Surprise! a conservative court

The Supreme Court special, institutional role is to protect minorities and preserve the democratic process. That's what John Hart Ely says in Democracy and Distrust and the supreme court said in the famous footnote four of Carolene Products.

Guess what? The whole thing is bogus and founded on a rosy picture of history. The institutional role of the Court is to create the appearance of of fairness and democracy while supporting the interest of the elite in maintaining the status quo.

Let's begin at the beginning. Article III of the constitution creates the Supreme Court and provides procedures for the selection of Justices. The Justices are appointed during "good behavior" (ie for life) and are selected by the President. The president, in turn is selected by electors. The electors are selected by the state legislatures. the state legislators are selected by the people. The constitution places the supreme court four delegated steps away from democracy, and provides that once selected they are entirely unaccountable. Impeachment is not available for political purposes, only for high crimes and misdemeanors. Why is the Supreme Court deliberately undemocratic and unaccountable? The federalists were afraid that the rabble would take control of the representative bodies, and wanted to ensure that the elites were entrenched in the courts.

Fast-forward to reconstruction. The legislatures, in an extraordinary moment of true republican zeal, undertook a far-reaching plan to overhaul society to be more fair to the newly freed slaves. However, they feared the courts would interfere, so they passed the 14th amendment, guaranteeing equal protection of the law, even state law, and giving congress the power to enforce equal protection throughout the nation by legislation.

The court responded. They first limited the 13th amendment to a strict, formalistic interpretation of "involuntary servitude." Then they interpreted the fourteenth amendment to apply only to "political" laws like jury duty, rather than "social" laws segregation.

the civil rights cases - limited the 14th amendment to "state action" and preventing the federal legislature from regulating private discrimination.

Plessy. Needs no introduction.

The fourteenth amendment was designed to change society, but the court interpreted it to preserve as much as possible Slaughterhouse Cases. The amendment was designed to break down the caste structure that kept poor, black, former slaves beneath white masters. It was interpreted by the court to apply only to government action and only to political, explicit disadvantaging of black people in the letter of the law.

Plessy has overtones of Dred Scott; there is a sense of fatalism about social equality. According to the court, if black people think that segregation makes them unequal, it is only because they feel unequal, because the law separates both white from black and black from white symetrically.

Of course, segregation was not equal and not intended to be equal. But that didn't bother the court, they were only concerned with maintaining the appearance of equality.

This is only the most obvious example. Throughout history, Dred, Plessy, Lochner, Hammer v. Sidway, Brown (II), Bakke, Gratz, The courts have interpreted the constitution to appear fair, rather than to mandate justice! This continues in all areas of constitutional law, from the first amendment rights of corporations and the wealthy, to the "symmetry" of equal protection, to the on-again-off-again deference of Chevron, the law is skewed toward the elites and shielded by the rhetoric of rights and precedent.

The court is concerned with what O'Conner (in casey) calls "institutional legitimacy." It must be extremely true to precedent, particularly in rhetoric, in order to maintain the appearance that court decisions are fair and just. In most cases, precedent = status quo, which is convenient for the elites. More importantly, however, legitimacy SHOULD NOT be an ends in itself.

"Legitimacy" is an information cost, a screen between the court and justice. Let the court make it's decisions openly, reasoning explicitly from policy and good sense, then we will evaluate these decisions on the merits of justice, not on some false appearance of fairness.

Should the courts protect the marginalized and ensure a working democratic process? sure, why not? everyone should! But it is hardly within their special expertise. The expertise of the court has long been ensuring the fair appearance of federal institutions, while maintaining the oppressive position of the elites in the status quo.

Activists should not pin all their hopes on the Court, (or legislature for that matter) but on their own power to change society. Litigation and legislation are better at slowing change than encouraging it; make sure to include direct action!