ancient history. So let’s just say this was a “cozy” nomination hashed out among bosom buddies.
“I would say that we’re [now] back into the 1940s and ’50s,” said Gloria Browne-Marshall, professor of constitutional law at John Jay College of Criminal Justice.
Those were the days when Black folks knew few legal protections.
“So, what is the function, ultimately, of the law?” Dr. Greg Carr, professor of African-American studies at Howard University, said to me. “The function of the law is to ensure equal protection and due process, if we look at the Civil War Amendments. We can make the argument that the Civil War Amendments to the United States Constitution were the most important amendments to Black people in America, in Constitutional history, because for the first time in American history, the first 10 amendments were ostensibly extended to us. But, since they were never enforced, it took Black people to undertake a ‘Second Reconstruction’ in the 1960s, to enforce those rights.”
“Now, we’re faced perhaps, as our friend the Rev. Dr. William Barber has argued, we’re in the throes of a ‘Third Reconstruction,'” Carr said. “A Third Reconstruction, meaning: that the rights of the Constitution, guaranteed to us through the Civil War Amendments, but fought for in the streets during the Second Reconstruction of the 1960s, has failed yet again, because the ‘whitelash’ to that movement, meaning everything from the 1960s to now, has been designed to still elevate white citizenship over, any other form of citizenship.”
A legal, racial hierarchy, with Whites at the top was always the intention of the law and the courts in this country, Carr said.
“I think that, at the heart of the American legal universe has been the fundamental preservation of whiteness as citizenship, whiteness as property, whiteness, in other words, as an elevated form of civic humanity,” he said.
Historically, some decisions have been far worse and were decided by “supermajorities.”
“In the Dred Scott decision in 1857, the fundamental argument was … when [Chief Justice Roger Taney said] the famous line that Black people have no rights that a White man is bound to respect, what he’s basically saying is that, regardless of whether you were born in a free state or a slave state, your status as an African, transcends the region of your birth,” Carr said. “You can never be fully secure in your rights.”
The Dred Scott case was decided by a 7-2 Supreme Court vote. The infamous Plessy vs. Ferguson case in 1896, which reaffirmed segregation with the language “separate but equal,” was decided by an 8-1 vote on the court. Neither Black people in America, nor anyone else, is going back to the days of Dred Scott or Plessy, I assure you.