What If The Greatest Obstacle to Justice in America Was...The Supreme Court Itself?

Receipts show the current Court's right wing extremist rulings are not aberrations, but manifestations of SCOTUS history—and that must change

What if the right wing extremism we’re seeing out of the Supreme Court is not an aberration, but a manifestation, of Supreme Court extremism throughout U.S. history? Let’s Address This.

Current Supreme Court Justices. [Credit Supreme Court Website]

The New York Times reports that on January 17, 2021—just days before President Biden was sworn in and shortly after the January 6 insurrection—an upside down U.S. flag flew outside Justice Alito’s home. An upside down flag has come to represent the “Stop the Steal” movement—a right wing conspiracy that claims that the 2020 election was stolen. (It was not). Meanwhile, Justice Thomas’s wife Ginni actively worked the insurrection to try and violently overturn the 2020 election.

A photo obtained by The New York Times shows an inverted flag at the Alito residence on January 17, 2021, three days before Joe Biden’s inauguration. Credit: The New York Times

As a case involving the insurrection and Presidential immunity is scheduled to appear before the Supreme Court, it does not bode well that at least two of the justices already support the insurrectionists. Surely, such outrageous conflicts and right wing views are an unprecedented aberration of the US Supreme Court, right?

What if the scary part were the opposite, that such right wing views—contrary to the Constitution, contrary to the will of the American people, and contrary to the tenets of democracy—have largely been the norm throughout American history? And what if what Justices Thomas and Alito are exemplifying is in reality a return to corrupt historical Supreme Court extremism?

Well, that’s the case I make below, and I bring the receipts to prove that point exactly.

In reality, SCOTUS has (almost) never reflected the will of the majority of American people. In fact, it has most often blocked what Americans want and voted for. And while no one article can do justice to a history that began on March 4, 1789 when the Supreme Court was first established, this snapshot provides a clear picture of what we’re up against, and why this is unsustainable.

Let’s start in 1857 with Dred Scott v. Sanford. SCOTUS ruled 7-2 that Black people are subhuman and therefore cannot be citizens. This ruling prevented a peaceful or legal solution to ending slavery, and historians cite this case as one of the final straws that likely enabled the eventual Civil War. At least 600,000 soldiers died in the Civil War, and to subsequent Jim Crow laws and their harm reverberate to this day.

Dred and HarriettScott [Credit: NPS.Gov]

In 1883 the Court advanced this racist policy with The Civil Rights Cases. Most Americans don’t realize that some 90 years before the 1964 Civil Rights Act, Congress passed the Civil Rights Act of 1875 to mandate equal justice for Black Americans. Instead, SCOTUS ruled 8–1 that the Civil Rights Act of 1875 was unconstitutional, and that the 13th and 14th Amendments did not actually provide equal protection to Black people. Hence Jim Crow laws were not only valid, but now had full mandate to strengthen and advance as Black Codes. This barbarity would stay on the books until 1964, devastating generations of Black Americans.

In 1896 the Court further enforced Black Codes under Plessy v. Ferguson. SCOTUS ruled 7-1 that mandatory racial segregation was not in violation of the 14th Amendment. This further advanced Black codes, Jim Crow, economic, housing, and educational disenfranchisement, and further strengthened the KKK and white supremacy. The KKK grew so powerful as a result of rulings like Plessy, that by 1920 they were 4 million member strong, and at least 1 in every 11 white Americans was a card carrying member.

Credit: Harvey Fireside

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But Qasim! Some might argue. That was a long time ago in the 19th century! Surely you can’t be serious that the 20th and 21st century was that bad?

In response I’d say, I am serious, and don’t call me Shirley. And keep reading to see.

In 1918 the Court embraced child abuse via child labor in Hammer v. Dagenhart. SCOTUS ruled 5-4 that Congress could not ban child labor in intrastate commerce, calling it a "states rights" issue. Sound familiar? As we see labor cases come before SCOTUS today, and see GOP led states pass laws enabling child labor, remember this history of enabling child labor and child abuse. Again, what we are seeing today is not new, but a revival of yesteryear extremism.

