Justice Breyer's retirement has initiated yet another season of political focus on the Supreme Court. Most of this will be political noise as whatever wise, brainy, and tactful Black woman who President Biden nominates and the Senate confirms will certainly be "highly qualified." Throughout its history, as Jamelle Bouie points out:
To be “qualified” for the Supreme Court is simply to be the right person for the political needs of the moment. ... The Supreme Court does not exist outside of ordinary politics, and the justices aren’t members of a secular priesthood.
The sacrificial nominee can expect to spend decades ineffectually refuting pseudo-legal nonsense propounded by the rightwing, anti-government, anti-common sense ideologues with whom Republicans have packed the institution.
When the rightwing Supremes endorse the right of states to force unwilling mothers to bear children and also to allow any nitwit to display their guns without limit (both expected by July), the new nominee won't even be on the bench yet. And in ways large and small, the Court shows every sign of diving deeper into shameful ignominy.
Of course, there has been plenty of Supreme Court ignominy before. In 2000, the Supremes decided on a pure party line vote that George W. Bush had defeated Al Gore for the presidency. The rationale was so paper thin that the decision insisted that their reasoning should not be used to establish any future precedent.
But as we enter Black History Month -- which is all of our history if we would but admit the obvious -- it's worth remembering that a validly seated, conventionally partisan, Supreme Court once ruled that persons of African descent could never have be a full citizen. The Court's 1857 Dred Scott decision is remembered for Chief Justice Taney's dictum that a black man "had no rights which the white man was bound to respect." But there was plenty more in that decision:
[The Declaration of Independence] proceeds to say: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them is life, liberty, and the pursuit of happiness; that to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed.”
The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration, for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted, and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.
Yet the men who framed this declaration were great men -- high in literary acquirements, high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others, and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery.
... No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.
I'm no lawyer, but that last section strikes me as a concise exposition of the judicial philosophy of hard-boiled originalism to which our modern berobed bigots claim to defer.
Revulsion against the Dred Scott decision was a factor in hardening northern opposition to continuing to exist as an enslaving nation. We fought a civil war, in part, over who could be a citizen.
Like the Republican Party from which it springs, the current Supreme Court is out of phase with the national majority and the trajectory of our society. We are moving ever further into a moment when the Court's legitimacy will be widely challenged. I do not envy whoever is the nominee.
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