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These Terrible Walls

Updated: Oct 1, 2020

Photo: Wiki Commons

So far, I have written for this blog about an old racist with a big ship named after him and a bunch of Klansmen with military training doing pretty much exactly what you would expect. I don’t know if two posts are enough to establish a trend, but I promise we’ll get back to our regularly scheduled programming soon. However, the devastating passing of an absolute icon of American Jurisprudence and the predictable and lamentable turn to discussing the political ramifications of it made me change my plans for this month’s post.

This post is not about her, and a hundred thousand much better writers than I have said more than I ever could about the legacy of Ruth Bader Ginsburg. However, I would be remiss not to acknowledge the huge impact that she had on the law in this country. To mention

just a few of the touchstone decisions she was involved in: she authored the opinion striking down a prohibition on women attending the Virginia Military Institute; she helped protect people with mental illnesses from being denied community housing under the ADA; and she famously dissented in a number of high profile cases like Shelby County v. Holder, in which the conservative majority on the court struck down a key provision of the Voting Rights Act. She was a progressive champion, and we will miss her dearly.

I want to go back to a time when Ruth Bader Ginsburg was still just a professor at Rutgers. It was 1968, and Lyndon B. Johnson’s Vice President, Hubert Humphrey, was fighting what looked to be a losing battle for the presidency with former conservative VP Richard Nixon. At the time, the Supreme Court was made up of Chief Justice Earl Warren, and Associate Justices Hugo Black, Byron White, Abe Fortas, William O. Douglas, John Marshall Harlan II, Potter Stewart, Thurgood Marshall, and William J. Brennan. Of that group, Black and Douglas were FDR appointees and New Deal crusaders, White was appointed by JFK, and Johnson appointed Fortas and Marshall. Warren, Harlan, Stewart and Brennan were named to the court by Dwight D. Eisenhower. However, despite being a put on the court by the conservative General Eisenhower, Warren presided over what is known as the most progressive court of the modern era, and perhaps in US History.

Warren, seeing the writing on the wall for the Kennedy-Johnson era, knew that one of Nixon’s top priorities would be the Supreme Court. At 78 years old, Warren decided it would be in the interest of preserving his legacy and vision to step aside and allow LBJ to nominate a new Chief Justice who could guide SCOTUS through the Nixon era. LBJ nominated Abe Fortas to be the new Chief Justice, and Homer Thornberry to take Fortas’ seat. Thornberry was a JFK era democratic congressman, before being nominated to the US District Court for the Western District of Texas, and then the US Court of Appeals for the Fifth Circuit. He would have been a fairly progressive addition to the highest court in the land, had conservatives in the Senate (led by notorious racist and sex pest Strom Thurmond) not organized an extremely hostile resistance to Fortas’ nomination that would ultimately lead him to withdraw his own nomination. By the time all of this happened, LBJ was gone and Nixon got to appoint the extremely conservative Warren Burger to be the next Chief Justice.

The Chief Justice holds significant sway over the direction of the court, but because Fortas retained his seat as an Associate Justice, the court still had a progressive majority. Nixon, being Nixon, was happy to engage in unsavory tactics to remedy that. Sensing blood in the water after the messy spectacle that was Fortas’ confirmation hearings, Nixon directed J. Edgar Hoover (you know, the COININTELPRO guy. What, you thought I was going to go a whole post without old racist dirtbags engaging in militant bigotry? Not a chance.) to engage in a full-court press against Fortas, accusing him of several ethics violations of questionable validity, eventually leading Fortas to resign from the court entirely. Another conservative, Harry Blackmun, was nominated to replace him after (ironically, considering the obstructionism conservatives had just engaged in with Fortas) both the nominations of Clement Haynsworth and Harrold Carswell failed.

September has a history of being a deeply consequential month for the Supreme Court. Nixon, having already had two appointments to the Court in his first two years in office, got two more opportunities that month. On the 17th, Justice Hugo Black retired from the Court after being hospitalized. Two days later, he had a stroke and eventually died on September 25th. Two days before Black’s death, and three months before his own death from spinal cancer, Justice John Marshall Harlan II also retired from the Court due to failing health. Nixon nominated Lewis F. Powell and William Rehnquist to replace Black and Harlan, respectively. With only Douglas, White, Marshall, and the second Eisenhower appointee to turn liberal, William J. Brennan, the progressive era of the Supreme Court was over.

There is a wonderful book by Adam Cohen called Supreme Inequality that outlines in detail how the next 50 years would be defined by conservative dominance of the judiciary, and it really is worth checking out to really understand the gravity of the situation we are in now. The current President has already confirmed two justices to the Court. While both were simply maintaining the ideological balance, we now face a situation in which a progressive will be replaced by another conservative, giving the court a 6-3 conservative majority. This is a five-alarm fire.

I want to close with two thoughts. First, note that I wrote that a progressive “will be replaced.” I want to emphasize here that we should not be distracted by or focused on preventing the confirmation of Amy Coney Barrett. While there could be a Nixon-style campaign against Brett Kavanaugh by an incoming administration, I am 100% certain that every single republican senator save for Lisa Murkowski would literally fall on a sword before doing anything to obstruct this nomination (and yes, I know what Susan Collins said- but we’ve heard that joke before). Naming conservatives to the federal courts at every level has been the top priority for republicans since the Warren Court outlawed segregation. They do not care if it will lose them their upcoming elections, they do not care if they are called out as hypocrites every day for the rest of their lives. This is their main objective, and it is right within their reach.

The second thought I’ll leave you with is where I turn this from doom-and-gloom to a pep-talk. There is exactly one thing that we can do to stop the Supreme Court from becoming an instrument of fascism, and that is to hold the House, take back the Senate, take the White House, and push all of our elected representatives to reform the Court. Whether it is expanding the court, instituting term limits, or all of the above and then some, we have an opportunity to take all of our energy and all of our rage, tear down the institutions that have been overtaken by bigotry and greed, and build something truly egalitarian. Like LBJ said, “the vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men.” So, grab a hammer, and let’s tear these damn walls down.


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