UCLA National Black Law Journal Title The Viability and Reliability of the U.S. Supreme Court as an Institution for Social Change and Progress Beneficial to Blacks - Part II Permalink https://escholarship.org/uc/item/4c3948j6 Journal National Black Law Journal, 3(1) ISSN 0896-0194 Author Tollett, Kenneth S. Publication Date 1973 Peer reviewed eScholarship.org Powered by the California Digital Library University of California THE VIABILITY AND RELIABILITY OF THE U.S. SUPREME COURT AS AN INSTITUTION FOR SOCIAL CHANGE AND PROGRESS BENEFICIAL TO BLACKS - PART 11* By KENNETH S. TOLLETT Distinguished Professor of Higher Education Howard University, Washington, D.C. It is the part of a wise man not to bewail nor to deride, but to understand. -BARUCH SPINOZA' I. INTRODUCTION Before undertaking the above major task, the perspective and methodology of THE WARREN COURT generally was an the writer need expansion and clarifica- instrument of social change and progress tion. First, the writer consciously and beneficial to Blacks.' However, the Unit- critically scrutinizes the Court, its ed States Supreme Court as an institution members, and its decisions in terms of historically has not served an especially their purpose, operation, and effect or beneficial role in the lives of Blacks. The impact vis A vis the Black masses. Court, like all other major institutions in Nevertheless, the writer's legal and other America, has reflected much of the over- academic training and many of his in- all racism of the society at large.' The tellectual tools and modes of analyses are Warren Court moved the Court in a sig- Western or white nurtured. nificantly different direction from its past Second, emphasis is given to five by liberally interpreting and applying the methods or themes in analyzing consti- doctrines of judicial review,4 actively tutional law data and phenomena. They recognizing egalitarian humanism and 5 * This is the second and final installment of a two-part article projecting individual integrity, and boldly affir- the direction in which the Nixon-Burger Court is moving. For the first ming the positive content and worth of installment see,Tollett, The Viability andReliability ofthe U.S. Supreme 6 Court as an Institution for Social Change and Progress Beneficial to American citizenship. The major task of Blacks, 2 Black L. J. 197(1972); hereinafter cited as Tollett, Viability and this paper is to compare the Nixon- Reliability of U.S. Supreme Court, 2 BU 197(1972). The research assistance of Ms. Marta Berkley. a third year law student Burger Court's performance with the at Howard University, and the partial support from the Faculty Warren Court's performance in these Research Program in the Social Sciences, Humanities and Education at Howard University are gratefully acknowledged. areas and project the future direction in I. Quoted in Goodwin, The Supreme Court: Viable Fallibism or Fatal which the Nixon-Burger Court is mov- Infallibility, 23 Vand. L. Rev. 251, 252 (1970). 2. Tollett, Viability and Reliability of the U.S. Supreme Court, 2 BLJ 197 ing. The completion of this task will sug- (1972). gest the viability and reliability of the 3. See, Bums, Can a Black Man Get a Fair Trial in This Country? NY. Times, July 12, 1970(Magazine) at 5. Haywood Burns, Director of the Court as an institution for social change National Conference of Black Lawyers writes: and progress beneficial to Blacks. Al- "From the very first, American law has been the handmaiden of American racism. It has been the means by which the generalized though the evidence is mixed and is racism in the society has been made specific and converted into the not overwhelming, the preliminary ver- particularized policies and standards of social control." Id. 4. Tollett, supra note 2, at 201-205. dict from the Black perspective is that the 5. Id. at 205-208: 215-218. Court has some viability and little 6. Id at 218-219. The Court reinforced its recognition of equality by ex- panding the concept of state action and removing restrictions upon the reliability. power of Congress to enforce civil rights. Id. at 209-211; 211-215. PAGE 6 THE BLACK LAW JOURNAL are contextual analysis, biography, in- poses that the Nixon Administration has tellectual integrity, label logic or concep- corrupted language and perverted law tualism, and activism versus restraint. and order, and has the stench of scandal.9 Contextual analysis emphasizes the The hypothesis posits that the Presidency historical, economic, political and so- is the beneficiary of a malignant sym- cial setting of Court decision-making. biosis. On the one hand, the President is Biographical analysis concerns the spe- behaving and becoming king-like which cial impact of the Court's personnel means he and especially those in high (their socio-cultural and eco-political places closely associated with him feel backgrounds) upon decision-making. In- they