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Viability and Reliability of the U.S. Supreme Court As an Institution for Social Change and Progress Beneficial to Blacks

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Viability and Reliability of the U.S. Supreme Court As an Institution for Social Change and Progress Beneficial to Blacks THE VIABILITY AND RELIABILITY OF THE U.S. SUPREME COURT AS AN INSTITUTION FOR SOCIAL CHANGE AND PROGRESS BENEFICIAL TO BLACKS By KENNETH S. TOLLETT Distinguished Professor of Higher Education Howard University, Washington, D.C. The research assistance of Ms. Maria W. Berkley, a third year law student at Howard University, is gratefully acknowledged. I. ginia, a conservative, who had practiced law for Introduction only four years; Senator Robert Byrd, Democrat of West Virginia, a former member of the Ku Klux Klan, who hadn't practiced law at all; Mildred T MAY BE TOO EARLY to Lillie,a controversial California State Judge; and project the Herschel Friday, a bond lawyer who had repre- direction in which the Nixon-Burger sented the Little Rock, Arkansas, school board in its efforts to resist school desegregation. But all Court is moving. President Nixon has ap- four were shot down by the American Bar Asso- ciation and others in the legal profession. The Ad- pointed four of the presently sitting nine ministration announced that the ABA would not be consulted in the future ... Nina Totenberg of justices.' Chief Justice Burger is just be- the National Observer, who has a fine eye for such things, reported during the uproar over the Presi- ginning the fourth term of his helmsman- dent's putative nominations: 'The Supreme Court Justices reacted too. Justice Harlan, often described ship of the floating Court. The Court ap- as the Court's conservative conscious, was so out- raged that he seriously considered writing the Pres- pears somewhat adrift, sometimes chart- ident a letter of protest from his hospital bed. The seven active Justices were extremely perturbed. ing a course back toward the nineteenth Even the more conservative Justices began wonder- ing aloud whether the President was trying to century and at other times, maintaining 'denigrate the Court' ...."Washington: The Nixon Court," The Atlantic Monthly, November, 1972 the liberal-progressive course of the War- at 10. On October 21, 1971 President Nixon went on TV and ren Court. In appraising the Nixon- announced that he was nominating to the Supreme Court Lewis F. Powell, Jr., of Virginia, a former Burger Court, a sensitive Black lawyer president of the American Bar Association, and Wil- liam H. Rehnquist of Arizona, an extremely conserva- must guard against the paranoiac pro- tive lawyer who served the Nixon Administration ever since it came to power as assistant attorney general in clivity of indicting it by association, that charge of the Office of Legal Counsel. After protracted Senate hearings and controversy, especially over Rehn- is, critically associating it with the Nixon quist, both were confirmed by the Senate and there- after on January 7, 1972 took office. Administration's complicity in an appar- ,.A The Nixon Administration's opposition to busing which the Supreme Court has said may be necessary to im- ent movement toward a second post-Re- plement the School Desegregation decision, infra note constructionla 4, and its fraudulent attack upon quotas for hiring and its corruption of lan- women and minorities in the federal government for which there are no quotas, reinforce the Southern Strategy, undermining the egalitarian values of the De- I.Warren Burger was nominated to the United States segregation decision and signaling a watering down of Supreme Court by President Richard Nixon on May 21, "affirmative action" programs to hire minorities. The 1969. He was confirmed by the United States Senate affirmative action program is administered by the Civil on June 9, 1969. He was commissioned, took oath, and Service over government jobs, by Health, Education assumed the Chief Justiceship on June 23, 1969, the and Welfare over colleges that accept federal grants, same date Chief Justice Earl Warren retired. and by the Labor Department over federal contractors. Shortly after nominating Chief Justice Burger, Presi- Employers set "goals" or "targets," not quotas and the dent Nixon nominated Clement Haynsworth to replace above agencies are supposed to see that the goals are Justice Fortas who had resigned because while serving met. The program emphasizes results. on the Court he had accepted a fee from Louis Wolf- Arthur Fletcher, former Assistant Secretary of Labor son's foundation. The Senate rejected Haynsworth, in and delegate to the United Nations in the Nixon Ad- part because of his anti-Black and anti-labor judicial ministration, has answered the question whether Presi- record. President Nixon then nominated A. Harold dent Nixon, if he is re-elected, will "support, or even Carswell who was also rejected, in part because of his consider, any aspect of the so-called 'Black agenda' mediocre judicial record and the