Opinion: Judges are playing the racist card
The job of the courts is to resolve disputes reasonably and thus maintain peace in our society. The preamble to the US Constitution states that one of its purposes is “to secure internal tranquility” and the federal courts were created for this purpose.
For this reason, it is appalling to find in recent opinions of the Supreme Court of the United States accusations that those who hold opposing views are not only wrong, but also racist. The opinions themselves touched on subjects that have no obvious connection to racism: the judicial review of the action of federal agencies and the constitutional right to abortion. And the opinions in question do not establish such a link. They just engage in schoolyard smear tactics.
In the federal agency case, the court ruled that a law allowing the EPA to develop a “better system” to reduce carbon dioxide emissions did not allow the EPA to set a conversion target coal-fired power plants with nuclear or solar sources. The court invented a new and controversial doctrine that allows courts to scrutinize agency action more closely whenever it touches on a “major issue” of political or economic importance. It was long thought that the job of judges was to deal with law and not politics, but that has apparently changed.
Judge Neil Gorsuch concurred with an opinion joined by Judge Sam Alito. Justice Gorsuch sought to explain how the “major issue” doctrine could be used to narrow what federal agencies can do. The opinion expresses a hostility to the regulation of federal agencies that has not been seen in the Supreme Court since the 1930s. Although it has long been accepted that Congress has created agencies staffed with technical experts to deal with problems that Congress can only solve generally, such as regulating the federal monetary system or ensuring the safety of food, drugs and consumer goods, the Gorsuch disparages the very idea that the expertise of the agency could be useful.
For example, he calls the civil servants who work in the executive “a ruling class of largely irresponsible ‘ministers'”. This is a strange statement for a Federal Court judge who enjoys a lifetime appointment and is accountable to no one. Civil servants are part of the executive branch which is, after all, responsible to Congress and to the voters who elect the president. The Supreme Court is responsible for neither.
But Judge Gorsuch does not stop there. His opinion begins his attack with a simple acknowledgment that others have said the agency’s expertise was useful. To this he adds a footnote citing an article that President Woodrow Wilson wrote on the value of expertise. But the footnote then dismisses what Wilson had said by suggesting that Wilson thought experts were needed because he believed voters were dumb, black people were ignorant, and people from southern Italy lacked intelligence.
It’s a cheap shot that doesn’t belong in a court opinion. Wilson’s argument, written in 1887 to encourage the development of a civil service system, was that where the people are sovereign, ignorant citizens must be educated before they want change. It does not challenge popular sovereignty. The need for a public office was born not out of voter ignorance but out of a desire to end a corrupt loot system. The agencies created during his later presidency, the Federal Reserve and the Federal Trade Commission, showed that his belief that federal agencies could improve government was justified.
And his comments on ethnic groups, written more than a decade later, had nothing to do with his argument for government expertise. In a history of the United States, he described uneducated freed slaves in the south in 1870 as ignorant and therefore subject to political manipulation. He did not apply this adjective to the whole race. And in describing immigration to the United States, he said that some immigrants were “lowest class men from southern Italy” who lacked intelligence, not that all southern Italians lacked intelligence. ‘intelligence.
The point is not that Wilson was progressive on the issue of race. He was not. Although he was an advocate for women’s rights and was the first president to speak out against lynching, he had common racial biases in his time and, as a Democrat, presided over the removal of some named African Americans from federal agencies. by the Republicans and the segregation of the Post and Treasury.
The point is, his biases had nothing to do with whether it made sense for Congress to delegate a wide variety of tasks to executive agencies, including protecting the environment from carbon dioxide and other pollutants.
The other accusation of racism is found in Judge Alito’s decision in the abortion case, Dobbs v. Jackson Women’s Health Organization. In a footnote, the opinion attacks proponents of abortion by suggesting they want to use it to suppress the size of the African-American population. Opinion says it does not agree with this view, but if the view is not refuted, why is it even expressed?
Judges consistently advise lawyers to argue their cases on the merits and avoid arguments that their opponents are bad people. Supreme Court justices would do a better job of ensuring domestic peace if they followed this example.
Luther Munford is a Northsider. He practiced law in Jackson for decades.