Not all gloom for the court


The moment I heard of Supreme Court Justice Thurgood Marshall's plan to retire, I rushed to the library to learn as much as I could about the Underground Railroad.

I figured the knowledge might come in handy, you know, just in case I get this sudden urge to set up an escape route for me, my family and my neighbors.

Alas, I was too slow. The library's shelves had been stripped bare by the time I came panting through the door.

"What is this sudden fascination with the Underground Railroad?" exclaimed the librarian, who apparently hadn't heard the news.

When I told her about Marshall's decision, the poor woman turned pale and wept.

I felt like weeping, too.

Marshall's resignation gave President Bush yet another chance to appoint a "right-thinking" jurist to what is fast becoming an Extreme Court, and that means bad news for us all.

Yes, for us all: Remove the country's highest court as an impartial arbitrator and you guarantee more racial turmoil, increased hostility, continued conflict.

When, oh Lord, will it ever end?

Yesterday, the president announced that he would recommend U.S. Appeals Court Judge Clarence Thomas for Marshall's seat. Thomas, like Marshall, is black, although the president claimed yesterday that he hadn't noticed.

But far more important than the color of Thomas' skin is the content of his character. And those who have followed his career were quick to note that Thomas apparently fits the ultra-conservative mold of recent appointees.

Presidents Reagan and Bush have now had the opportunity to make five (including Thomas) right-minded appointments to the Supreme Court, starting with Justice Sandra Day O'Connor in 1981.

In addition, Reagan elevated to chief justice William H. Rehnquist, a Nixon appointee and a man who has been hostile to civil rights in his judicial decisions and in his personal life.

Since then, the court has shown ever-increasing hostility to established civil rights protections. During one fell period in 1989, for instance, the court issued four decisions that made it harder and more expensive for plaintiffs to prove that they were the victims of discrimination, and weakened remedies after discrimination is established.

"Are we doomed?" I asked the director of the NAACP Legal Defense Fund when I got him on the phone yesterday. "When the courts turn against us, does that mean we are without remedies?"

"Of course not," answered Julius Chambers. "There is still a commitment to use the court to advance opportunities for minorities, to prohibit discrimination, to preserve gains."

Chambers noted that even this conservative court has not been unremittingly opposed to civil rights causes. Recently, for instance, the court ruled that the Voting Rights Act could be extended to judicial elections.

"If the statute clearly spells out congressional intent," said Chambers, "the court is more likely to follow what Congress was seeking and so, in those cases, we can still prevail. On constitutional issues, where you're talking about expanding the interpretation of the Constitution, they are less likely to go with us.

... TC "So," he said, "it is all question of strategy, of picking the right cases and the right issues. But it has always been a question of picking the right cases and the right issues."

Added David Bositif, of the Joint Center for Economic and Political Studies, "The focus must now turn away from the courts as a remedy and towards local legislative and administrative decision-making bodies."

Bositif noted that there has been a dramatic growth in the number of blacks elected to state legislatures across the country. Not only have their numbers increased, he said, but blacks are moving increasingly into positions of leadership and power in local and state government.

Thus, minorities may have greater opportunity than ever before to secure their rights outside of the courts.

"If you're a real player in the political process, you don't have to worry about the Supreme Court saving you; you can save yourself," said Bositif. "In a way, that kind of change is more democratic and more enduring."

So, the outlook upon Marshall's retirement is not uniformly bleak. Maybe we won't have to creep North to safety under cover of night.

When the Lord slams shut a door, somewhere he opens a window.

But when, when, when, oh Lord, will this turmoil, this hostility, this seemingly continuous racial conflict, ever end?

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