11:49am July 8, 2013

The New Tip of an Old Iceberg: The Roberts Court

Supreme Court

“I think it (reauthorization of the Voting Rights Act) is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement…Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process.”

—Justice Antonin Scalia Shelby County v. Holder Oral Arguments 2/27/13


ver since the first 20 and some odd African “indentured servants” disembarked from that Dutch man of war in Jamestown, VA in 1619, Africans in America and later African Americans have been engaged in a pitched battle with state governments and the national government to recognize and protect their human and civil rights and civil liberties.  All too often state legislatures, the national government and courts have failed to acknowledge and protect the fundamental humanity of those who have struggled through indentured servitude, lifelong servitude, Jim Crow, and now post-Jim Crow oppression in the United States.

In 1662 Colonial Virginian’s struggled to address the status of “…children got by Englishman upon a negro woman…” Should those children be slave or free?  It was determined by Act XII, December 1662 that “…all children borne in this country shall be held bond or free according to the condition of the mother…”  In 1667 the good Christians in Virginia struggled with the issue of does baptizing slaves alter that slave’s status?  It was determined by Act II September, 1667 “…that conferring of baptisme doth not alter the condition of the person as to his bondage or ffreedome.”  Finally, in 1669 Virginian’s determined that a slave master could not be found guilty of murder for the casual killing of a slave.  Act I, October 1669 it was determined “…if any slave resist his master…and as a result of the punishment should chance to die…that his death shall not be acompted ffelony…since it cannot be presumed that prepense malice…should induce any man to destroy his own estate.”

Whether it is the aforementioned actions by the Virginia Colony, the Three Fifth’s Compromise (Article I, Section 2), the Fugitive Slave Provision (Article IV, Section 2), Dred Scott v. Sanford(1857) or Plessy v. Ferguson (1896), American history is replete with examples of the states, courts, and the national government failing to protect the humanity, rights and liberties of African’s in American and later African Americans.

The most recent example of this complete and utter failure of judicial reasoning and the court’s unwillingness to protect the rights of African Americans is the Supreme Court striking downthe use of the map that determines which states must adhere to the preclearance provision of Section 5 of the Voting Rights Act of 1965.  The map determined which states must get federal permission before they implement changes to their voting laws. According to NBC News, “The ruling, a 5-4 decision by Chief Justice John Roberts, leaves the future of the law deeply uncertain because it will be up to a sharply divided Congress to redraw the map, if it can agree on one at all.”

Many court watchers and analysts are arguing that this most recent court term demonstrates as NPR’s Nina Totenberg writesthat the most recent decisions, “has Roberts steadily pulling the court to the right, acting strategically to achieve his conservative goals…”  In reality, Roberts is not pulling the court to the right.  Roberts is merely the culmination of a long history of conservative judicial activism that has been working since the Burger Court (1969-1986) to overturn the Civil Rights and civil liberty protections provided by the Warren Court (1953-1969).  The Roberts Court is the new tip of an old judicial iceberg.

The Warren Court is considered by many to have been the most “liberal” in the history of the Supreme Court.  Warren gave us the Brown decision in 1954, the exclusionary rule in Mapp v. Ohio in 1961to prevent tainted evidence from being used in court and demanding that police get warrants to conduct searches; our Miranda rights in Miranda v. Arizona 1966; and the right to counsel in state cases Gideon v. Wainwright (1963).

Since the Warren Court, the Burger Court, the Rehnquist Court, and now the Roberts Court (2005 – present) have worked to overturn judicial precedent in the areas of protections for criminal defendants (US. V. Leon (no relation) 1984 and Nix v. Williams 1984), they have tilted the scales in favor of the police and prosecutors (Wyoming v. Houghton 1999 and Hudson v. Michigan 2005), and have made it more difficult to use racial statistics to show bias in death penalty cases (McCleskey v. Kemp 1987).

Now with the recent decision in Shelby County v. Holder the Roberts Court has continued the conservative assault on Civil Rights as he and his henchmen have ignored the facts of voter suppression outlined in Voter Suppression in 2012; Past is Prologue. Roberts wrote, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions…” Yes, Congress must ensure that legislation speaks to current conditions but the Court must also stand by the precedent established and protect the rights of voters who have historically been and are currently targets of state actors who’s sole aim is to deny people the right to vote based on race, age, and other factors that tend to indicate party affiliation.

If, as Roberts wrote, “There is no doubt that these improvements are in large part because of the Voting Rights Act…The Act has proved immensely successful at redressing racial discrimination and integrating the voting process” then why did he choose to strike it down?  Justice Scalia provided great insight into their mind set when he stated in oral arguments, “I think it (reauthorization of the Voting Rights Act) is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement…” And as his predecessor Chief Justice Roger Taney wrote in Dred Scott v. Sanford (1857), a Black man has no rights that a White man is bound to respect “…slaves like land and tools, were nothing more nor less than private property belonging to their owners, not human in the legal sense.”


Chief Justice John Roberts has not decided to move the court to the right.  He’s the culmination of a long history of ultra-conservative reactionary judicial activism.  He’s just the new tip of an old iceberg.


Dr. Wilmer Leon is the Producer/ Host of the Sirisu/XM Satellite radio channel 110 call-in talk radio program “Inside the Issues with Leon” Go to www.wilmerleon.com or email:wjl3us@yahoo.comwww.twitter.com/drwleon and Dr. Leon’s Prescription at Facebook.com

© 2013 InfoWave Communications, LLC

About the Author

Dr. Wilmer Leon
Dr. Wilmer Leon
Dr. Wilmer Leon is the Producer/ Host of the Sirius/XM Satellite radio channel 126 call-in talk radio program “Inside the Issues with Wilmer Leon” Go to www.wilmerleon.com or email:wjl3us@yahoo.com. www.twitter.com/drwleon and Dr. Leon’s Prescription at Facebook.com



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