Good Should The Supreme Court Abandon The Use Of Scrutiny In The Civil Rights Movement? Essay Example
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If any of the federal anti-discriminatory laws in the United States, originally designed to protect African-Americans from racist oppression and unfair treatment in the country, actually ever worked – it was by pure serendipity. The problem of the color line, as the great sociologist, thinker, and pioneer W.E.B. DuBois put it, is the great “problem of the Twentieth Century” (4). Finding oneself in the Twenty First Century today, the ‘problem’ still seems to persist, ever finding ways to be swept under the rug and ignored, reconstructed in an all-inclusive verbiage of so-called ‘multiculturalism,’ or simply disdained as a non-existent phenomenon of yesteryear. In other words, popular culture in modern America does not want to engage in conversations pertaining to racism because many falsely insist that we currently are living in a post-racial society. To mention or introduce anything as being the fallout of racism, you are more than likely to be told that you are supposedly ‘playing the race card’. If indeed to mention racism one is justly accused of playing the ‘race-card’ what about the rest of the deck so stacked against it? Obviously given the history of this country, federal laws and Supreme Court decisions were necessary to accommodate a people to be legally declared citizens with the de facto rights to vote (initially for men), and later with Brown v. Board of Education to freely attend public schools. John Calvin once wrote that conscience “acts as an inward witness and monitor,” that “points out the distinction between good and evil,” and that humankind has been immured in the darkness of error” self-blinded with “arrogance and ambition” (317). If it is possible for a nation to have a conscience, then something has gone deeply wrong with morality, when normal participation must become an antagonistic fight. Many people died to achieve equality for African-Americans’ civil rights.
This essay discusses if the Supreme Court should abandon its use of scrutiny, in terms of the Civil Rights movement. The response to that holds no easy answers. It is a mixed bag at best, and an endless conundrum at worst. Certainly and undoubtedly there is no way to approach the topic without a strong historical background. However, the attempt herein seeks to present a cogent if not convincing analysis of the situation. Although it is true that the intention of this essay is not a mere description, the beginning of it must try to explain how the legal terminology of scrutiny applies in the courts. Following a brief description of its merits, the discussion will leap into the latest major Supreme Court decision which was recently handed down. According to a press release from Harvard Law School, it “suspended an important and effective tool that has been available to justice officials since 1965 in their efforts to eradicate voter discrimination in the United States” (“Press Release, Supreme Court Suspends Key Tool”). Laws can be tricky, and sometimes have a way of looping around the slippery slope of morality. As a wise person once noted that everything political will always distill into a law, and all laws are a result of politics.
According to US Law Essentials, their documentary video explains that strict scrutiny, or intermediate scrutiny, help determine why the government passed the law in the first place and “what are the methods that the law uses to achieve the government purpose” (“What are strict scrutiny”). Without delving into a boring and prosaic litany of legalese, in a nutshell, the courts use scrutiny to help establish whether or not there had been a violation of Constitutional rights. Any legal dictionary will inform that scrutiny forms its basis upon the Equal Protection clause, commonly known as the main component of the 14th Amendment to secure protection of citizen rights. Let us review the history and originating purpose of the 14th Amendment, shall we? A public broadcast documentary recalls, it “was one of three amendments to the Constitution adopted after the Civil War to guarantee black rights,” specifically granting full citizenry privileges to the former enslaved (“Jim Crow – Fourteenth Amendment”). The Fifteenth specifically granted black ex-slave men the right to vote. Two important reasons correlate to how the Supreme Court recently struck down the 1965 Voting Act. First, its passage did not automatically grant that black men could vote, due to the persecutions and rampant murders coupled with silly regional voting statutes designed to ‘disqualify’ black people. The second reason why this fact is foundational to the analysis is because myriad groups have jumped on the bandwagon, over the years, to enthusiastically claim the federal protections historically put in place for black people. We must not become confused. This factor is critical to retain during the discussion. This is not to suggest that other groups who have benefited from the same federal Constitutional protection should not be afforded those rights, however the forebears of black people have built the foundation of the United States’ economy without ever receiving compensation, while simultaneously having been denied full participation in every area of human activity.
