There was a time in the United States when the only people to enjoy the rights of full citizenship, economic and educational opportunity, and bodily autonomy were affluent white men.
If the Supreme Court continues in its current direction, we are headed for that time once again.
Over the last decade, the Supreme Court has taken aim at the most fundamental, long-standing precedents that sought to remedy historic discrimination and injustices, many of them based on the Equal Protection Clause of the 14th Amendment. Holder v. Shelby County in 2013 gutted the Voting Rights Act and unleashed a flood of racially discriminatory voter suppression laws. Dobbs v. Jackson Women’s Health Organization last year stripped women of the right to make decisions about their own reproductive health.
Last month, Students for Fair Admissions v. Harvard, and Students for Fair Admissions v. University of North Carolina shut down a major pathway to college admission for Black and Latino students, and Biden v. Nebraska allowed the crushing burden of student loan debt to magnify the racial wealth and opportunity gap.
Taken together, these and other regressive, unjust Supreme Court rulings represent an astonishing rejection of the principles of racial and economic justice that guided the court for more than 60 years.
Although the 14th Amendment, which guarantees everyone “the equal protection of the laws,” was ratified in 1868, it took half a century for the Supreme Court to apply the equal protection clause to women, Black Americans, and other marginalized people.
In fact, the court based its notorious 1896 decision in Plessy v. Ferguson, which upheld the vile doctrine of “separate but equal,” on the 14th Amendment, paving the way for a century of legal segregation and discrimination. Only Justice John Marshall Harlan dissented, noting that the ruling blatantly contradicted its 1870 decision in Strauder v. West Virginia, which held that barring Black Americans from serving on juries was “an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.”
Harlan’s dissent laid the groundwork for the court’s decision nearly 60 years later in Brown v. Board of Education, the first major ruling that applied the equal protection clause to expand the rights of Black Americans.
A revolution to affirm rights
Brown v. Board was the opening victory in a “Constitutional revolution” under Chief Justice Earl Warren, who presided from 1954 to 1969. The Warren Court established the principle of “one person, one vote” to representation in Congress and state legislatures with its decisions in Baker v. Carr in 1962, Reynolds v. Sims and Wesberry v. Sanders in 1964. The court upheld the constitutionality of the Civil Rights Act of 1964 in Heart of Atlanta Motel, Inc. v. United States, and of the Voting Rights Act of 1965 in South Carolina v. Katzenbach.
It affirmed the right of married couples to use contraception in Griswold v. Connecticut in 1965, establishing a precedent for 1973’s Roe v. Wade decision legalizing abortion. It struck down laws banning interracial marriage with Loving v. Virginia in 1967, paving the way for national recognition of same-sex marriages, established in Obergefell v. Hodges in 2015.
Under Chief Justice Warren, the court wielded the 14th Amendment as an instrument of justice to expand civil rights and individual liberty and civil liberties. Under Chief Justice John G. Roberts, the court has twisted the amendment into an instrument of oppression.
Given the cloud of misconduct that hangs over a few of the current justices, it’s difficult to know whether these recent egregious rulings represent their true judicial philosophies — or the political and social goals of the billionaires whose largesse they have secretly enjoyed.
Activists who espouse unpopular agendas have long targeted the courts as an avenue to impose extremist policies on an electorate that rejects them at the ballot box. Those of us who espouse the principles that guided the Warren Court must act with equal urgency and intensity, before the ballot box no longer is an option.
Marc H. Morial is president and CEO of the National Urban League. He served as mayor of New Orleans from 1994 to 2002 and is a graduate of the University of Pennsylvania and the Georgetown University Law Center.
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