In that post I wrote:
Look at it this way: If you personally held the power they do, would you use it to act as a positive force in the world, even if it meant picking and choosing from legal rulings? Even if it meant having to uphold a law you believed in, like the Civil Rights Act of 1964 for example, on something as ambiguous as 'interstate commerce'? Yes, you would, because you'd know that bastard Scalia (or someone like him) was doing the same thing on the other side of the ball. If you don't play the game, he wins. And if he wins, we're all doomed.
There's an interesting anecdote that goes along with that.
Today, our common conception of the civil rights movement in America is that of the mid 20th century, and rightfully so. But it's important to keep in mind that many similarly sweeping reforms were passed in the wake of the Civil War (along with the 14th Amendment) during what is known as Reconstruction, and only rendered useless by the unwillingness of both the Supreme Court and the Executive to support and enforce them. The Civil Rights Act of 1875 was one of these, guaranteeing blacks equal treatment, much as other civil rights legislation did almost a century later. Unfortunately, the Supreme Court stepped in.
In 1883, the Court ruled on what are known informally as the Civil Rights Cases - a group of cases wherein black patrons were discriminated against by the ownership of various establishments. The Court decided (8-1) to hold the Civil Rights Act of 1875 unconstitutional under a very limited reading of the 14th Amendment. The idea - firmly rejected by the sole dissenter, the great John Marshall Harlan - was that the 14th Amendment didn't actually give Congress the power to enforce its Equal Protection Clause (which prevented discrimination) on the private sector. This helped set into motion a long and ridiculous precedent where the Equal Protection Clause was neutered in ways the other parts of the Amendment were not. Even much more recent cases are affected - like as in United States v. Morrison, where it becomes apparent that the dissenting justices aren't even going to bother trying to argue the point anymore. Instead, they've turned to the Commerce Clause found in Article I of the Constitution, which states that Congress has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
81 years after the Civil Rights Cases, the Court ruled unanimously in the famous Heart of Atlanta Motel v. United States, stating that the Commerce Clause offered Congress enough power to enforce the provisions of the Civil Rights Act of 1964. This effectively ended segregation - at least as far as it applied in official terms. What was most telling about the scenario is that it would have easily fit into the Civil Rights Cases had it occurred all those years earlier. The dispute was once again one of base discrimination by a private owner. This miraculous reversal practically begs the question:
If the Court in 1883 would have considered the Commerce Clause argument, would they have instead upheld the Civil Rights Act of 1875 as constitutional?
Well, it turns out they did consider the argument. It was mentioned in both the Court's opinion and in Harlan's dissent. The Court decided to cop out, taking the position that the question of interstate commerce was "not now before [them]". Worse, the decision was written by Joseph P. Bradley - a justice well known for his generous use of the Commerce Clause in other cases. Why was he willing to apply it in so many other areas, and not here? Probably for the same reason the 1964 Court found a way to rationalize something most of the 1883 Court did not - his opinion was not based off of the reading of the law, but instead his personal feelings on race.
Indeed, it seems more than obvious that the difference between the two courts was that of changing opinion on racial issues over time (thanks in large part to the sheer power of the movement in the 1950s and 60s). And it really should surprise no one when personal opinions end up influencing the judiciary more so than a benign, stolid reading of the law. The law more often comes into play to support important opinions than it does to influence them.
This is the story you consistently read when studying the pattern of the Court's decisions over the years. It's why we talk about liberal and conservative judges, and worry endlessly about when each Supreme Court justice will retire. The average person doesn't reject this. They know that the justices are split ideologically - and not by interpretation of the law - on cases like Bush v. Gore and Roe v. Wade. But if this type of judicial bias occurs regularly in the highest court of the land, why do we struggle to believe it in cases such as Jeremy Hammond's?
Could it be our own bias?
The idea of 'equal protection under the law' has long failed to provide any sense of true equality, thanks to the very nature of capitalism and the hierarchy of power it creates. This applies not just to blacks, but certainly to women, and to other racial minorities as well. But that's a story for another time.