Atty Lester Pines Looks at the U.S. Supreme Court and Civil Rights: History, Civil Rights & The Supreme Court (Part 2 of 2)
Recently Retired Attorney Lester Pines Speaks at the NAACP Freedom Fund Banquet in October 2024.
by Jonathan Gramling
After the American Civil War ended in 1865, Union forces occupied the Southern states and the former Confederate states were not allowed to fully participate in the United States until they passed the 13th, 14th and 15th Amendments that gave full citizenship to the Africans who had been enslaved. By 1870, Blacks were being elected to local, state and federal positions. In Mississippi, they held significant political power in the state legislature, which led to the appointment of Hiram Revels to represent Mississippi in the U.S. Senate in 1870, becoming the first African American U.S. Senator. (It was the 17th Amendment in 1913 that allowed U.S. Senators to be elected by the popular vote).
The end of Reconstruction had commenced and the United States’ version of apartheid, Jim Crow, lasted into the 1940s before cracks in its edifice began to form. The Second Reconstruction, ushered in by the Civil Rights Act of 1965, the Voting Rights Act of 1965 and the Fair Housing Act of 1968, was a period of social and economic change for African Americans and other marginalized groups. But by the 1980s, conservative and white nationalist forces once again began to gather steam to put an end to this period of Reconstruction.
Jusat like the end of the first Reconstruction, the end of the Second Reconstruction has been added by advances in communications technology.
“Remember I talked about the 1920s and this new means of communication, Network Radio, which also became Network Television,” said Attorney Lester Pines who spoke at the NAACP Freedom Fund Banquet in October. “We have a new means of communication now, which is social media and is also portable. The radio became portable in the 1950s. Now we have social media, which is even a greater force than Network Broadcasting. Everyone can participate in it. That’s what is driving a lot of the white supremacist ideology. And here we are.”
And just as the U.S. Supreme Court ushered in the era of Jim Crow with the 1896 Plessay v. Ferguson ruling, today’s Supreme Court has been laying the legal groundwork to undermine the Secong Reconstruction.
“Right now, the Supreme Court is so ideologically conservative — I don’t know if that is a good word to describe it — the danger is that the viability of the federal government to be enacting rules and regulations that will assist in the enforcement of anti-discrimination laws has been undermined through the court overturning a prior precedent called the Chevron case,” Lane said. “The Chevron case for 50 years said that the courts would defer to the interpretation of laws passed by Congress that were not 100 percent clear and there had to be rule making in regard to how to implement the broad policy decisions made in the legislation. The Supreme Court has said that resides with the courts. There is no deference to the administrative agencies. That’s true in Wisconsin in what was called the Tetra Tech decision. The danger in the federal judiciary however is that we have a number of courts of appeals, which have very, very right-wing judges on them now who apply, in my opinion, ideology before law. And that is extremely dangerous.”
The Supreme Court has also allowed for a form of minority rule to be put in place in state legislatures.
“There was the case from Wisconsin called Gill vs. Whitford,” Pines said. “What Gill vs. Whitford said was that the federal courts have no jurisdiction to review gerrymandering legislatures. What does that mean? It means that if you have a gerrymandered legislature, you can enforce ideological conformity. If you take Wisconsin as a perfect example, in 2010, the Republicans took over and controlled the legislature and Scott Walker was the governor. And they did the most radical gerrymander in the country. Now the problem with the gerrymander is that in combination with Citizens United, it then allows the wealthiest people to enforce uniformity of ideology in a legislature because if anyone in the majority party of the gerrymandered legislature steps out of line, they can have a primary opponent well-funded against them in the next election. I talked about this five years ago when I gave a talk at the law school’s 150th anniversary presentation. We are seeing it today in Washington, D.C. where Elon Musk who has unlimited money is now threatening the Congresspeople in the House with primaries if they don’t do what he wants or Trump wants. And that is what the Supreme Court of the United States wrought by saying, ‘We can’t do anything about gerrymandering.”
And another significant ruling was Citizens United that allowed unlimited money to be spent in elections because they ruled that money is speech.