As the nation was being reconstructed under the auspices of President Lincoln, during the era around the time of the Civil War, only whites were allowed the vote. On June 25, 2013 five members of the Supreme Court, as Mike Sharpe expresses it in his article, “gutted the Voting Rights Act of 1965 by voiding Section 4(b) that requires preclearance of changes in state voting rights laws by the Justice Department” (108). Basically what this means is that previously, under provisions of the Voting Act of 1965 any entities with a history of discrimination must receive oversight by the Justice Department to change/make any laws or statutes pertaining to voting procedure, summarized by Roland Martin (“Washington Watch Voting Rights”). Martin explains that nine states had been desiring to rescind the pertinent section of the Voting Rights Act of 1965 for a long time, and includes the following states of: Alaska, Alabama, Arizona, Georgia, Louisiana, South Carolina, Mississippi, Virginia, and Texas. Their argument was that racism does not exist anymore in voting procedures, because since there is a black President now, and the Ku Klux Klan is no longer killing black people, those protections are obsolete. Roland Martin makes a point that many black people died for the right to vote, and have also fought in every war that the United States ever authorized. Additionally, he argues that black Supreme Court Justice is an embarrassment to hurt the rights of his own people.
Aside from these arguments, many feel that there is a political backlash emerging from the fact that so many African-Americans came out to vote for President Obama, and are angry. Common observations will attest, whether one voted for President Obama or not (or agree, or disagree with some of his policies) that it is almost rarely that he is addressed as ‘President’ Obama, and nearly routinely as only ‘Obama’ or ‘Barack Hussein’ as if to refuse him the title. While it is true that legitimacy has been challenged, in terms of his birthplace, other Presidents have had their sins. Yet despite any circumstances, they were always addressed by their titles. Returning attention to how the Supreme Court struck down an important part of the Voting Act of 1965 is very important. The entire law was not done away with, obviously. Sharpe explains that the part struck down had its purposes bound in preventing “discrimination in redistricting, in relocating polling places, or in voter ID laws by state legislatures,” however, the Justice Department “can intervene after the fact” (108). In other words, if the political powers-that-be in Texas decide to redistrict and re-draw the lines in county, city, or state hinterlands it can change the outcome of votes dependent upon the racial demographics involved. The process can be tricky, because it is not a matter of simply drawing the redistricting lines along ‘race’ per se but perhaps by income levels or tax levels. So for instance, imagine a poor district is re-drawn based upon the tax base of that city, county, or unincorporated region. If they base the redistricting on a very low tax-based status, then you automatically know that particular region is black. Also, there are other ways besides redistricting that regulators can amend voting statutes and local policies so pertaining. For example, they can demand voting-card IDs and attach lengthy registration processes to it, as well as fees. During the time in the 1950s, in the pre-Civil Rights era, it was common practice according to one woman this writer had known, to require African-Americans to take a literacy test. Of course, if you could not read or had not attended a school in which you were properly taught, you would fail the ‘test’ and not be allowed to vote. That aside, it was no easy picnic for the Supreme Court Justices to arrive at their decision, because they were starkly divided in their opinions. According to Adam Winkler the final ruling was “bitterly divided” and that the Voting Act had Section 5 and Section 2 to contend with (“Supreme Court’s Ruling and the End of the Civil-Rights Era”). Section 2 had nothing to do with the ruling. Section 5, Winkler explains “by contrast, works as a prophylactic measure, stopping discrimination before it can occur” (“Supreme Court’s Ruling and the End of the Civil-Rights Era”). Sharpe describes the scenario from a different perspective.
Mike Sharpe takes the conversation to a level wherein an awareness of historical events is called to mind. Sharpe argues that the Supreme Court move “wrongly assumed that voting restrictions had been thrown into the junkyard of history,” and pointed out a very interesting factor. Immediately after the verdict handed down by the Supreme Court majority, Sharpe noted that “Texas, South Carolina, Mississippi, Alabama, Arkansas, and Virginia moved to create new voting restrictions. On whom? Minorities, the young, the elderly, and the poor. That is, disproportionately on blacks” (108). The overall gist of Sharpe’s input into the conversation is that racism still is very much alive and well, and that said lights into a discourse of commentary on the Trayvon Martin case to make a point. He conveys that during the trial of George Zimmerman in the murder of the unarmed black youth, Trayvon Martin, that so-called ‘race’ was not an issue. The core issue surrounded the contention of whether Zimmerman had a right to ‘stand his ground,’ as Sharpe continues to mention the “400 years of” racist-profiling history as well (108). Sharpe emphatically pursues “Did Trayvon Martin have a right to stand his ground? Maybe use his bag of Skittles as a weapon? Of course not. Never mind that Zimmerman got out of his car and followed Martin around, contrary to police instructions to stay put” (108,109). Sarcastically put, Sharpe states that slavery and racism just do not count, nor all the years of Jim Crow, lynching, and segregation. Yet, the question still remains in all this whether the Supreme Court should abandon the usage of scrutiny in the Civil Rights movement, or not.
