George W. Bush is president because of the United States Supreme Court. Were it not for the decision to stop counting votes in Bush v. Gore, Al Gore would be president of the United States instead. The right wing presidential victory was the culmination of many years of effort to take over the federal judiciary. Now Bush has two Supreme Court justices confirmed on his watch, and the damage to the justice system in this country is immense.
In the past month, the Roberts court has lived up to predictions that the worst case scenario has come to full fruition. In Ledbetter v. Goodyear, the court essentially advised workers to file discrimination lawsuits as soon as they begin a new job. Discrimination complaints under Title VII of the 1964 Civil Rights Act must now be made within 180 days of the discriminatory pay practice taking place. If the victim smells a rat after 180 days, there is no legal remedy and employers have no fear of legal retribution.
Ledbetter was just the beginning of hell month for the American justice system. In the Uttecht v. Brown decision, the Supreme Court ruled that potential jurors who express any reservations about the death penalty can be excluded from death penalty eligible cases. In his dissent, Justice John Paul Stevens said, “Millions of Americans oppose the death penalty. A cross section of virtually every community in the country includes citizens who firmly believe the death penalty is unjust but who nevertheless are qualified to serve as jurors in capital cases.”
Pro-death penalty jurors are more likely to convict. That means mostly black and Latino defendants have the deck stacked against them from the beginning with prejudiced, partial and almost always white jurors. These jurors are predisposed to see people of color behind bars and they are no more generous when the matter is life or death. As the use of DNA evidence has proven the innocence of hundreds of wrongly convicted persons, the death penalty has lost some measure of its popular support. That loss of support matters little if only racist, conviction happy jurors sit in judgment.
The Supremes weren’t finished stacking the cards against defendants. Keith Bowles appealed his murder conviction in an Ohio court, but because of incorrect instructions from a judge, he did so three days too late. “Too bad,” said five of nine justices. They ruled that the court’s 40-year old doctrine of “unique circumstances” was wrong to begin with, and Bowles and anyone else like him will not get his day in court.
It is obvious that the current Supreme Court is quite simply not the place to get justice. Good cases that can undo great wrongs should not be heard there unless or until there is a Democratic president who can change the makeup of the court.
It should be good news that the court agreed to hear the case of Kimbrough v. United States, which would determine whether sentencing disparities between crack and powdered cocaine are constitutional. Current federal law mandates that the sentences for possession of crack cocaine and powdered cocaine are treated very differently. Possession of five grams of crack, one-fifth of an ounce, carries a mandatory five year prison sentence. Possession of five hundred grams of powdered cocaine, 1.1 pounds, carries the same five year sentence. The punishment ration is 100 to 1 and black defendants are the losers. Eighty-percent of those sentenced for crack possession are black.
It is hard to believe that the same justices who decided that wage discrimination is not a problem, will change laws that automatically result in more black faces behind bars. This is not a good time for Kimbrough to be heard in the Supreme Court.
The hope for justice rests with the Democratic party, a sure sign of desperate whistling past the graveyard.
It must never be forgotten that many of the sentencing disparities and draconian drug laws that have now decimated the black community originated with the Clinton administration. Yet the Democrats at their most craven, compromised and triangulated are better than Republicans. Judicial appointments are one of the clearest examples of the Democratic lesser evil being preferable to the Republican evil that scores an eleven on a scale of one to ten. There is no hope of any semblance of justice unless a Democratic president is making judicial appointments.
If the next resident of 1600 Pennsylvania Avenue has the letter R behind his name, racism and the most extreme forms of punishment that go along with it will continue to rule on the bench. The traditional depiction of justice with a blindfold will have to be exchanged for one with her eyes wide open and her thumbs on the scale.
MARGARET KIMBERLEY is an editor and senior columnist for the Black Agenda Report. Her Freedom Rider column appears weekly in BAR. Ms. Kimberley lives in New York City, and can be reached via e-Mail at email@example.com.