Stop! In the Name of History

- By Michael Thurston

(Photo by The Onion)

Let’s get one thing straight about the Supremes. In this moment, where hope still springs for the defeat of Brett Kavanaugh’s nomination to the Supreme Court (hope that ought to be shared not only by those to the left of center but by anyone who cares about the rule of law, the basic trustworthiness and, well, judgment of their judges), it’s worth remembering that we’ve seen this before. If justice once again loses and allows the unjust elevation to “Justice” of an unworthy candidate, that’s pretty much par for the Court’s course. Many of us came of age when the Supreme Court included thoughtful and learned analysts of statutes and the Constitution in light of changes – in society and in the significance of key phrases – over time and nudged the nation toward slightly less shameful enactment of its enshrined ideals. The Warren Court and even, on occasion, the Court under Chief Justice Warren Burger (thanks to the brilliance of Justices Thurgood Marshall and William Brennan) oversaw expansion of democracy, protection of the powerless, and some small steps toward amelioration of the inequities written into the country from its founding.

That age was an anomaly.

Over the last two centuries, the Supreme Court has been a last stop for numerous partisan hacks and apparatchiks; in this regard, Kavanaugh is in the mainstream of the Court’s history. As Ian Millhiser has written: “the justices of the Supreme Court have shaped a nation where children toiled in coal mines, where Americans could be forced into camps because of their race, and where a woman could be sterilized against her will by state law. The Court was the midwife of Jim Crow, the right hand of union busters, and the dead hand of the Confederacy.” One need only recall Chief Justice Roger Taney and the wretched reasoning of his opinion in Dred Scott v. Sandford (in which he wrote that African Americans are “so far inferior that they had no rights which the white man was bound to respect”). Taney’s bucket of nasty racism was carried on by Justice Henry Billings Brown, author of the majority opinion in Plessy v. Ferguson, which inscribed racial segregation into law in 1896.

Recall too the zealous protection of business interests as opposed to the public interest undertaken by Justice Stephen Field. Income tax? Field saw it as warfare against the deserving rich on behalf of the vast hordes of the unwashed. Remember the good old days when workers were free to work themselves to death without the meddling of federal regulation that sought to protect them? Then you might also remember Chief Justice Melville Fuller and the Court’s decision in Lochner v. New York (which struck down a New York law that limited the degree to which bakeries could overwork their employees).

Or think of the misogynist bigot, James Clark McReynolds, who helped to strike down minimum wage and child labor laws (along with almost every New Deal act with which Franklin Roosevelt and the Congress tried to steer the country through the Great Depression), McReynolds, who also refused to sit next to the Jewish Justice Louis Brandeis in the Court’s annual group photograph. And, more recently, good old Antonin Scalia, whose penchant for alliteration and from-the-hip quips won him an undeserved reputation for rhetorical brilliance (thanks, mainstream media!) and papered over his failure to reason in a way that would pass freshman philosophy, not to mention his idiotic misreading of the Second Amendment’s basic grammar (“argle bargle” indeed).

If Kavanaugh ascends to the highest Court in the land, in short, he’ll be in good company, both in the Court’s present iteration (right-wing hacks Thomas – a fan of Lochner and perhaps a role model for Kavanaugh when it comes to relationships with women – and Alito, who start with desired outcomes and make the law up to suit them) and in adding to its undistinguished past. The only silver lining to the Court’s typically dark cloud might be that American liberals finally return to politics, trying to persuade and unite their fellow voters, rather than relying on five elders in black gowns to take care of their rights for them.

Michael Thurston is the Helen Means Professor of English Language and Literature at Smith College and Reviews Editor for the Massachusetts Review