With the recent celebration of the 50th anniversary of the Brown v. Board of Education decision ordering the desegregation of public schools, the conventional wisdom is that this was the moment when our nation realized that the majority could not be trusted with individual rights, that democracy had failed for the black minority, and we needed unelected judges to save us. 

Which is just bad history.

What the Supreme Court did was save us from unelected Senators (or at least Senators not elected by much of the population), who had been put there by unelected judges on the Supreme Court back in the 1870s-- when those judged killed the Reconstruction laws that protected minority rights in the South.

Democratic Majority Supported Civil Rights: First, the lie that the Supreme Court acted against majority will back in 1954. I wrote about this two years ago in a column, “Remembering the Popular Will for Civil Rights.” In fact, there were strong majorities in our nation to end Jim Crow segregation. Repeatedly, the House of Representatives by large majorities passed legislation in the 1940s to end the poll tax. The Dixiecrats walked out of the Democratic Party in 1948 because of its strong civil rights plank. And by the mid-1950s, the House was repeatedly passing legislation to ban segregation in public schools, along with ending segregation in other private businesses.

The only thing that stopped this legislation from becoming law was a minority of southern Senators who filibustered the laws. And those Senators were not democratically elected. They were only in office because lynchings and racist voting laws prevented the black population from voting.

And the reason the Southern states got away with this racist election system was the Supreme Court itself.

After the Civil War, the House AND Senate, elected under new Reconstruction laws that protected the right to vote, passed laws to prevent both state government disenfranchisement and private Klan-style harassment of voters. National Reconstruction Congresses also passed laws prohibiting any public or private segregation in hotels, restaurants, or any other kind of public accommodation.

In the initial years after the Civil War, those laws were used to suppress the Klan and allow free and fair elections that elected a range of pro-equality politicians, both white and black, across the South.

Were those laws democratically repealed?

No.

The Supreme Court repealed them and plunged the South into nearly a century of lynchings and Jim Crow. Starting almost immediately after the Civil War and culminating in 1876, that Supreme Court declared that laws passed by the elected Congress were invalid.

The Cruikshank Decision: The culmination was the 1875 Cruikshank decision- which declared that the US government could not prosecute private murder meant to overthrow southern Reconstruction governments. The case dated from the Colfax Massacre, an 1873 mass murder of 100 blacks who were defending their county courthouse from a white mob who overthrew the local government by violence.

And the US Supreme Court declared that the US government had no power to stop private rightwing violence meant to overthrow these state governments or violence used to prevent individuals from voting. Essentially, the 14^th Amendment, which had granted Congress the power to enforce equal protection, was declared null and void by the Supreme Court.

The results were predictable. Licensed by the courts, Klan-like terrorism spread across the South, killing blacks and their supporters, suppressing their votes, and taking over southern governments. And, of course, democratically elected Senators in favor of civil rights were replaced with the pro-segregation Senators who would represent the region into the 1970s.

To repeat, the democratically elected Congress had passed voting rights laws and anti-segregation laws in THE 1870s. It was an unelected Court which de facto repealed those civil rights laws and put in place racist Senators throughout the South. 

So it is the Supreme Court that is to blame for the racist Senators who resisted civil rights in the 1950s.

The Supreme Court in 1954 deserved credit for beginning to clean up the racist mess their brethren had created in the past, but institutionally, Jim Crow and the Klan are the legacy of abuse of power by the Supreme Court.

So look at Brown and think about the dangers of unelected Court power, not its usefulness to liberty.

Nathan Newman is a labor lawyer and longtime community activist. Email nathan@newman.org or see http://www.nathannewman.org.