SUPREME COURT REVIEW

In the years after the adoption of the Constitution, the United States Supreme Court stepped into a power vacuum left open by the Constitutional Convention.  How was the Constitution to be enforced against the three branches of government?  Who would have a final say on the meaning of the Constitution and when? 

The bold move for power made by Chief Justice John Marshall and his fellow judges in the case of Marbury v. Madison (1803) could have been overruled by President Madison or by the Congress in some way.  Nothing in the Constitution itself stated that an unelected court would wield the vast power this court was assuming to itself.  No other court in any nation ever held such supreme authority. 

However, the principle of “judicial review” established in Marbury v. Madison was accepted by the executive and the legislative branches as a workable compromise.  It balanced power much more than leaving this “final say” either up to the President or to the Congress would.  Indeed, to keep the President and the Congress somewhat coequal, it was necessary not to vest far greater powers in either one.

On its own initiative, the Supreme Court had made itself a powerful branch of the federal government and diffused power in Washington in the cause of greater freedom.  Every State in the Union since has adopted in their state Constitutions Justice Marshall’s idea of a governing role for the courts.

But since that glorious libertarian moment, the Supreme Court has not been the ideal steward of the freedoms given to Americans by the Constitution.   

On the question of the citizens’ equality under the law, the high court twice got things wrong disastrously.  In Re: Dred Scott (1857), Plessey v. Ferguson (1896).  The 14^th Amendment was not enforced in the Old South for nearly a century after its passage. 

Yielding to the twentieth century tide of socialism and the blandishments of President Franklin Roosevelt, the Supreme Court in the case of NLRB v. Jones & Laughlin Steel Corp. (1937), to its eternal infamy, twisted the Commerce Clause of the Constitution to create an all-powerful Congress: the antithesis of freedom.  The tale of the growth of the federal behemoth since is the greatest infringement of Constitutional freedom in the history of our nation by far.  Sadly, the law in all of the States has also traveled down this same path to socialism

    Case by case, year to year, the Supreme Court remains the arbiter of how much freedom the citizens are to be allowed under the Constitution.  The scorecard over the past twenty-five years continues to tilt in favor of greater state power.   A large and increasing share of that power is being wielded by the judicial branch itself.   

    The hubris in Washington has grown so deep the Supreme Court opened our 21^st Century by depriving the citizens and the States of the authority to control and participate in Presidential elections.  Bush v. Gore (2000)  Five Supreme Court justices proved how craven and hollow our law has become.  The achievement of executive power in favored hands was far more important to the Supreme Court than the Constitution itself.   (See our past story on the Bush v. Gore case.)

    Periodically, this newspaper will review the progress of our freedom in the halls of the Supreme Court.  The outlook is bleak.  There is no present hope for retrenchment of federal power and little hope that freedom will even be able to hold its own on many fronts.  So, there is no more important news to cover in our age. 

    One pair of recent Supreme Court decisions, Gratz v. Bollinger (2003) (University of Michigan admissions criteria) is reviewed in this edition.  Another decision this year, Lawrence v. Texas, (2003) (the Texas sodomy law) will be reviewed in our next edition. 

     The University of Michigan pair of decisions goes once again down the wrong road for establishing the equality of citizens.  The Texas decision invents a new right in the Constitution that is near certain to make for its own destruction in the end.

A BLOW TO LEGAL EQUALITY

“Section 1.      All persons … are citizens of the United States

 and of the State wherein they reside.  No State shall make

or enforce any law which shall abridge the privileges or immunities

of citizens of the United States; nor deny to any citizen ….

the equal protection of the laws.” 

14th AMENDMENT TO THE UNITED STATES CONSITUTION.

     These words, written in blood in the aftermath of the War Between the States, were intended to be the prime vehicle to bringing full legal equality for Negroes and other oppressed minorities in the Union.  The 13^th Amendment enacted three years earlier had outlawed slavery in the Union once and for all.

            In the years prior to the election of Abraham Lincoln and the South’s immediate secession from the Union, the United States Supreme Court had been presented with its own opportunity to make a blow for freedom and legal equality before the law.  Had the Court members taken the opportunity creatively it is not inconceivable that the later conflagration could have been avoided.  Men of Southern Honor would take much more kindly to the decision of a high court with Southern blood than to the policies of a new President from abolitionist Illinois.

