The Supreme Court Is in Danger of Again Becoming ‘the Grave of Liberty’

by Eric Foner

Eric FonerEric Foner, a member of The Nation’s editorial board and the DeWitt Clinton Professor of History at Columbia University, is the author, most recently, of Battles for Freedom: The Use and Abuse of American History, and Gateway to Freedom: The Hidden History of the Underground Railroad. His next book, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, will be published in September.

The Supreme Court’s recent decision refusing to interfere with extreme partisan gerrymandering not only seriously undermines our already fragile democracy; it also brings to mind the Court’s acquiescence over a century ago in laws that denied the right to vote to millions of black Southerners. In particular, it is reminiscent of the Court’s 1903 ruling in Giles v. Harris, a largely forgotten case in which the justices, as today, claimed they were not authorized to adjudicate “political” matters.

Jackson V. Giles, president of the Alabama Negro Suffrage Association, sued to overturn voting requirements in Alabama openly designed to disfranchise black voters after the end of Reconstruction. The Alabama constitution of 1901 allowed registrars to bar from voting those who lacked “good character” or did not understand “the duties and obligations of citizenship.” The result was that almost all black voters were eliminated. This despite the fact that the 15th Amendment, ratified in 1870, prohibited states from denying the right to vote because of race. To try to work around that amendment, Alabama’s requirements did not explicitly mention race. But it was clear, as Giles’s complaint argued, that the state’s entire registration system was racially biased.

Oliver Wendell Holmes, recently appointed to the Court by Theodore Roosevelt, wrote the opinion for a 6-3 majority. Like Chief Justice Roberts today, Holmes threw up his hands and described the Supreme Court as impotent. If “the great mass of the white population intends to keep the blacks from voting,” he wrote, there was nothing the justices could do. The courts could not get involved in politics. “Relief from a great political wrong” could only come from the “people of a state” through their elected officials, or from Congress. Holmes ignored the fact that the definition of the “people” of Alabama was precisely the point at issue. Holmes would go on to a distinguished judicial career. Giles v. Harris, one scholar has written, “is—or should be—the most prominent stain” on his reputation. Chief Justice Roberts, take note.

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