It is almost a moot question of inquiry. In other words, it seems like a situation of: damned if they do, or damned if they don’t. Just given the factor that the Supreme Court was so vehemently divided on the decision speaks volumes. In discussing court cases pertaining to racial discrimination in situations of affirmative action, Bedi observes that the Supreme Court sees the Fourteenth Amendment as logically appealing “to individuals rather than a particular group or class” (312). Perhaps this is where the problematic distinctions lay. Because if the distinctions can simply boil it down to infractions against individuals, then any arguments or rightful claims of discrimination as a group based upon skin color prejudice and ethnicity can be invalidated, or ignored by the jurisprudence system. When this happens, black people become effectively stripped of all federal legal powers of protections and must fight individually in any court case pursued. More than likely such a battle would be lost due to the stronger position of whomever a single party would be up against. See the problem? Furthermore, Bedi discusses his opinion that a higher level of scrutiny can be triggered with either class and “classification” enter the equation (314). The higher level of scrutiny does not seem to work in favor for continuing the protection of civil rights for African-Americans. One infamous case in contending a situation of race-based affirmative action in the universities, made headlines in California and nationally as well. The case involved a white student, Bakke, Bedi explains “a white male applicant whom the school rejected, instituted the legal action” and claiming ‘reverse-discrimination’ (315). Oddly enough however at the time of Bakke’s rejection from the University of California at Davis (UC, Davis) according to Bedi, there were “four unfilled minority quota spots” still available (315). His plea outraged black people all over the country because Bakke claimed the program’s focus upon a group was unconstitutional. In the end, the Court agreed with more than likely the help of applying a higher level of ‘scrutiny’ which did not turn out so well, in terms of maintaining hard-won justices from the Civil Rights movement.
If you think about it and review the facts from a reasonable and logical standpoint, Bakke was simply angry that black people were smarter than he, and able to receive an excellent opportunity. One must clearly remember that the ‘quota-system’ as some disdainfully enjoy to refer to it as, only permitted qualified African-American students to participate and compete on a level playing field, barring discrimination. So, it was not a favoritism kind of advancement at all. Bedi explicitly comments regarding the Regents of the University of California v. Bakke Supreme Court case that “According to the Court, it makes no difference whether the law discriminates against a disadvantaged minority such as a racial minority, or a privileged majority such as whites” (316). There is something very wrong with this picture, in a country whose legacy has been one of racist violence and historically one of unequal demonstrations in guaranteed protections – from both a de jure and de facto perspective. Since Supreme Court decisions set the tone and precedence for future legislation and political climate, this opened wide the door for similar unethical backlashes against African-Americans getting ahead educationally, professionally, or otherwise. It served as a signal for weakening any progress gained from the previous Civil Rights movement, stomping efforts back into the ground, only to try and start fighting all over again for what should have been mitigated from the beginning. Therefore, Bedi posits that strict scrutiny has had an undermining effect on racial equality, and states “This is the cost of deploying strict scrutiny for all laws that facially discriminate on the basis of race” (317, 318). One can start to understand that whether the Supreme Court abandons the use of scrutiny or not, in terms of the Civil Rights movement, politics and legal decisions can be very tricky.
Given the heinous nature of the Jim Crow laws, or Black Codes close to the antebellum slave era and thereafter, one could hardly believe that the racial climate would voluntarily evolve into a more ethical political one. The Encyclopedia of Louisiana gives a cursory account of what some of the Jim Crow laws were like. What is so amazing is that the black slaves were mandated not to read. As a legal statute therefore, by the time rolled around when the enslaved were legally free, they could not advance so rapidly due to the oppressive legal system as reflecting the vicious political climate of white supremacy. So, with the strict racially segregated landscape there were effectively two nations – very separate, and most assuredly unequal in every way. In fact, African-Americans legally could not borrow money to finance a new business, the codes also “determined the types of businesses” that they could own (“Jim Crow – (1865-1970)”). Other parts of the Black Codes dictated a stipulation that “no more than three African Americans could ever assemble in one place, and gave whites legal authority over blacks when no police officer was present,” and such (“Jim Crow – (1865-1970)”). In returning to thoughts on the Supreme Court overturning part of the Voting Act of 1965, one might wonder what one of the dissenting Justices had to say. Interestingly enough, Winkler reports that “in dissent, Justice Ruth Bader Ginsburg argues that covered jurisdictions still attempt to implement discriminatory voting rules,” citing examples in Georgia, Mississippi, and South Carolina. The Mississippi town in question actually canceled an election, according to Justice Ginsburg, after “African- American candidates announced that they were running for office,” while a “2003 attempt by a South Carolina county to switch to at-large elections” occurred when black people won a school board majority ("Supreme Court’s Ruling and the End of the Civil-Rights Era”). Civil Rights, as an era may have come to an end, but African-Americans continue their struggle for equal treatment under the law.
