Remarks made by a commissioner at the July 7 County Commission meeting, that were reported in the Banner, warrant a response and a look back at American history. Specifically, a commissioner is quoted decrying, “... the death-defying grasp of the Supreme Court that has had the audacity to legislate from the bench.”
It is not clear if the commissioner is referring to the United States Supreme Court or the Supreme Court of Tennessee, or to what decision of either court. In any case, he spoke words — “legislating from the bench” — that are code words for “judicial activism,” that for many folks in my generation are seen as coined by racist groups like the John Birch Society and the White Citizens Councils, and used to attack the U.S. Supreme Court after it announced its decision in “Brown vs. Board of Education,” holding segregated schools are inherently unequal, and so, unconstitutional.
Those who lived through those times recall, after the “Brown” decision came down, billboards sprang up along the highways imploring “Impeach Earl Warren.” That also was a sentiment expressed by many of our legislators and leaders of that time, the so-called “voice of the people.”
Warren, of course, was Chief Justice of the U.S. Supreme Court when “Brown” was decided. A Republican and former attorney general and governor of California, he was nominated for his position on the Court by President Eisenhower.
Where would our country be today if the members of that Court had not had the courage and independence to decide “Brown?” Were they “judicial activists?” No. Did they “legislate from the bench?” No.
What they did was read the Constitution, particularly the Fourteenth Amendment, commonly referred to as the “Equal Protection Clause.” It provides no state shall “... deny to any person within its jurisdiction the equal protection of the laws.”
It still is sobering to recall it was 10 years after “Brown” before the Congress of the United States, the “voice of the people,” passed the federal Civil Rights and Voting Rights Acts, providing for black Americans the same rights at the polls, in housing and all forms of public transport and accommodation that white Americans enjoyed.
So, with an election on us, I hope those who vote will reflect upon how important it is to our nation and to Tennessee that we maintain a competent, independent judiciary, free of partisan obligation or influence, prepared to take hard, unpopular decisions when called upon.
— Michael E. Callaway