Tag: Supreme Court

Ulysses S. Grant, Reconstruction, and the Voting Rights Act of 1965

By Kaleena Fraga

The 14th amendment guaranteed all citizens “equal protection of the laws”, effectively ending the 3/5 Compromise enshrined in the Constitution (stating that states could count black people as 3/5 of a person). As president, Andrew Johnson fought against the 14th amendment and convinced southern states to do the same. Following his lead, southern states refused to ratify it. Still, the amendment was ratified on July 9th, 1868. It was followed by the 15th amendment, which ensured equal voting rights, regardless of race.

This was, Grant said during his presidency, a mistake.

Grant was no racist–far from it–but he recognized the inherent problem of states disenfranchising voters, while using their bodies as tallies toward their power in the electoral college.

What was it about the 14th and 15th amendments that Grant didn’t like?

Grant’s secretary of state, Hamilton Fish, recorded Grant’s thoughts during a particularly tense point in his presidency. The recent presidential election–which would eventually put Rutherford B. Hayes in office–had been highly contested, and Grant and Fish had heard reports from Louisiana that stated that black voters had been so terrorized that “overwhelmingly Republican parishes had ended up in Democratic columns.” A Senate investigation even later uncovered that in one parish 60 black Republicans had been murdered before the election.

Fish wrote of Grant, “He says he is opposed to the XV amendment and thinks it was a mistake; that it had done the negro no good, and had been a hindrance to the South, and by no means a political advantage to the North.”

Grant later clarified what he meant: “[The South] keep[s] those votes, but disfranchise[s] the negroes,” he told journalist John Russell Young. “That is one of the gravest mistakes of reconstruction.” In other words, the 14th amendment increased the population of the South, which gave southern states more heft in the electoral college. So although the South suppressed the black vote, it could count them fully for election purposes. The result was an imbalance of power.

Grant saw it as his prime responsibility–indeed, the prime responsibility of the government–to ensure that everyone had safe, easy access to voting. “I will not hesitate to exhaust the powers thus vested in the Executive,” he said, “for the purpose of securing to all citizens of the United States the peaceful enjoyment of the rights guaranteed to them by the Constitution and laws.”

Grant oversaw the passage of the Civil Rights Act of 1875, which outlawed racial segregation in public accommodations, schools, transportation, and juries. Democratic states did not bother to enforce it, and it was struck down by the Supreme Court in 1883 as unconstitutional. It would take almost 100 years for Congress to attempt anything similar.

It wasn’t until 1957 that Congress passed another civil rights bill; and it wasn’t until 1964 that laws first proposed in 1875 were enshrined into law. Then, in 1965 the country saw the Voting Rights Act, which enabled fair voting to the very citizens that Grant sought to protect, 90 years earlier.

Ulysses S. Grant’s presidency was a long time ago, but his mission, to protect voters, is today more important than ever.

In 2013, the Supreme Court struck down key tenets of the Voting Rights Act. Chief Justice John Roberts, writing the majority opinion, stated that such protections were no longer needed because “our country has changed” for the better. “While any racial discrimination in voting is too much,” Roberts wrote, “Congress must ensure that the legislation it passes to remedy the problem speaks to the current conditions.”

Since 2013, it’s become harder for Americans to vote. In light of the 2013 ruling, southern states have closed at least 868 polling places–the Voting Rights Act of 1965 allowed the Department of Justice to stop closures like these, but that part of the legislation was struck down. Vox points out that these 868 closures are in about half of the counties that were once targeted by the Voting Rights Act because of their history of racial discrimination. This means that there could be hundreds, or perhaps thousands, of closures that are untracked.

In 2018, the United States faces the same problem it faced in the 1860s and 1870s. Americans have a limited ability to vote. Those who work long hours, or shifts, or live far away from polling places, face difficulties having their voices heard. Yet they are still counted, and states can use their bodies (even while it silences their voices) on the electoral stage. To Grant, this oversight on the part of the U.S. government would be nothing less than a dereliction of duty.