are above the law and governmental tellectual integrity involves the issue of tradition. On the other hand, the general intellectual honesty and neutrality of public yearns for and needs some major principle in the decision-making process. institutional structure which it can res- Label logic or conceptualism signifies the pect, trust, and have faith in. The special mode of reasoning most fre- President, whoever he is, is the ben- quently practiced by the Court in dis- eficiary of this need and yearning. posing of constitutional controversies. Thus, he and many closely associated Thus, decisions are largely based upon with him feel they can get away with verbal labels or characterizations of is- practically anything, whether it is bomb- sues and facts. Activism and restraint in- ing and killing in Indochina," bugging volve the questions and issues of how and eavesdropping in the Watergate,' or actively or aggressively the Court should impounding and reallocating money in pursue some idea(s) of progress and jus- the Treasury. 2 That which is corrupt or tice in its decision-making process. perverse or smells in the Nixon Ad- The above five methods or themes of ministration is overlooked, rationalized, analysis indicate the awesome complex- or disbelieved by the general populace. ity and difficulty of rigorous analysis. Indeed, it appears that the racist and an- Rarely, if ever, are all five themes or ti-Black implications of a movement methods pursued both thoroughly and toward a second post-Reconstruction are simultaneously. Each method or theme warmly approved and embraced by the may be regarded as an element in a ma- majority of the white populace. trix for the explication of a decision, a The relationship of this hypothesis to group of decisions, a term, or an era. A the Nixon-Burger Court and to the mixture of intuition, judgment, time Nixon appointed Justices in particular is limitation, resources, and analytical util- ity determines which method or com- 7. Tollett, supra note 2 at 198. 8.Id at 197. bination of methods or themes is pursued 9. Id.at 98. most thoroughly. 10. "Prior to the renewed bombing, no U.S. military commanders were expressing any fears of a new North Vietnamese assault.Infact, there Third, reference must be made to the was widespread agreement that the North had lost so many troops (an hypothesis set forth in the first install- estimated 120,000) and so much equipment and had been so badly 7 battered in the past eight months that it would take a minimum of a ment of this article which purported to year and a half for them to rebuild their forces. explain the popularity of the Nixon Ad- "Thus the current bombing campaign, in the opinion of many of these sop officials. is essenmialfy a political opea'fion. That may be a ministration and the meaning of which valid use of military power, as some see it,but it is not the way it is might directly or indirectly influence the being explained publicly. M. Getlcr. Bombing: the Damage at Home, The Washington Post. Nixon-Burger Court. The hypothesis was December 24.1972, at DI. and is largely the product of contextual 1I."Denials and Still More Questions." Time. October 30,1972, at 18-19. See also,Bernstein and Woodward. "Bugging 'Participant' Gives De- analysis. It practically supposes that the tails," The Washington Post. September 11.1972, at Al. "FBI Finds Nixon Administration is implicated "in Nixon Aides Sabotaged Democrats." The Washington Post, October 10. an apparent movement toward a second 1972, at Al. 8 12. L. Cannon, "Nixon Defends Funds Impoundment." The Washington post-Reconstruction." It further sup- Post, February I, 1973. at A12. THE BLACK LAW JOURNAL PAG E 7 THE BLACK LAW JOURNAL PAGE 7 problematical and only can be discussed that he has two 'green' Justices who are with great delicacy and circumspection. unfamiliar with Court customs, is trying The worst that can be said has already to arrogate new powers to himself"" been written, namely, "Chief Justice Although it may be a bit ungracious for Burger and his Nixon-appointed as- some Justices to think Burger is a bit sociates .. [are] weather vanes who will pompous because he comes and goes in a point the Court in whatever direction limousine driven by an armed chauffeur Nixon winds blow and backlash and has installed expensive plastic plants counter-currents fl'w."'3 However, the in front of the Court, it is a serious matter worst said is incomplete, ambulatory, that last Term (mid-April, 1972) "the and not entirely true. Nixon appointees U.S. Supreme Court suffered its first constitute only four justices of the nor- known racial incident."' 9 Justice Thur- mally needed five-man majority. Nixon good Marshall felt he had been racially appointees serve for life, but Nixon slighted because after the Chief Justice serves, and thus his winds will blow, only postponed a conference date, which presumably for four more years.