“And here we are,” Pines said. “And consequently, you won’t have people who stand up for diversity, equity and inclusion in the Wisconsin legislature, which has this whole thing about DEI. You can’t have anyone stand on principle and say, ‘Wait a minute.’ They are in the majority, the Republicans, in the state legislature. You can’t have a Republican stand up and say, ‘I don’t agree with you Robin Vos. I think DEI makes sense.’ You can’t do it or won’t do it because if they do it, they will be primaryed. And who votes in primaries? Very few people. Who’s going to win in the primary? The person who is best funded. That’s what is going on. And that is a huge threat to continued efforts to deal with equality.”
Another blow to equal rights has been the Dobbs decision, which overruled Roe v. Wade that ruled the the right to choose was a constitutional right.
“The Dobbs decision is on par, in my opinion, with Plessey vs. Ferguson in that women now have a second-class status in America,” Pines said. “We are already seeing the results of the Dobbs decision with women dying for lack of appropriate medical care, especially in regards to miscarriages. And I don’t know if anyone has noticed, but the stories of the women who have died for lack of appropriate miscarriage care following Dobbs, the majority of those women have been Black.”
There were also federal and state initiatives that were put in place during the 1990s, namely the War on Drugs, which instead of helping the Black community, it weakened its political voice.
“That was absolutely one of the most destructive social policies in the history of the country,” Pines said about the War on Drugs. “And it was directed primarily at African American people. And rather than look at the crack cocaine epidemic as a public health problem, the governments up and down treated it as a criminal law problem and had the draconian sentencing, which destroyed two generations primarily of poor Black men. And I believe that the War on Drugs had an underlying racial bias to it and was horribly destructive. It didn’t solve the underlying problem either.”
When the Supreme Court ruled that political action committees didn’t have to reveal the sources of the donations they receive, it allowed further control of the political process by well-heeled individuals.
“Individuals can give unlimited amounts of money to secret political action committees,” Pines said. “Political action committees can give donations out, but the court has said those political action committees cannot be required to say who has contributed the money to them. The political system has problems. And here we are; we’re going to have Donald Trump again and these crazy people running the government. Who knows what is going to happen?”
And with a new Trump Administration, Trump will have the power to appoint federal jusdges for the next four years and make the federal judiciary even more conservative and right-leaning.
“When you vote in a federal presidential election, you’re not only voting for the Supreme Court, you’re voting for who is going to be in the federal judiciary across the board, but primarily the Supreme Court,” Pines said. “Here we have a situation that during the next four years, it is entirely possible Alito and Thomas will retire or die. It’s possible that Sonia Sotomayor might have to retire. She’s been a Type 1 diabetic. Her whole life. She has handled it quite well obviously, but who knows with a chronic disease. And the person who is president appoints the justices. Even more importantly, they appoint the judges on the courts of appeals. What happened last week is four justices who were appointed by Democratic presidents had said they were going to take senior status, which would allow another person to be appointed into their seat. They reversed themselves and said, ‘We’re not retiring.’ There was a little uproar in the Senate about that. The Republicans are all agitated about that, but too bad. The courts of appeals are quite important. When you vote for president, you’re voting for who is on the courts of appeal too.”
As the Second Reconstruction comes to an end as evidenced by Trump’s executive orders eliminating DEI initiatives in the federal government and federal subcontractors and eliminating some anti-discrimination rules and guidelines, perhaps the seeds for the Third Reconstruction have already been planted.
“I am not completely pessimistic,” Pines said. “I have grandchildren. Two of my grandchildren live in Durham, North Carolina. And one is in Minneapolis. One of the things that I have seen, especially from my grandchildren in North Carolina who are in schools that are integrated. And my grandchildren obviously know that people have different skin colors, but they don’t appear to see race. They don’t appear to attribute negative things to people’s skin color. I hope that is true across the board in lots of different places. They are growing up in a different environment and they are seeing people of different races, different skin colors. And so that gives me hope for the future. Things can change in a positive way because there are new generations that haven’t been exposed to the old ways.”
While we are in a barren winter for individual rights in the United States, another spring of initiatives will come where individual and equal rights will flourish once again.
