[Dialogue] It's Not up to the Court

[Harry Wainwright]

Published in the November, 2005 issue of the Progressive
<http://www.progressive.org>  

It's Not up to the Court 

by Howard Zinn 

 

John Roberts sailed through his confirmation hearings as the new Chief
Justice of the Supreme Court, with enthusiastic Republican support, and a
few weak mutterings of opposition by the Democrats. And in nominating
Harriet Miers, Bush is trying to put another right-winger on the bench to
replace Sandra Day O'Connor. This has caused a certain consternation among
people we affectionately term "the left." 

I can understand that sinking feeling. Even listening to pieces of Roberts's
confirmation hearings was enough to induce despair: the joking with the
candidate, the obvious signs that, whether Democrats or Republicans, these
are all members of the same exclusive club. Roberts's proper "credentials,"
his "nice guy" demeanor, his insistence to the Judiciary Committee that he
is not an "ideologue" (can you imagine anyone, even Robert Bork or Dick
Cheney, admitting that he is an "ideologue"?) were clearly more important
than his views on equality, justice, the rights of defendants, the war
powers of the President. 

At one point in the hearings, The New York Times reported, Roberts "summed
up his philosophy." He had been asked, "Are you going to be on the side of
the little guy?" (Would any candidate admit that he was on the side of "the
big guy"? Presumably serious "hearings" bring out idiot questions.) 

Roberts replied: "If the Constitution says that the little guy should win,
the little guy's going to win in court before me. But if the Constitution
says that the big guy should win, well, then the big guy's going to win,
because my obligation is to the Constitution." 

If the Constitution is the holy test, then a justice should abide by its
provision in Article VI that not only the Constitution itself but "all
Treaties made, or which shall be made, under the Authority of the United
States, shall be the Supreme Law of the Land." This includes the Geneva
Convention of 1949, which the United States signed, and which insists that
prisoners of war must be granted the rights of due process. 

A district court judge in 2004 ruled that the detainees held in Guantanamo
for years without trial were protected by the Geneva Convention and deserved
due process. Roberts and two colleagues on the Court of Appeals overruled
this. 

There is enormous hypocrisy surrounding the pious veneration of the
Constitution and "the rule of law." The Constitution, like the Bible, is
infinitely flexible and is used to serve the political needs of the moment.
When the country was in economic crisis and turmoil in the Thirties and
capitalism needed to be saved from the anger of the poor and hungry and
unemployed, the Supreme Court was willing to stretch to infinity the
constitutional right of Congress to regulate interstate commerce. It decided
that the national government, desperate to regulate farm production, could
tell a family farmer what to grow on his tiny piece of land. 

When the Constitution gets in the way of a war, it is ignored. When the
Supreme Court was faced, during Vietnam, with a suit by soldiers refusing to
go, claiming that there had been no declaration of war by Congress, as the
Constitution required, the soldiers could not get four Supreme Court
justices to agree to even hear the case. When, during World War I, Congress
ignored the First Amendment's right to free speech by passing legislation to
prohibit criticism of the war, the imprisonment of dissenters under this law
was upheld unanimously by the Supreme Court, which included two presumably
liberal and learned justices: Oliver Wendell Holmes and Louis Brandeis. 

It would be naive to depend on the Supreme Court to defend the rights of
poor people, women, people of color, dissenters of all kinds. Those rights
only come alive when citizens organize, protest, demonstrate, strike,
boycott, rebel, and violate the law in order to uphold justice. 

The distinction between law and justice is ignored by all those
Senators-Democrats and Republicans-who solemnly invoke as their highest
concern "the rule of law." The law can be just; it can be unjust. It does
not deserve to inherit the ultimate authority of the divine right of the
king. 

The Constitution gave no rights to working people: no right to work less
than twelve hours a day, no right to a living wage, no right to safe working
conditions. Workers had to organize, go on strike, defy the law, the courts,
the police, create a great movement which won the eight-hour day, and caused
such commotion that Congress was forced to pass a minimum wage law, and
Social Security, and unemployment insurance. 

The Brown decision on school desegregation did not come from a sudden
realization of the Supreme Court that this is what the Fourteenth Amendment
called for. After all, it was the same Fourteenth Amendment that had been
cited in the Plessy case upholding racial segregation. It was the initiative
of brave families in the South-along with the fear by the government,
obsessed with the Cold War, that it was losing the hearts and minds of
colored people all over the world-that brought a sudden enlightenment to the
Court. 

