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OpEd: The Supreme Court Must Be the Conscience of the Nation

This week the U.S. Supreme Court handed down a series of decisions that every American, and more specifically every American of color, immigrant and believer in religious liberty should pay attention to.

Four issues were decided by the high Court: President Trump’s “travel ban”, California’s gun law, Gay parents’ rights on their children’s birth certificates and a Missouri religious school’s right to use taxpayer funds.

Below is a summary of the Court’s holdings in each case:

  • In a 6-3 ruling, the controversial “travel ban” issued by President Trump earlier this year was upheld in part, and the remaining provisions will be further reviewed in the fall. The court is allowing the ban to go into effect for foreign nationals who lack any "bona fide relationship with any person or entity in the United States."
  • In a 7-2 decision the court decided NOT to hear a case on the California law requiring a local law enforcement permit to carry a concealed handgun in public standing. Prompting outrage by Justice Thomas who said the law “degrades the constitutional right to bear arms.”
  • In a 6-3 decision, the Court struck down an Arkansas state law forbidding a lesbian couple the right to be named as parents on their child’s birth certificate.
  • In a 7-2 ruling, the court ruled on a Christian school’s right to receive taxpayer funds. Thereby allowing a religious school in Missouri to receive state funds to pave its playground.

The Court also agreed to hear oral arguments on the constitutionality of the full "travel ban" issued by the President earlier this year, and another case that deals with the rights of a cake maker to deny gay patrons his services.

Each of these cases will impact all of us as American citizens on how we understand and live out the fundamental freedoms and liberties guaranteed to us by the Constitution. For people of color, the LGBTQ community, gun owners, business owners and Christians the high court’s rulings will once again shape our nation and how we live together as Americans.

Image: A police officer stands outside the U.S. Supreme Court
A police officer stands outside the U.S. Supreme Court on June 26, 2017 in Washington. Eric Thayer / Getty Images

The truth is, it was the United States Supreme Court who upheld slavery in the Dred Scott decision of 1857. It held that "a negro, whose ancestors were imported into [the U.S.], and sold as slaves," whether enslaved or free, could not be an American citizen and therefore had no standing to sue in federal court.

It was the Supreme Court that created the “separate but equal” Jim Crow era doctrine in Plessy vs. Ferguson in 1896, which was overturned by Brown vs. Board of Education in 1954.

And finally, in 1967, attorney Thurgood Marshall was appointed to the Court as an Associate Justice, and it struck down laws forbidding interracial marriage with the historic Loving vs. Virginia case which just celebrated its 50th anniversary this month.

So, you see it is the High Court, not the Congress or the President who has shaped so much of what we have come to value as our “inalienable” and “equal” rights in America.

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Of course, the courts were not created until 1787 at the Constitutional Convention and ratified in 1789, when the nation’s founders established the federal court system. In doing so, they went to great lengths to create a branch of the government that was accountable to the law, and not to political interests or hot-burning public passions.

As detailed in the Federalist Papers, and in James Madison’s notes of the 1787 constitutional convention, the founders took at least three steps to put a protective bubble around the courts:

  • They gave federal judges lifetime tenure, so that they would not have to look over their shoulders whenever addressing controversial cases.
  • They prohibited Congress from reducing judges' salaries, to prevent economic coercion of judges.
  • The convention rejected any legislative veto of federal court decisions. Court decisions were final, although Congress retained the power to enact new laws in the face of unfavorable rulings.

Many think that the true power in our great Republic rests with the Presidency or with the Congress. I strongly disagree.

Any objective study of our 241-year old history as a nation, of our constitution and of our laws points to a powerful judicial branch that “interprets the laws” and decides which of them upholds and meets our unique American standard of how we treat our citizens, how we protect our citizens, and how we uphold the rights of the individual versus the state.

Related: Opinion: Don’t Take Down Confederate Monuments. Here’s Why.

The Supreme Court must then be the conscience of the nation. It must reflect the values and the diversity of the nation. No Black woman has yet to sit on the nation’s high court, but I hope she someday will.

The Court should approach every case with these words from its Chief Justice John Roberts in a June 3, 2017 commencement speech at Cardigan Mountain School in New Hampshire:

“From time to time in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice. I hope that you will suffer betrayal, because that will teach you the importance of loyalty. Sorry to say, but I hope you will be lonely from time to time, so that you don’t take friends for granted. I wish you bad luck, again from time to time, so you will be conscious of the role of chance in life, and understand that your success is not completely deserved, and that the failure of others is not completely, deserved, either. And when you lose, as you will from time to time, I hope every now and then your opponent will gloat over your failure. It is a way for you to understand the importance of sportsmanship. I hope you will be ignored, so you know the importance of listening to others. And I hope you will have just enough pain to learn compassion.”