by David R. Hoffman
Click here to read Part I
The reason America has reached the stage where fascism is rapidly replacing freedom is largely due to the fact that the judicial branch of government (especially the United States Supreme Court) has abdicated its responsibility to protect The Bill of Rights.
To occupy a position in the legislative or executive branches of government one has to be elected by the people. Since these branches are dependent upon the concept of “majority rules,” they have an automatic disincentive to protect the rights of unpopular minorities.
America ’s founders realized this and determined that federal judges would be given lifetime appointments, instead of elected to limited terms in office. They believed that if judges were unburdened by the need to appease the masses, or the fear of being replaced once their limited terms expired, they would be more willing to make decisions that were constitutionally sound instead of politically popular. This also meant that, unlike the other two branches of government, the judiciary had a greater motivation to make farsighted decisions that would ensure the long-term survival of The Bill of Rights.
Unfortunately this has not been the case. More often than not, the United States Supreme Court has sycophantically endorsed the repressive laws and policies created by the other two branches. It made racial segregation the law of the land in Plessy v. Ferguson; upheld the Alien and Espionage Acts, which sent people to prison simply for exercising their right to freedom of speech; enforced the Smith Act, which made it a federal crime to engage in speech that advocated the overthrow of the government; and permitted the internment of American citizens of Japanese ancestry in Korematsu v. United States.
If this wasn’t egregious enough, the United States Supreme Court has often been even more disdainful of The Bill of Rights than the other two branches of government. Prior to the Civil War most Americans hoped to keep slavery confined to the southern states. The Supreme Court, however, in its now infamous Dred Scott decision, actually encouraged the spread of slavery throughout the nation; when the State of New York, for health and safety reasons, passed a law limiting the number of hours that those employed in the bakery industry could be forced to work, the Supreme Court, in its Lochner opinion, ruled that this law unconstitutionally interfered with the bakers’ right to contract with their employers—a particularly asinine decision since, to minimize duress or coercion, contract law normally requires that the parties be relatively equal to one another.
The court’s proclivity to favor property rights over individual rights continued into the Great Depression, when President Franklin D. Roosevelt, tired of seeing his New Deal policies declared unconstitutional, threatened to “pack” the court in his favor by increasing the number of “justices.”
After Roosevelt’s threat diminished, the court resumed its old antics. In Employment Division v. Smith it decimated the right to freedom of religion. Although the United States Congress attempted to reverse the Smith decision through the Religious Freedom Restoration Act (RFRA), the court decreed that RFRA was unconstitutional because Congress did not have the authority to enact it.
In addition, the Supreme Court was so hostile to the Americans with Disabilities Act (ADA) that it became almost impossible for disabled persons to prove they were entitled to the ADA’s protection. This prompted Congress to pass the ADA Amendments Act of 2008. These amendments, however, are not improvements on the law, but instead an effort to restore the ADA to what it was originally intended to do before the court skewed and eviscerated it.
Given this legacy, it was not surprising that the first piece of legislation President Barack Obama signed into law overturned another idiotic decision the Supreme Court handed down in the case of Ledbetter v. Goodyear. This case dealt with the procedures required to file a claim under the “Equal Pay Act.”
Normally a person facing discrimination in employment has 180 days from the date of the discriminatory act to file a complaint with the Equal Employment Opportunity Commission (EEOC). However, since many employers demand that their employees keep their rate of compensation secret from co-workers, and since, under the “at-will” doctrine, employees risk being fired if they do not comply, many courts ruled that each new paycheck constituted a new act of discrimination under the Equal Pay Act, thus restarting the 180 day time period. If employees subsequently discovered that they were being unequally compensated because of their race or gender they then had 180 days to contact the EEOC.
In Ledbetter, however, the Supreme Court essentially declared that if an employer succeeded in concealing its discriminatory compensation policies for the 180 day period immediately following an employee’s receipt of his/her first paycheck, then that employee had no legal recourse under the Equal Pay Act.
Nothing is more symbolic of the disconnect between the United States Supreme Court and the rest of America than the election of Barack Obama. While the nation celebrated the racial progress that resulted in Obama winning the Presidency, the court was busy issuing some of its most reactionary and racist rulings since Plessy was decided over one hundred years ago.
In two separate cases, Parents Involved in Community Schools v. Seattle and Meredith v. Jefferson County, the Supreme Court resurrected Plessy’s doctrine of “separate but equal” by encouraging the resegregation of public schools. In their specious attempts to rationalize these rulings, some of the racists on the court even had the audacity to cite Brown v. Topeka, the landmark decision that, until these two cases, was thought to have ended the doctrine of “separate but equal” by ordering the desegregation of public schools.
And just a few weeks ago, this court continued on its racist path by narrowing the protections of the Voting Rights Act, a law created to give racial minorities a more effective voice in government.
When I think of the number of people of all races who struggled, suffered and died during the lynchings, the freedom rides, the sit-ins and the marches so that laws like the Voting Rights Act could be passed, it is disgusting to witness their courageous sacrifices being undone by four robed racists—John G. Roberts Jr., Samuel A. Alito, Antonin Scalia and Anthony M. Kennedy—who make their decisions from the safety of one of the most fortified buildings in the world.
But the vileness of these four men pales when compared to Clarence Thomas, the Supreme Court’s sole African-American member, whose self-loathing and perverse desire to appease his racist colleagues has launched him on a vindictive crusade to destroy all the gains of the civil rights movement.
Thomas himself, albeit indirectly, confessed to the origins of his self-loathing and need to appease racists during a speech where he discussed his experiences at Yale Law School.
Thomas stated that during these years he learned to disdain affirmative-action policies, because many of his white classmates believed he had been given preferential treatment because of his race. To prove these students wrong, Thomas claims he intentionally enrolled in some of the law school’s most difficult courses.
This, of course, gives rise to the question: Why should Thomas have cared what the white students thought of him? Undoubtedly many of those students were also at Yale because of preferential treatment, garnered through their parents’ wealth and influence. Yet it is doubtful that these students felt any commensurate need to “prove” themselves to Thomas.
Although it’s hard to believe that four white racists and one self-loathing African-American possess the power to destroy the rights of millions of Americans, the grim reality is that the branch of government specifically created to preserve the freedoms enshrined in The Bill of Rights will instead be the branch that destroys them.
David R. Hoffman, Legal Editor of Pravda.Ru