The Supreme Court in 1883 had interpreted the Fourteenth Amendment so that
nongovernmental institutions hotels, restaurants, etc.-could bar black
people. But after the sit-ins and arrests of thousands of black people in
the South in the early Sixties, the right to public accommodations was
quietly given constitutional sanction in 1964 by the Court. It now
interpreted the interstate commerce clause, whose wording had not changed
since 1787, to mean that places of public accommodation could be regulated
by Congressional action and be prohibited from discriminating. 

Soon this would include barbershops, and I suggest it takes an ingenious
interpretation to include barbershops in interstate commerce. 

The right of a woman to an abortion did not depend on the Supreme Court
decision in Roe v. Wade. It was won before that decision, all over the
country, by grassroots agitation that forced states to recognize the right.
If the American people, who by a great majority favor that right, insist on
it, act on it, no Supreme Court decision can take it away. 

The rights of working people, of women, of black people have not depended on
decisions of the courts. Like the other branches of the political system,
the courts have recognized these rights only after citizens have engaged in
direct action powerful enough to win these rights for themselves. 

This is not to say that we should ignore the courts or the electoral
campaigns. It can be useful to get one person rather than another on the
Supreme Court, or in the Presidency, or in Congress. The courts, win or
lose, can be used to dramatize issues. 

On St. Patrick's Day, 2003, on the eve of the invasion of Iraq, four
anti-war activists poured their own blood around the vestibule of a military
recruiting center near Ithaca, New York, and were arrested. Charged in state
court with criminal mischief and trespassing (charges well suited to the
American invaders of a certain Mideastern country), the St. Patrick's Four
spoke their hearts to the jury. Peter DeMott, a Vietnam veteran, described
the brutality of war. Danny Burns explained why invading Iraq would violate
the U.N. Charter, a treaty signed by the United States. Clare Grady spoke of
her moral obligations as a Christian. Teresa Grady spoke to the jury as a
mother, telling them that women and children were the chief victims of war,
and that she cared about the children of Iraq. Nine of the twelve jurors
voted to acquit them, and the judge declared a hung jury. (When the federal
government retried them on felony conspiracy charges, a jury in September
acquitted them of those and convicted them on lesser charges.) 

Still, knowing the nature of the political and judicial system of this
country, its inherent bias against the poor, against people of color,
against dissidents, we cannot become dependent on the courts, or on our
political leadership. Our culture-the media, the educational system-tries to
crowd out of our political consciousness everything except who will be
elected President and who will be on the Supreme Court, as if these are the
most important decisions we make. They are not. They deflect us from the
most important job citizens have, which is to bring democracy alive by
organizing, protesting, engaging in acts of civil disobedience that shake up
the system. That is why Cindy Sheehan's dramatic stand in Crawford, Texas,
leading to 1,600 anti-war vigils around the country, involving 100,000
people, is more crucial to the future of American democracy than the mock
hearings on Justice Roberts. 

That is why the St. Patrick's Four need to be supported and emulated. That
is why the GIs refusing to return to Iraq, the families of soldiers calling
for withdrawal from the war, are so important. 

That is why the huge peace march in Washington on September 24 bodes well. 

Let us not be disconsolate over the increasing control of the court system
by the right wing. 

The courts have never been on the side of justice, only moving a few degrees
one way or the other, unless pushed by the people. Those words engraved in
the marble of the Supreme Court, "Equal Justice Before the Law," have always
been a sham. 

No Supreme Court, liberal or conservative, will stop the war in Iraq, or
redistribute the wealth of this country, or establish free medical care for
every human being. Such fundamental change will depend, the experience of
the past suggests, on the actions of an aroused citizenry, demanding that
the promise of the Declaration of Independence-an equal right to life,
liberty, and the pursuit of happiness-be fulfilled. 

Howard Zinn is the co-author, with Anthony Arnove, of "Voices of a People's
History of the United States.
<http://www.amazon.com/exec/obidos/ASIN/1583226281/commondreams-20/ref=nosim
> " 

C 2005 The Progressive 

### 

 

 

Peace,

Harry

 

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