Dr. Kaye Whitehead (Courtesy Photo)

By Dr. Kaye Whitehead

When I was 13-years-old, my teacher made us memorize the Preamble to the Constitution. I used to read it every night, and early on, I believed that the words and the sentiment applied to everyone. I Was The People. My father, a Vietnam war era veteran and Civil Rights Movement activist, told me that Black people were the invisible hand that set this country’s moral compass. If America, he said, was ever going to be the America that the White founding fathers wrote about, then it was up to us. He talked about the three branches of government and why he believed that the most vital branch, the one that got the least attention but was directly responsible for how we lived, was the Judicial Branch. 

In his opinion, the real power was not to enforce the laws or even make the laws but to interpret them. It’s the grey area, he explained, that determines district lines or school integration. It is the interpretation that shapes the Miranda law or strengthens or weakens the 13th Amendment. He would point at me and then at himself and say, “We Are The People,” not them. It is our job to remind them. He would often cite the 58-years between the 1896 Plessy v. Ferguson case that upheld the constitutionality of racial segregation and the 1954 Brown v. Board case that ruled that racial segregation was unconstitutional as an example of how long it takes for the Supreme Court to “overrule” itself. He would hit the dashboard and say that people failed to understand how the court’s interpretation of the law directly shapes this country. Thurgood Marshall knew this, he said, not only because he was on the legal team that challenged Plessy but because he lived through it and consciously chose to use his own experiences as a lens through which to see and interpret the law. 

During the 1991 confirmation hearings for Clarence Thomas, my father and I spoke on the phone every night. He was furious that the Republican Party was using their political advantage to fill the Marshall seat with a Justice who was Black but who was not using his own experiences to influence how he interpreted the law. I could hear the frustration and anger and fear in his voice. All my skinfolk, as Zora Neale Hurston once wrote, ain’t kinfolk. My father was right to be worried as Thomas has spent the last 28 years on the Supreme Court and is now the court’s most conservative justice. My father believes that our nation’s heart and soul’s battleground is the courtroom, not the streets or the schools or the churches. This year the Supreme Court will decide on the Affordable Care Act, elections, religious rights, technology, the Mueller investigation and, quite possibly the 2020 election, to name just a few. 

Like my father, Donald Trump and the Republican Party understand where the battle is happening as Trump has already successfully appointed over 200 federal judges to lifetime appointments. This record is remarkable as Trump has appointed almost a quarter of all active federal judges in the United States. By contrast, in eight years, Barack Obama appointed 312 of the currently active federal judges; George W. Bush appointed 166; and Bill Clinton appointed 87. What is even more striking about his record is that Trump has appointed 53 appeals court judges, a powerful position as they are the regional gatekeepers who provide the final word on most appeals that do not end up in the Supreme Court. Even though Trump has appointed more women than other recent Republican presidents (he has appointed 48), 85 percent of all of his appointed jurists are White. So, if the battleground is indeed the courtroom, then the people who are determining this nation’s heart and soul are still overwhelmingly White, male, and conservative. As we watched his tweets and complained about his erratic, maniacal behavior, Trump, with the help of the Republican-led Senate, has quietly transformed We The People back into They The People

Karsonya Wise Whitehead (todaywithdrkaye@gmail.com; Twitter: @kayewhitehead) is the #Blackmommyactivist and an associate professor of communication and African and African American studies at Loyola University Maryland. Recently selected for the Essence Woke 100 List, she is the award-winning host of “Today With Dr. Kaye” on WEAA 88.9 FM. She lives in Baltimore City with her husband and their two sons. Her book, “Letters to My Black Sons: Raising Boys in a Post-Racial? America” was just rereleased. She is sheltering in Baltimore with her husband and their two sons.

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