The United States Supreme Court has now arrogated the power to act as a “super-legislature.”
Those who would say that the same thing occurred in the days of the New Deal make a misleading argument. The New Deal court sustained (supported) the legislature’s actions in creating programs to deal with the problems of the Great Depression.
The current Supreme Court struck down legislation designed to end systemic racism. In other words, the Court has arrogated the power to act as a super-legislature independent of the voter. In striking down affirmative action, the Court denies the legislature the capacity to deal with the consequences of systemic racism.
- Editor’s Note: Did anyone stumble on the word “arrogated?” I looked it up to be sure. It means to take or claim (something) without justification, e.g., “they arrogate to themselves the ability to divine the nation’s true interests.”
So what’s ‘systemic racism?” “Systemic racism” arose not only from the consequence of the nation forming itself as a slave society but also from the nation’s failure to deal with the consequences of that initial formation after the Civil War. The failure of Republican Reconstruction denied formerly enslaved people a way to make a decent living and created what we today call “systemic racism.”
The denial worked like this. Confining formerly enslaved people to work as sharecroppers and domestic servants created the conditions we now call “systemic racism.” It was perpetuated by New Deal legislation when agricultural workers and servants were excluded from the benefits of labor laws passed by the New Deal (minimum wage, working conditions, farm programs, redlining of neighborhoods, etc.).
- Editor’s note: For example, enslaved people were not allowed to sign up for the farm programs that were begun as part of the New Deal (and continued into the 1980s in some Deep South regions), so even if an enslaved person owned “40 acres” and a mule, he was not eligible for the programs that grew into today’s Farm Service Agency and Risk Management Agency. You could also call this the “inherited legacy of slavery” – no good jobs allowed, no property to will to your family, no good schools allowed.
FDR had no choice. Southern senators commanded the committees through which Roosevelt’s legislation had to pass. Had Roosevelt not accepted the exclusion of these categories of workers, New Deal legislation would never have made it out of committee. The result continued to be that formerly enslaved people were confined to poor wages and living in the community’s poor (low-income) sections. These low-income sections could only produce a low tax base. Low tax bases meant poor schools and education; poor education meant exclusion from the “better” colleges and universities. That translated into low-paying jobs – full circle, leading right back to where we started.
Moreover, it translated into poor streets, inadequate policing, and, often, higher crime rates. Consequently, significant companies were reluctant to open stores in black communities, e.g., major food department stores like Giant. And, no major food stores resulted in “junk food” stores dominating the eating habits of Blacks – and that translated into poor health, which resulted in high insurance rates unaffordable by many Blacks. “And so it goes.”
Affirmative action was designed to alter this vicious sequence of events.
Now, the Court has made it nearly impossible to deal with the question of “systemic racism.” This Court, in effect, reversed the decision in Brown v. Board of Education without actually considering it. Brown’s decision started the legislative effort to put an end to discrimination. “Brown’s” affirmative action grew from the effort to create fair opportunities for everyone.
Now, discrimination may still be unlawful – since the Court left us without any way of ending it. (It is interesting to note that affirmative action legislation was instituted under the administration of Richard Nixon. I never thought I would long for the Nixon days, but at least he only went after his political opponents and not the nation as a whole.)
Some people consider affirmative action a form of “reverse discrimination.” Still, until someone can provide me with a better plan for putting an end to the consequences of systemic racism, I am willing to accept it. The Supreme Court certainly did not do so – that a university can consider race as “one of many factors” in determining admissions is not an answer. It also means universities need not consider race at all. Incidentally, Mitch McConnell (and the Federalist Society) is responsible– not Donald Trump. McConnell was the first to undertake the task of putting justices on the Court who would overturn Roe. Trump followed his lead in nominating justices.
Now, for the most significant questions:
- Are there any laws, any portion of the Rule of Law (settled law), that this Court has respect for?
- How many centuries of legal decisions does this Court intend to roll back?
The direction today’s Count is heading is taking us back to when only white male property owners had the right to vote.