     Instead, in the case of Dred Scott v. Judge Sanford, (1857) the Supreme Court affirmed the legal right of slave owners to have their property returned to them, even when the person owned had attained his freedom in the North.  Going much further, the Court held the federal legislation known as the “Missouri Compromise” was unconstitutional.  That law barred the spread of slavery to states seeking to join the Union.

      As a near unanimous court decision, Dred Scott greatly encouraged the South in its conviction that “States’ rights” allowed for social institutions even as heinous as slavery.  The South was well within the law. 

     In the North, Dred Scott galvanized the forces for abolition by raising the prospect that slavery could be instituted in any State at any time.  Instead of containing and moralizing against slavery under the Missouri Compromise, the possible spread and ultimate victory of slavery as a national institution was again a very real possibility.  The standard bearer for the struggle against slavery became the newly formed Republican Party.   

         While the 14th Amendment and the first civil rights act impacted the North in vast ways over time, in the Old South neither enactment had much impact for nearly a century.  Negroes remained second class citizens in every way.  Once again, the United States Supreme Court deferred on its opportunity to advance racial equality: now by applying the simple words of the 14^th Amendment.  Instead, the Court legitimized the fraud that Negroes could have “separate but equal” public facilities under Jim Crow laws.  Plessey v. Ferguson, (1896).  Mr. Plessey, since he was 1/32^nd black, could constitutionally be compelled to sit only in the rear (and inferior) train cars.

     Although in the area of public education the doctrine of “separate but equal” was finally reversed by the Supreme Court, Brown v. Topeka Board of Education (1954), it took enactment of the Federal Civil Rights Act of 1964 to bring an end to lawful racial discrimination against racial minorities in the United States.   

        With this imperfect history, the United States Supreme Court this year was presented with two very closely related cases under the 14^th Amendment concerning enrollment criteria in state universities.  Gratz v. Bollinger, Grutter v. Bollinger (2003).   Can the past evil of slavery and Jim Crow be exorcised by “affirmative action” in the way the government decides to divide its pie?   Most fundamentally, would such a policy of “reverse discrimination” by a State government not deny the equal protection of the laws to the members of the disfavored races in violation of the 14^th Amendment?

       The two cases before the Court involved the racial preferences expressed and practiced by the University of Michigan in accepting students. 

      First, a law school applicant who did not make it off the “waiting list” sued for losing her seat to racial preferences practiced by Dean Lee Bollinger of the Michigan Law School.  Two years later, several failed undergraduate applicants made the same complaint about the head of the University of Michigan, President Lee Bollinger.     

      Certainly Dean Bollinger thought he was, at least, being consistent.  There were only technical differences between the two “affirmative action” policies he applied for the university.  Both student bodies were composed of the desirable proportional numbers and, therefore, racially “diverse”.

      The way it turned out, the Michigan Dean had entirely lost touch with the law when he made the move to the much larger university office across campus.  Apparently, Dean Bollinger could use a remedial course in constitutional law.

     The Supreme Court held that the law school applicant could be racially discriminated against because the law school preferences only sought admission of a “critical mass“ of “underrepresented [racial] minority students”.  Although the head admissions officer of the law school acknowledged that he kept daily track of racial numbers while making decisions on applications, the question of race was not the “predominant factor” in admissions (academics squeaked by).

“racial and ethnic diversity with special reference to the inclusion of students from groups that have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in the student body in meaningful numbers.”

      Quite incredibly, this astounding claim of enduring racial inferiority in academics was found to be such a “compelling governmental interest” that it passed the “strict judicial scrutiny test” the 14th Amendment supposedly applies to racial classifications in the laws.

      Other than citing the Court’s equally imponderable predecessor case, Regents of California  v. Bakke (1987), Justice O’Connor, the famed middle-of-the-roader and author of the opinion of the Court, wrote little about the substance of the overpowering reasons racial discrimination has to be resorted to in state university admissions.  There were no sociology studies relied on.  No proof was mentioned that thirty years of “affirmative action” has been effective overall.  The obvious alternatives to racial discrimination were hardly mentioned.  The poll numbers of the American public, so widely keyed by observers of the Court, is not officially stated.  There was no evidence offered supporting the central premise of the ruling: certain racial groups by their nature are academically inferior and need the help of State officials and the members of the United States Supreme Court to get by.  No explanation is offered anywhere why the simple words of the 14th Amendment should not be followed: words that so clearly prohibit racial classifications in the law under any circumstances.   

