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What has been deemed legal is not always right

But even a less-than-just Supreme Court has never stopped progress

A protester dressed in a Bible costume stands in front of the U.S. Supreme Court last year.
A protester dressed in a Bible costume stands in front of the U.S. Supreme Court last year. (Bill Clark)

Sometimes, the court gets it right.

It did in the case of Bridget “Biddy” Mason, who eventually walked more than 2,000 miles before her journey ended in California, where her enslavers, Robert and Rebecca Smith, held Mason and her children captive in the supposedly “free state.” When she learned of the Smiths’ plan to haul them all to the slave state of Texas, Mason sued. And in 1856, after listening to her testimony in chambers, because Blacks could not testify against whites in court, Judge Benjamin Hayes decided in her favor.

Lucky for her, and for California, since Mason went on to success as a midwife, entrepreneur and philanthropist, establishing day-care centers and the First African Methodist Episcopal (FAME) Church in Los Angeles, which is still in operation.

I was spurred to learn more about her story after reading a tribute in the National Underground Railroad Freedom Center in Cincinnati during a recent trip there. Hers is a true-life tale that displays strategic intelligence and agency, and the countless ways society benefits when barriers are removed and innovation and imagination allowed to flourish.

The current U.S. Supreme Court, unlike Judge Hayes, in my opinion, got it terribly wrong in a flurry of decisions it issued last week. Each one, delivered in turn like staccato body blows, punctuated the court majority’s agenda to halt progress and move the country backward.

At the Freedom Center, I spent hours studying the exhibits, repelled by the lengths those in power would go to possess human beings they viewed as property, yet inspired by stories of brave patriots of every race who traveled on all sides of the “law” but always on the path of justice.

What has been deemed legal is not always right.

This country’s highest court has acted ignobly, as in the 1857 Dred Scott decision, in which Chief Justice Roger Taney declared that Black people had “no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”

And it has been the prodding guide for a recalcitrant nation, as in the 1954 Brown v. Board of Education decision, in which it unanimously stated: “The doctrine of separate but equal has no place. Separate educational facilities are inherently unequal.”

Pushback has come from those who call out injustice, as Frederick Douglass did after Dred Scott, when he noted: “The Supreme Court of the United States is not the only power in this world. It is very great, but the Supreme Court of the Almighty is greater.”

And negative resistance has persisted, as well, the hallmark of those who would stand in the way, yelling “stop,” as segregationists proved when they used every tool, including violence, to fight Brown.

It wasn’t a surprise when the Supreme Court knocked down the use of race, but nothing else, as one factor among many for colleges and universities deciding which students to admit. Their reasoning ignores how the Harvard of today chooses a class, saving spaces for children of alumni, faculty and donors, those with talents in music or athletics, or from a state with paltry representation, and with a sprinkling of celebrity names moving to the front of the line.

It ignores that any applicant who makes it past review is qualified, and that no school has ever chosen a class based on test scores alone, lest it leave out too many children of the rich and powerful.

But most of all, Chief Justice John G. Roberts Jr. and the majority on the court ignore America, where race matters — and has always mattered. Instead, as Justice Ketanji Brown Jackson wrote in brilliant dissent: “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat.”

When Jackson wrote that “deeming race irrelevant in law does not make it so in life,” it seemed obvious considering disparities in health, wealth, housing and more, gaps formed after centuries of enslavement, Jim Crow and discrimination in every aspect of school, work and life.

The University of North Carolina at Chapel Hill, named in the affirmative action lawsuit, is an institution that sucked tax money from the state’s Black residents but did not admit its first Black undergraduates until 1955 and its first African American woman until 1963. But, by all means, Roberts, when judging university admission policies, insists racism is over, its legacy gone, like magic.

The reputation of the U.S. Supreme Court is in tatters, with a majority of the public seeing its members as politicians with ready-made conclusions they wriggle with a contortionist’s skill to justify.

Yet, instead of a little self-reflection, and maybe some sage advice to their conservative colleagues to lay off the expensive trips bought and paid for by wealthy conservative benefactors with business before the court, Roberts reserves his harshest rebukes for justices who have the temerity to poke holes in the majority’s legal reasoning.

How dare Jackson point out the hypocrisy of judges who use originalism as cover for “colorblind” fantasy while turning a blind eye to the reason for the 14th Amendment they keep citing, which was to bring the formerly enslaved into the fullness of American citizenship. Race neutral it is not.

When Justice Sonia Sotomayor said in dissent, “The immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status,” she was only stating what the world could see as the majority decided to allow a Colorado woman to refuse wedding web-design services to imaginary gay clients, since none have so far asked.

And was Justice Elena Kagan too impudent, in Roberts’ view, when she used his own past words in her dissent to the majority decision to block President Biden’s student loan debt reform?

Justice Clarence Thomas is a special case, a beneficiary of affirmative action who blames its stigma on personal setbacks. Doesn’t he realize that some people will always look at any Black person in a school or job or neighborhood as unworthy, and it sure isn’t the fault of affirmative action or the individual being judged but the person whose vision is stunted by prejudice?

He need only look at his court colleague Jackson for an example of Black excellence. But Thomas seems more comfortable sniping at her in his opinions for things she never wrote or said. 

In a tough week, though, I kept returning to memories of that trip to the Freedom Center for strength and solace, and belief that progress slowed nonetheless will find a way.

All I had to do was stand on the banks of the Ohio River and look across to see Kentucky on the other side, imagining the fears and hopes of men, women and children setting off into the unknown. They made that against-the-odds journey, with bounty hunters on their heels, knowing they had to look over their shoulders all the way to Canada.

“Biddy” Mason found relief in a courtroom with an assist from a judge who bent the rules. But so many others had to find other ways. They, and the generations that followed, did and many have made it to the other side. And they will continue to drag America to greatness — whether it likes it or not.

Mary C. Curtis has worked at The New York Times, The Baltimore Sun, The Charlotte Observer, as national correspondent for Politics Daily, and is a senior facilitator with The OpEd Project. She is host of the CQ Roll Call “Equal Time with Mary C. Curtis” podcast. Follow her on Twitter @mcurtisnc3.

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