The lesson of the post-Reconstruction Supreme Court is that a determined Court majority can prove stubbornly resistant to short-term swings of political fortune. Even if Democrats win the next election cycle, and the one after that, an enduring conservative majority on the Supreme Court will have the power to shatter any hard-won liberal legislative victory on the anvil of judicial review. It will be able to reverse decades-old precedents that secure fundamental rights. It will further entrench the rules of a society in which justice skews toward the wealthy, and the lives of those without means can be destroyed by a chance encounter with law enforcement. It will do all these things and more in the name of a purely theoretical freedom, which most Americans will never be able to afford to experience.
“For large portions of American life people of color have been treated unjustly, and for most of that period the Supreme Court has found ways to rationalize that, and make us think that is consistent with promises of liberty and equality,” says the Harvard Law professor and legal scholar Randall Kennedy. “That’s what it’s typically done. Is it doing that today? Yup.”
The supreme court’s moments of majesty, such as Brown v. Board of Education, which outlawed segregated schools; and Loving v. Virginia, which struck down antimiscegenation laws; and even Obergefell v. Hodges, which legalized same-sex marriage, are few and far between. For most of its existence, the high court has been committed less to upholding the rule of law or the Constitution than to preserving its own legitimacy, unwilling to shield the powerless from the mob unless convinced that it has the political cover to do so. Like many things in America, the ideal rarely resembles the execution.
“We constantly romanticize the Supreme Court of the United States,” Kennedy says. “People think they have more rights than they actually have. They think something’s gonna happen and the Supreme Court’s gonna make things right. It’s just ridiculous.”
During Redemption, Southern white militants regained control of state governments across the South with murder and terror, successfully disenfranchising the newly emancipated slaves. The Republican Party relinquished its commitment to protecting the rights of black voters in the South, even though the party could not be viable there without them. Fearful that a weary nation was tired of expending blood and treasure for the benefit of people whom most whites considered only conditionally American, Republican lawmakers acquiesced to the creation of a separate and unequal society in the South.