     This insult to his heritage set off Justice Clarence Thomas: the sole black member of the Court.  In his dissent, Justice Thomas quite appropriately invoked the words of Frederick Douglass from 1865: 

“… Do nothing with us!  Your doing with us has already played the mischief with us.   If the Negro cannot stand on his own legs, let him fall.   All I ask it to give him the chance to stand on his own legs.   Let him alone.  Your interference is doing him positive injury.”

    In reply to the compelling government interest idea relied on by the majority on the Court, Justice Thomas observed:

“  Only 16% of Michigan law school graduates end up serving the citizens of the State of Michigan [in the practice of law]. ….  Today, the Court insists on radically expanding the range o permissible uses of race to something as trivial as the assembling of law school class.  There is no pressing public necessity in maintaining a law school at all…. let alone an elite one.” 

    After twisting the 14^th Amendment to allow state-sponsored racial discrimination, the Court’s docket moved on the case of the undergraduate applicants to Michigan U.  The main difference between the undergraduate policy and that of the law school was that a point system was used for racial preferences in the undergraduate program.  The calculation allowed favored minority applicants 20 bonus points out of a possible total of 150 points (170 points for certain minorities). 

   Chief Justice Rehnquist found several embarrassing “flaws” in the Michigan plan that was so based on cold numbers. 

    The plan effectively guaranteed admission to any minimally qualified favored minority applicant or transfer student while excluding large numbers of highly qualified applicants.  For instance, non-minority applicants with artistic talent as great as Picasso or Monet could only receive five points for extraordinary talent while all “African-Americans”, “Hispanics” and “Native-Americans” quintupled that score just by submitting an application.   

     With this formula, there were no flowery rationales available about the “character” and “achievement” of favored applicants that could lessen the stark reality of blatant racial discrimination.  Racism subjectively arrived at is not nearly as heinous as racism objectively arrived at by using a formula.  Therefore, the use of raw numbers crossed the Constitution’s limits.  It is just not sufficiently politically correct.

    Is that not typical?  The lawyers slide in their case because of the soothing sophistry they are able to muster for themselves.  The poor fools across campus who try to apply the lawyers’ words in a logical way are the only ones who the law says are on the side of racism.  In any event, that is what passes for the meaning of the 14^th Amendment in the Supreme Court these days.

     Dean Bollinger is far from the only person a bit baffled by all of this.  How can anyone other than the Supreme Court itself properly guess at what is constitutional and what is not if these two cases are to be the measuring stick to use.  One thing is certain.  The federal appeals courts will not be seeing another indelicate, direct numbers-crunching policy by state university admissions officers.  Does that mean that racial discrimination in university admissions is now always permissible so long as it is based on purely subjective formulations?   Is racial discrimination now permissible in all areas of public life so long as a “quota” is not openly imposed?  If not: Why not, if racial discrimination is permissible by a state official in making the most important decision there can be for someone trying to better oneself by getting a college education? 

    And what of the beneficiaries of state-sponsored racial discrimination in education and elsewhere?  How long must they wear the badge of inferiority?

    Once again, the Supreme Court has proven itself not prepared to accept the words of the 14^th Amendment when it comes to the legal equality of all citizens: a colorblind law.  The spirit of Frederick Douglass remains a distant hope even these many generations later after his life.

           The 2000 election was only the second time in American history that the Electoral College elected as President the candidate who received fewer votes than his opponent did.  Indeed, Al Gore received over half a million more popular votes for President than George W. Bush.  Forget the hanging chads in Florida!  How about fixing a rule in the Constitution that allows the loser to win?

         This election result passing with barely a peep of protest from the public proves again a remarkable principle.

        Anyone who has attended classes on government and the Constitution in our lifetime knows that a denial of the democratic will of the people by the Electoral College was bound to be a traumatic event in our history.  The press and the public were going to be up in arms.  The abolition of the Electoral College would be the quickest passed Constitutional amendment in history in the wake of the controversy.  Worst of all, the new President would lack all legitimacy.  He would possibly be forced to resign in favor of his rightly elected opponent.

        There was no more widely held conventional wisdom than this:  “The Electoral College is a Constitutional time-bomb that will lead to an unnecessary disaster if not abolished first.”

       Yet, George W. Bush, a supposed weak figure in the first place, overcame his poor outing at the polls without even breaking a sweat.  To the extent Al Gore is remembered two years later, it is with a sigh of relief.  No one knows or cares if Congress will even vote on abolishing the Electoral College.