signing of a racialtY as follows: restrictive covenant when he purchased some property "My answer ... is generally in the negative. The in Florida. President Nixon then nominated Judge civil rights movement is now a human rights move- Harry A. Blackmun who like Chief Justice Burger was ment, with white women, ethnic groups such as from Minnesota. Associate Justice Blackmun took of- Chicanos, and other minorities in control. It is now fice on June 9, 1970. even politically and socially acceptable to oppose so After Justices Black and Harlan resigned from the called 'Black aspirations,' if it is done tactfully. Thus, Court in September 1971, the Nixon Administration, promoting the remedy for the black plight to the ex- among several people, seriously considered four about clusion of other minorities is out." (Emphasis added.) who Elizabeth Drew reported the following: "The Black Dilemma if Nixon Wins," The Wall "Congressman Richard Poff, Republican of Vir- Street Journal, September 25, 1972 at 12. PA GE 198 THE BLACK LAW JOURNAL PAGE 198 THE SLACK LAW JOURNAL guage,2 its perversion of law and order, communities to the metropolitan centers and its stench of scandal. 2a However, in- of the nation. Families have been disori- tellectual integrity requires this writer to acknowledge that he is gradually sensing 2. Henry Steele Commager has written the following about the Nixon Administration's corruption of language: Chief Justice Burger and his Nixon-ap- "Corruption of language is a special form of decep- tion which the Administration, through its Madison pointed associates as weather vanes who Avenue mercenaries, has brought to a high point of perfection. Bombing is 'protective reaction,' precision will point the Court in whatever direction bombing is 'surgical strikes,' concentration camps are 'pacification centers' or 'refugee camps,' just like our Nixon winds blow and blacklash counter- 'relocation camps' for the Nisei in World War I. Bombs dropped outside the target area are 'inconti- currents flow. tent ordnance,' and those dropped on one of our own villages are excused as 'friendly fire'; a bombed The subject matter of this article is house becomes automatically a 'military structure' and a lowly sampan sunk on the waterfront a 'water- the viability and reliability of the Su- borne logistic craft.' How sobering that fifteen years before 1984 our own government should invent a premne Court as an institution for social doublethink as dishonest as that imagined by Orwell. Book Review of Richard J. Barnet's Roots of War change and progress beneficial to Blacks, entitled, "The Defeat of America," in The New York Reijew oj Books, October 5, 1972, at 11. not the alleged corruption, perversion, 2A. A Washington Post editorial says the following on this subject: and stink in the Nixon Administration. "There is somethitg to be said for corruption. It stinks. No matter how many lids you try to put on Nevertheless, the latter appears to be it, the stench will out. And that is what is happening with respect to the financial manipulations and re- vaguely related to an hypothesis this lated espionage activities involved in the effort to re- forth for explaining the elect Richard Nixon, despite the best efforts of the writer will set administration and the Nixon campaign committee current popularity of the Nixon Adminis- to stuff more lids onto the mess. "Without being dreary about it, we know there was tration, an hypothesis whose meaning burglary at the Democratic Party's headquarters in the Watergate-breaking and entering for the pur- may directly or indirectly influence the pose of committing a crime. We know there was bug- ging equipment on the premises for electronic eaves- Nixon-Burger Court. The hypothesis is dropping. We know there was tapping of telephone lines. We know there was $700,000 stuffed into a that a malignant symbiosis exists between suitcase and rushed to the Nixon campaign head- quarters just before the deadline for reporting on the regal pretensions and feeling of the campaign donations-and we know there was a shift 2 make it in the position on milk supports favoring dairy farm- Nixon Administration, b which ers just after receipt of some hefty contributions from it is above the law and associations of dairy farmers. We know there was a act and think slush fund in Mr. Stans' safe. Ve know that some Executive custom, and the yearning, of the money intended for the President's campaign ended up in the bank account of one of the men ar- compulsive desire and need of the general rested at the Democrats' headquarters. We know that some of the President's money was 'laundered' by populace to have respect for, faith and having checks from contributors deposited in a bank in Mexico from which nice, clean cash could then trust in some major institutional structure be withdrawn. We know there was a $10 million secret campaign fund and we know that one $25,000 in the United States, particularly the donor got a federal bank charter a good deal faster than most people do.
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