In 1924 the court targeted Asian Americans directly in Thind v. United States. SCOTUS ruled unanimously, 9-0, that though a Sikh American named Bhagat Thind was Aryan per the U.S. then phrenological and eugenicist pseudoscience definition of white, he did not meet a "common sense" definition of white, and therefore could not be a citizen. This ruling helped uphold a 1924 total ban on all Asian immigration. That ban would remain on the books for another 41 years until the 1965 Immigration and Nationality Act ended these racist race based quotas. It’s worth noting that for much of American history, while Black, Latino, and Asian immigration was heavily restricted or outright banned, white European immigration was largely encouraged via open borders. But that’s an article for another time.

Bhagat Singh Thind [Credit: The Pluralism Project at Harvard University]

The 1927 the Court continued its eugenics streak in Buck v. Bell. SCOTUS ruled 8-1 to uphold a Virginia eugenics law targeting Black people. States nationwide would then adopt this ruling and craft their own state laws. As a result, more than 60,000 Black women, men, and children as young as 10 were forcibly sterilized—which we now recognize as a textbook definition of genocide. Perhaps just as horrifying is that as of 2024 Buck v. Bell remains valid Supreme Court precedent as no subsequent SCOTUS ruling has ever overturned it.

In 1944, while American soldiers fought fascism abroad, the court ruled in favor of fascism in Korematsu v. United States. SCOTUS ruled 6-3 to uphold President FDR's Executive Order 9066 that forcibly interned 120,000 Japanese Americans. Though America was at war with Japan, Germany, and Italy—only Japanese Americans suffered mass arrest and deprivation of property. In broad daylight, our government spoke of the evils of Hitler’s concentration camps, while placing American citizens in concentration camps of our own—reminding everyone once more that Hitler got his ideas for concentration camps from the British Boer camps and from American Jim Crow. (The must read book on this topic is Hitler’s American Model by Professor James Q. Whitman).

Fred T. Koremotsu [Credit: SFUSD.edu]

In 1986 the Court ruled in Bowers v. Hardwick to condemn queer Americans. SCOTUS ruled 5-4 to uphold a Georgia statute criminalizing even private LGBTQ relationships. Though finally overruled in Lawrence v Texas in 2005, anti-sodomy laws still exist in several states, anti-LGBTQ violence and rhetoric remains at record highs, and it is getting worse.

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Far from improving significantly over the 19th century, in the 20th century the Supreme Court openly supported white supremacy, abusive child labor practices, anti-Asian immigration bans, eugenics, genocide, fascism, and anti-LGBTQ bigotry. And while we celebrate the Civil Rights acts passed in the 20th century, we’ve seen a massive regression of those very laws in the 21st century. So, if you thought the 21st century Court was better than past eras, read on, because sadly, it isn’t.

In 2000 the Court ruled on Bush v. Gore, denying American people their vote. SCOTUS ruled 7-2 in favor of GW Bush, handing him the presidency. This was despite Al Gore winning the popular vote by more than 500K votes. Bush then bankrupted our surplus, cut billionaire taxes, left America trillions in debt, and waged two failed wars that cost more than $6 trillion and killed tens of thousands of American soldiers and hundreds of thousands of Afghan and Iraqi civilians. I bring up Bush’s atrocious record not to play Monday morning quarterback, but to point out the consequences of the Supreme Court installing someone the American people voted against.

In 2008 the Court voted to devastated our climate and prop up corporate corruption in Exxon Shipping Co. v. Baker. SCOTUS ruled 5-3 to protect Exxon from punitive damages in which a drunk operator spilled 11 million gallons of oil into an ecological sensitive sound. SCOTUS dropped the fine from $5 billion to only $500 million, boosting Exxon's value by $23 billion. It is worth nothing that Justice Alito owned Exxon stock and profited massively from the Court’s ruling.

In 2010 the Court helped ensure we’d never have a free and fair election again by ruling on Citizens United v. FEC. SCOTUS ruled 5-4 that the First Amendment protects political donations as "free speech," opening elections to billions in dark money to buy and sell politicians. Though an astounding 83% of Americans—Republicans, Independents, and Democrats alike—want corporate money out of politics, SCOTUS does not care. As a result of this overt power to buy elections, billionaires spent $1.2B in the 2020 election, which is an astounding 70 times more than what they spent in the 2008 election—pre-Citizens United. The Court’s ruling has ensured corrupt corporate funded politicians stay in power with ease, State and Congressional level gerrymandering becomes the norm, and gives the wealthy a nearly insurmountable advantage to stay in office.