       Whatever conclusions may be drawn from this about the American electorate (some highly unflattering), one point is made.  The more certain and long-lasting the conventional wisdom about the future may be, the more certain it is to be proven entirely wrong when the time does come.

       Remember the Soviet Monolith and the Y2K Armageddon?

(Note:  This newspaper all but predicted that 2000 was going to be the year for the Electoral College upset when this article was first promised in October, 2000. 

            The conventional wisdom teaches that George Bush the First lost the 1992 presidential election for two reasons.  He did not finish off Saddam Hussein in the first Gulf War and then he foolishly allowed taxes to be raised in order to stop federal deficits from spiraling further out of control.  If there is one thing that can be said about George Bush the Second while going into the 2004 presidential election, it is that the son is not going to repeat the sins of his father. 

            Now why would any President not finish off Saddam Hussein once you already had the U.S. army in country and ready to complete the job?  Indeed, when George I flinched, the Iraqi dictator had just committed a series of war crimes against Kuwait that should have landed him on the business end of the gallows.  Why, why just let Saddam off with economic sanctions and belligerent posturing?

            Because, thought George I, if Saddam were to fall, Iraq would become a battlefield between Sunnis, Shiites and Kurds: with everyone firing on the infidel invaders from the hated America.  Reconstruction?  Elections?  In Iraq?  There is not a chance on earth.  If you think a pluralistic society is right around the corner in Iraq, you need to know the people of Iraq more than you obviously do. 

         Not much of that old conventional wisdom crept into George II’s thinking about Gulf War II though.  George II could not allow the family to fall short a second time under any circumstances!  Saddam had to go no matter what!  Anything less was out of the question.  So, defeat the dictator, keep the casualties as low as possible and then leave quickly. .

            As one coalition soldier a day dies in occupied Iraq, as sabotage and looting afflict Baghdad and the oil fields, as the Shiites, Sunnis and Kurds lurch toward tribal warfare, the first election in Iraq seems a distant mirage.  Implosion, breakup, chaos, and then a brutally imposed order appear to be a far more likely outcome.  Does America’s army leave before, during or only after all of this?  Does it make a lot of difference?  How many hundreds of billions of US taxpayer dollars can be stuffed down this especially black hole?

            Sometimes, father does know best.  Do not step over a cliff unless you have a firm idea of how you will land on the other side.

          George II’s zeal for killing Saddam is almost equaled by his crusade to explode the federal budget.  There will be no bargaining by this administration with those who do not believe a great nation can borrow and spend their way out of massive debt.  Voodoo economics rules. 

            And how it does!  Tax cuts for the rich: free prescription drugs for the old: legions of new federal workers for homeland security: more tax cuts for the rich: expand agricultural subsidies: protect the steel industry: bail out the airlines: more tax cuts for the rich: money for the parents: money for the kids: money for the schools: more tax cuts for the rich: money for the war: money for the reconstruction and, finally, money for the poor at home (but only if Republicans can get one more round of tax cuts for the rich).  No wonder this federal budget year is likely at once to see the highest dollar increase in spending in our history along with the largest reduction in overall tax revenues in our history.  The result: a $500,000,000,000 plus deficit for fiscal year 2003: approaching twice the size of the previous record annual deficit set under George I during his last year in office.  At the present rate of spending and borrowing the combined terms of Ronald Reagan and the Bushes, the last sixteen years of Republican rule, will be responsible for over 98% of the national debt incurred over a period of 225 years.  Whatever ever happened to Republican conservative fiscal responsibility?

            Will the reckless spending of borrowed money pump up the economy in time for the 2004 election as the present Bushites hope?  Or will record fiscal irresponsibility in Washington so depress private investment and the value of the U.S. dollar that the national economy crashes into a deflationary depression not seen here since the 1930’s?  This is the second huge wager on America’s future George II and his servile Congress have already placed.

            When the father tried to switch from Ivy League banker to Texas wildcatter, he still could not help but remember how numbers are supposed to balance out at some point and that foreign wars are seldom good business for America.  When the son switched from tough guy, hard drinking cowboy to compassionate politician it was a different kind of incomplete transformation.  What George II has been unable to shake are the beliefs that a gunfight is always the best way to deal with mortal enemies and that bottles of nectar are made for draining empty.   

            Indeed, the father does know best.

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