Joel Jacobsen

In a hotel workout room, trying desperately to find something to watch that was more interesting than a treadmill, I ran across a CNN segment about Jeffrey Toobin's CNN show about judges.  (Asking if it was a news segment or a promo would imply there's a difference.)  There, exuding unearned complacence through half-closed eyes, was Justice Breyer, who told us that criticizing judges was a recipe for majority oppression of minorities.  He reminded us of Orville Faubus, and Toobin played along by inserting a clip of federal troops escorting the Little Rock Nine to school.

But - of course - Faubus wasn't defying the Supreme Court.  Or rather, he wasn't only defying the Supreme Court.  He was defending the Supreme Court, too.  It's just that he chose to defend the Supreme Court of 1896 rather than the newly-reconstituted Court of 1954, or rather the "all deliberate speed" Court of 1955.  Faubus was either a racist pig or shameless opportunist, or both, but he rather than the Warren Court had the weight of American judicial history on his side.

(Here's the evangelical origins of that famous oxymoron, deliberate speed.  The original isn't exactly great literature, but the irony at least was deliberate, unlike the wishy-washy Court's uncredited borrowing.)

The Civil Right struggle against Jim Crow is always the last resort of the defender of judicial supremacy, and frequently the first resort, too.   I always wonder if people who use it, such as Breyer, are aware of their self-contradiction.  Based on many dreary years trying to figure out what Breyer is saying in his opinions, I'm inclined to think the answer is no - he just isn't capable of thinking very clearly about anything.  (And why should he?  He's fabulously wealthy and rose to the top of a profession he practiced for only a couple of years in his youth - pretty sweet.)

But the rest of us should remember that the Supreme Court's three most consequential gifts to the American people are the Dred Scott decision, worked out in collusion with the man almost unanimously accepted as the worst President of all, the measure by which all subsequent bad presidents will forever be measured; the case that decreed that the privileges and immunities clause of the 14th amendment could not be enforced in American courts, a decision that has never been overruled (the ironic history of that case is described in this superb book); and 1896's separate-but-equal Plessy decision, which marked the Supreme Court's final surrender of the Union victory in the Civil War.

By 1896, the justices had returned American society to its pre-Civil War condition, minus only the kind of slavery memorialized in deeds of sale.  For justices to invoke the Court's involvement in American apartheid in defense of its power ought to, at least, provoke a certain cognitive dissonance.  It's another State of Denial in American public life.

Breyer's words translate into: "It took us 60 years after Plessy to acknowledge our own depravity.  It's taken the next 50 years for the other branches of government to make significant progress in cleaning up the mess we made.  That makes us such a powerful force for the moral good that we get to do whatever we want."