Equal Justice Under Law

At his best, man is the noblest of all animals; separated from law and justice he is the worst.

Aristotle

Justice John Marshall,  Justice Louis D. Brandeis, Justice Earl Warren, Justice Oliver Wendell Holmes, Justice Felix Frankfurter, Justice Hugo Black, Justice William O. Douglas are shining stars of the judicial firmament of the Supreme Court of the Untied States.  These legal giants did more to affect the history of the United States than most politicians, and reaffirmed that the rule of law is paramount even when democracy is challenged. 

Since Marbury v. Madison the court has issued opinions affecting the fate of our republic.  Many of the cases have been wrongly decided,  especially Dred Scott, holding that African- Americans were not eligible for citizenship because at the time of the drafting of the Constitution they were not citizens of the United States. In Plessy v. Ferguson,(1896). The Court ruled on the concept of 'separate but equal' and set back civil rights in the United States for decades to come.

Plessy was considered precedent and not subject to change until being overruled by later cases, including Brown v. Board of Education, which effectively ruled that “separate but equal” was inherently unequal.  Brown overturned precedent.   Averments that Supreme Court candidates make about “settled law” therefore, in front of senate confirmation hearings mean not very much at all.  Perhaps in the lower courts, but not in the highest court in the land which makes precedent, ergo the evasively disingenuous  statement of Judge Kavenaugh about following precedent.

Throughout the 19th century, and even much of the 20th century, our nation has dealt with the ugly, demeaning results of the historically ignominious stain of racism and slavery,  the genesis of a wellspring of global antipathy toward our nation, and a deep reminder how hypocritically sanctimonious it is for  those who call America the land of the free and the home of the brave--the shining city on the hill.

Our national conscience is still obsessed with the values of “whiteness,” the detritus of our disambiguated antipathy towards those who do not meet the tribal standards of white America.

Even in times of historic dysmorphia from our Puritan Episcopalian roots, we cling to the notion that the “browning” of America is somehow an evil to be erased by white nationalism, shielded by a thin veil of economic and social fears stoked by demagoguery.

Somehow, somewhere these notions might disappear, but the inherent issue is whether it will take too long to save the Republic.  Some think we are due for a second civil war.  This war could possibly originate in the exacerbation of a meritocracy created by economic stratification of the masses through automation and educational disparities aggravated and created by governmental educational malfeasance, the malignant byproduct of a Dickensian rationale among the privileged classes that assumes racist disparities rendering huge numbers of our populace uneducable.

At Gettysburg, Abraham Lincoln understood that the sacrifices made to save the Union could have been squandered, and in his second inaugural address, sought to “bind up the nation’s wounds,” with “malice toward none and with charity for all…”

Far we are from these thoughts today, the nation riven by a President who plays a cynical game of thrones.  Imagine how he would serve in the arc of history had he re-appointed Merrick Garland to the Supreme Court?  Or announced that Nazis were bad instead of commenting ignorantly that there were good people on both sides of the Charlottesville racial eruption,  creating a false moral equivalence by pandering to the worst instincts of his base?

Perhaps he would have risked alienating the worst of his base, but he would have united much of the country at the center, and even further marginalized those who are motivated by resentment, fear and misappropriated rage.

So we must analyze the divisions of our polity.  Is leadership the ability to unite disparate groups with an appeal to better angels or is it one that builds on animosities?  Animosities seems an easier building block, given the tribal tendencies of humans and the sordid history of war and hatred of people who do not resemble us.   The notion that humanity, as some scholars say, is improving apace and on an evolutionary scale, is not a long time.  But for those who have lived through many episodes of it, it seems like an eternity.