In perusing the timeline of historical facts, it is noteworthy to offer the following. According to one chronology of Civil Rights related occurrences while Elizabeth Cady Stanton attended the First Women’s Rights Convention in 1848, the Dred Scott decision denied a black slave the right to sue for his freedom because he lived on ‘liberated’ soil (“Civil Rights Chronology”). According to the same source, in 1867 Chinese railroad workers struck for demanding better salary, and one woman was burned to death by whites in Montana in order to steal her gold. The timeline chronology continues, citing the fact that Marian Anderson “African American contralto” was barred from the “Daughters of the American Revolution from singing in Washington D.C.’s Constitution Hall,” (“Civil Rights Chronology”). If you think about it, the idea is ironic that this renowned opera singer was barred by the organization when her ancestors had actually participated in the building architecture and labor of the Capitol. In the press release by Harvard Law School regarding the Supreme Court decision attached to the retracting some portion of the Voting Rights Act of 1965, Charles J. Ogletree had this to say, “This disappointing decision either misreads, or ignores, escalating efforts across the country to deny access to the voting booth to people of color, poor people, the young and elderly. We need to expand, not cut back,” on voter protections (“Press Release, Supreme Court Suspends Key Tool”). Also, just as was suspected and aforementioned in this paper, identification cards for voting have been implemented so far by the trio of states: Texas, Pennsylvania, and South Carolina. The Harvard Law School reported an analysis which “found that these individuals had to pay between $75 and $368 for documentation, travel, and waiting time” which effectively adjusts for inflation of a higher costs “between seven and 136 times” the poll tax demanded of black would-be voters in Civil Rights times (“Press Release, Supreme Court Suspends Key Tool”). Apparently, it seems to make little difference whether the Supreme Court should or should not abandon the use of scrutiny, in connection with the Civil Rights movement.
The reason why is because not much has changed. Laws seem to find ways to bend to the favor of those in power, regardless of how unjust or blatantly imbalanced. Young men of color continue to be legally slaughtered on the streets by police, even though they are unarmed. And now poor people, and African-Americans will need to pay high fees to vote in several states, with no federal protection in place to halt the practice beforehand. The more things change, the more they seem to stay the same – or just change the masks on their faces.
TheAdviseShowTV. “Voting Rights Act of 1965 Struck Down by the Supreme Court.” Online video clip. YouTube. YouTube, 26 Jun. 2013. Web. 16 Mar. 2015.
Bedi, Sonu. “Collapsing Suspect Class with Suspect Classification: Why Strict Scrutiny Is Too Strict And Maybe Not Strict Enough.” Georgia Law Review 47.2 (2012): 301-368. Academic Search Complete. Web. 17 Mar. 2015.
Calvin, John. Institutes of the Christian Religion. [Translated by Henry Beveridge]. Grand Rapids: Eerdman’s Publishing Company, 1989. Print.
Civil Rights Chronology.” Civilrights.org Civil Rights 101, n.d. Web. 16 Mar. 2015.
“Jim Crow (1865-1970).” Knowla.org Encyclopedia of Louisiana, n.d. Web. 16 Mar. 2015.
“Jim Crow Stories – The Fourteenth Amendment Ratified (1868).” Pbs.org Public Broadcasting.
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DuBois, W.E.B. The Souls of Black Folk. Cambridge: University Press John Wilson and Son, 1903. Print.
Martin, Roland. “WASHINGTON WATCH: Voting Rights Act and Voting Rights May Be Struck Down by the Supreme Court.” Online video clip. YouTube. YouTube, 25 Feb. 2013. Web. 16 Mar. 2015.
“Press Release Tuesday, June 25, 2013 Supreme Court Suspends Key Tools for Enforcing Voting Rights.” Charleshamiltonhouston.org Institute for Race & Justice, 2013. Web. 16 Mar. 2015.
Sharpe, Mike. “What Don’t You Understand about Racism?” Challenge (05775132) 56.5 (2013): 108-112. Business Source Complete. Web. 16 Mar. 2015.
“The Supreme Court – Expanding Civil Rights.” Pbs.org PBS Educational Broadcasting Corporation, 2007. Web. 16 Mar. 2015.
USLawEssentials. “What are the strict scrutiny, intermediate scrutiny, and rational basis.” Online video clip. YouTube. YouTube, 15 Apr. 2014. Web. 16 Mar. 2015.
Winkler, Adam. “The Supreme Court’s Ruling and the End of the Civil-Rights Era.” The Daily Beast. The Daily Beast Company LLC, 25 June 2013. Web. 16 Mar. 2015.
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