Anthony Kennedy, Franklin D. Roosevelt, and Reshaping the Supreme Court

By Kaleena Fraga

(to listen to a version of this piece in podcast form, click here)

On February 5th, 1937, President Franklin Delano Roosevelt announced that he would attempt to expand the Supreme Court bench. His announcement incited instant outrage–Roosevelt’s opponents accused him of trying to pack the court so that he could push through his New Deal policies. Roosevelt’s plan was radical—he sought to completely reshape the court—but the idea of changing the number of justices is not, and indeed, Congress has adjusted the size of the Supreme Court six times in American history.

Originally, the Judiciary Act of 1789 ruled that there would be six justices. But when Thomas Jefferson swept to power in a Democratic wave that also put his party in Congress, the lame-duck Federalist Congress voted to reduce the number of justices to five. When the next Congress was sworn in, they repealed this decision, keeping the court at six justices. In Jefferson’s second term, they added a seventh, affording Jefferson the opportunity to appoint someone to the bench.

Thirty years later the size of the court changed again. Congress increased the court to nine justices, which gave Andrew Jackson the opportunity to hand-pick the two additions to the Supreme Court.

Change came again in the 1860s. This was a a turbulent time for the nation, and the Supreme Court. In the midst of the Civil War the court expanded yet again to an all-time high of ten justices–this time to protect an anti-slavery/pro-Union majority. But when Andrew Johnson became president following Lincoln’s assassination, the Republican Congress reduced the size of the court to protect it from a Democratic president. The court shrank from ten justices to seven. Congress effectively removed Johnson’s ability to appoint any justices. Then when Ulysses S. Grant became president in 1868 after Johnson left office, Congress voted to expand the court to nine justices. For many people in 1937 when Roosevelt made his pronouncement, nine justices felt like a norm—like an unchangeable fact of the judicial system.

Roosevelt’s plan, however, was not as simple as expanding the court. He wanted to enforce rules to make justices retire at 70, and, if they refused, give himself the power to appoint associate justices who could vote in their stead. This would effectively give him the power to sculpt the court, and to ensure the legality of his New Deal legislation.

FDR had had a productive first term, and had won reelection by a stunning margin. (He had won the largest popular vote margin in American history, and the best electoral vote margin since James Monroe ran unopposed). But the justices on the Supreme Court had publicly expressed opposition to Roosevelt’s policies. Because six of the nine were over 70, Roosevelt’s plan would boot them off the bench. His argument was that they had grown too old to do their work, and that they had fallen behind. A lifetime term, Roosevelt said, “was not intended to create a static judiciary. A constant and systematic addition of younger blood will vitalize the courts.”

But Roosevelt’s statement that the Court was behind on its work wasn’t true. His plan was met with roaring opposition as letters poured in from around the country. Even his vice president, John Nance Gardner, expressed displeasure as the plan was read aloud in Congress, holding his nose and making a thumbs-down gesture. In the Senate, Roosevelt could only gather 20 votes for his plan.

Roosevelt wasn’t able to make any changes to the Supreme Court. Yet, perhaps because of his maneuvering, he convinced one justice, Owen Roberts, to switch his vote to support many New Deal policies.

Given the outrage at the time of Roosevelt’s proposal, and it’s ultimate failure, it’s no wonder that the idea of changing the composition of the court is often met with distrust and derision. But there is nothing in the Constitution that says the Supreme Court has to stay at nine justices, and, indeed, it has fluctuated between six and ten throughout American history. Perhaps Roosevelt could have succeeded if he had merely attempted to expand the Court as Congress did under Jefferson, Jackson, and Grant. 

Today, with the retirement of Justice Anthony Kennedy, the Supreme Court’s swing vote, the idea of changing the composition of the court has begun to gain traction among Democrats. As many liberals look down the barrel of thirty or forty years of conservative Supreme Court decisions, expanding the court to allow the appointment of more liberal justices could be the remedy they are seeking.