In 2013 the Court further eroded our elections in Shelby County v. Holder by stripping down voting rights. SCOTUS ruled 5-4 to gut the Voting Rights Act of 1964—specifically provisions that prevented historically discriminatory states and counties from disenfranchising BIPOC voters. Unsurprinsgly, after Shelby, red states closed thousands of polling locations in disproportionately BIPOC neighborhoods, affecting turnout and flipping elections red. GOP states have subsequently introduced hundreds of voter suppression bills, passing dozens, further marginalizing Black, brown, and low income voters.

In 2016 the Court advanced government tyranny in Utah v. Strieff. SCOTUS ruled 5-3 to permit police to admit evidence, even if it was procured by illegal searches—despite 4th Amendment ban on illegal government searches. This ruling particularly targets BIPOC communities who already face at least six times higher charge/arrest rates than do white Americans. Now, police officers can more easily procure evidence through illegal means, blurring the line between the right to privacy, and making it more difficult to stop bad police actors from planting evidence or even targeting citizens in violation of the Fourth Amendment.

In 2018 the court advanced religious bigotry in Trump v. Hawaii. SCOTUS ruled 5-4 to uphold Trump's racist & discriminatory "Muslim Ban." A ban he admitted was designed to cause as much harm as possible, and one he could not prove had any national security value. So much for US Constitution's ban on religious tests.

In 2021 the Court shockingly defended child slavery in Nestlé USA, Inc. v. Doe I. SCOTUS ruled near unanimously, 8-1, that children kidnapped, enslaved and forced to go to the Ivory Coast to produce for American corporate giants like Nestle, could not sue Nestle for damages for enabling child slave labor. Yes, it is as horrific as it sounds. Nearly 175 years after ruling in Dred Scott that enslaved Black people are subhuman and therefore unworthy of protection from exploitation by American corporations, the Court found a way to rule in Nestle that enslaved African children are unworthy of protection from exploitation by American corporations.

And in 2022 the Court undid half a century of precedent in Dobbs v. Jackson Women’s Health Organization. SCOTUS ruled 6-3 that women do not have autonomy over their own bodies. The Court repealed Roe—despite 72% of Americans favoring Roe, despite all the data that abortion bans do not decrease abortion rates but increase maternal mortality by 24%. The Court repealed Roe, despite four justices—Alito, Gorsuch, Kavanaugh, and Barrett—affirming that they viewed Roe as settled law, settled precedent, and the law of the land.

And who knows how the Court will rule on the question of whether the President has unlimited immunity? Indeed, the 21st century SCOTUS has largely continued the SCOTUS trend of the 19th and 20th centuries of ruling against the will of the American people, and in favor of the wealthy and powerful. In addition to overturning presidential elections, stripping down voting rights, destroying our climate, devastating the right to privacy, and destroying personal bodily autonomy, SCOTUS in the 21st century has also further enabled wrongful incarceration, further dissolved religion/state separation, further decreased safety from gun violence, further enabled discrimination for being Queer, stripped down affirmative action and racial justice in education and the work place, and further harmed economic justice for students suffering under predatory loans.

I could go on.

But I believe I’ve made the point. And history reminds us what’s at stake. When the Court overruled the 1875 Civil Rights cases, it took nearly a century—until 1964—for those rights to finally be codified once more. Now, only 60 years later those rights are once again being stripped down piece by piece—by the Supreme Court no less. Who knows how long it will take us to recover? Indeed this is why the late great John Lewis said:

Ours is not the struggle of one day, one week, or one year. Ours is not the struggle of one judicial appointment or presidential term. Ours is the struggle of a lifetime, or maybe even many lifetimes, and each one of us in every generation must do our part.

Whether by organizing, donating, volunteering, voting, or combatting disinformation, or all of the above, let us do our part to protect and preserve our democracy for this generation, and the next. Because far from protecting our rights, we can tragically only count on the current Supreme Court to be among the greatest obstacles to justice in America.