Abortion rights protesters condemn the overturning of Roe v. Wade outside the Supreme Court in Washington D.C. on June 25, 2022.

The Courts Won’t Save Us

WORDS BY YESSENIA FUNES

PHOTOGRAPHS BY TIM EVANS

In the face of recent Supreme Court rulings, The Frontline looks back at history to remind us that the courts are operating as they were always designed.

The courts are meant to be a place of justice. It’s where the guilty go to be punished and the innocent go to be freed. We know this isn’t always the case—the line between guilty and innocent is often blurred by who has the resources and power to obtain freedom. The courts are also a place, however, where decisions can reverberate for centuries. Sometimes, there is no one to be guilty or innocent—sometimes, the courts just assess what’s legal. 

 

We’re seeing that now with recent Supreme Court rulings, but throughout history, the technicalities of law have not always sided with the oppressed. After all, slavery was legal. As was the forced removal of Indigenous people from their lands in the 19th century. This legacy lives on in the present-day reality of the U.S. court system, especially in the wake of Donald Trump. Trump appointed more than 200 judges during his four years in office. They’ll be in these positions for life. 

 

Welcome to The Frontline, where we understand the courts are operating as they were designed to. I’m Yessenia Funes, climate director of Atmos. During this moment where the highest court in the U.S. tears down reproductive rights, bolsters gun rights, and chips away at tribal sovereignty, it’s important to remember the history of our court system and look elsewhere to forge climate policy that propels human rights forward.

 

 

 

 

 

 

Chase Iron Eyes grew up on the Standing Rock reservation where his mom worked for the tribal government. He’d spend a lot of time within the tribal chambers hearing deliberations around upcoming decisions. Oftentimes, when the conversation would veer towards the topic of the U.S. government’s relationship to the tribe, leaders would need to find someone who was well-versed within this specific field of law. That someone was always white men. They would dictate to the tribe what was and wasn’t legally possible. 

 

What, are these white guys magic? Iron Eyes remembers thinking. “I was raised differently by my mom than to let someone keep their boot on my neck, and so I never understood why our great Indian leaders, when they reached that point of impasse, would have to call in the white guy. What is this lawyer magic from this magician who shows up? I could find out whatever this guy can find out.”

 

So that’s exactly what he did. Iron Eyes pursued a legal career and is now the lead counsel for the Lakota People’s Law Project, a legal advocacy group that aims to protect Indigenous lands and Lakota culture. Individuals like Iron Eyes offer some hope for the future of the courts—but the judicial system is operating on a foundation that’s built on white supremacy. 

 

The Constitution is the ultimate rule of law in the U.S., but it was written more than 200 years ago by cis white men, many of whom supported slavery by holding enslaved people themselves. Courts, judges, and justices interpret the law through this document, yet history shows how these rulings often erode the rights of the most marginalized.

Elizabeth Page White leads a chant: my body, my choice.
A protester holds a sign that reads, “Respect our existence or expect resistance.”

Let’s take a look at the Supreme Court and its beginnings. The Constitution itself never granted the highest court the power to deem what is and isn’t constitutional, explained Orville Vernon Burton, a history professor at Clemson University and co-author of Justice Deferred: Race and the Supreme Court, which assesses the court’s racial injustice. The Supreme Court actually set that precedent through one of its first decisions back in 1803 in Marbury v. Madison.

 

“The case also confirms that politics, even partisan politics, has never been absent from the Supreme Court’s work,” Burton wrote in an email. “Throughout U.S. history, many Supreme Court rulings have been bad, and some are shameful.”

 

One of those came in 1832 when the Supreme Court ruled on Johnson v. M’Intosh, which essentially allowed federal colonial powers to take over tribal lands upon discovering them. This was the beginning of a long line of rulings where the U.S. court system infringed upon tribal sovereignty. In Oklahoma v. Castro-Huerta, the Supreme Court moved last month to attack tribal sovereignty even further by giving authority to state governments over tribal lands. 

 

“For Native people, the Indian Wars have never ended,” Iron Eyes said. 

 

The SCOTUS has also decided it will rule on the constitutionality of the Indian Child Welfare Act, which helps keep Indigenous children with Indigenous families and protect Indigenous cultures at large. Though these cases and this history may not feel directly connected to climate change, Iron Eyes points to the Standing Rock movement’s opposition to the Dakota Access Pipeline in 2016 and the way federal and state leaders ignore calls from tribal governments when it comes to fossil fuel infrastructure. 

 

Ultimately, this attitude—both from elected officials and the people who adorn our courts—stems from a belief that Indigenous people (and other people of color) are less than. It stems from white supremacy. And this is what drives the right-wing’s current assault on women, LGBTQIA+ people, Black people, tribes, and all of those who are marginalized. The Supreme Court has made clear that the Indian Child Welfare Act isn’t the only issue up for debate—the court is also eyeing cases affecting same-sex marriage and access to contraception. 

 

“We’re witnessing a deconstructing of the very racist, genocidal policies that our country was founded upon,” Iron Eyes said. “Those who do not want to see a new America… these people are unwilling to say this is up for negotiation right now.”

 

Much of what we’re seeing unravel now has been a very intentional play from the American Republican party. President Trump appointed nearly as many federal appeals court judges in one term as President Barack Obama was able to appoint in two. The 226 judges Trump put into power can now shape the way law works in the U.S. That’s especially critical in federal appeals courts, which often decide whether a case moves forward. Meanwhile, the three Supreme Court justices Trump appointed are already flaunting the power they carry. 

A day after the court’s highly contentious overturning of Roe v. Wade, protesters hit the streets.

“This is the most radicalized Supreme Court in American history,” said Matthew Fletcher, a law and culture professor at the University of Michigan, in an email. “No precedent is safe from this majority’s politicized decision-making.”

 

Like his predecessors, Trump mostly appointed white men. The pervasiveness of white men within the legal system contributes to the wider problem Black, Indigenous, and other people of color face when they’re forced to engage with courts. A more diverse judicial system is “critically important,” Fletcher said. Even that, however, may not be enough to save us from climate injustice.

 

“The incredibly vast majority of judges throughout American history have been conservative white men,” Fletcher said. “They established centuries of negative precedents before BIPOC judges and legislators came along. There’s almost no way to undo that groundwork, except with radical lawmaking. And that’s not happening for progressive people right now.”

 

The U.S. needs new laws—but it also needs better enforcement of its current laws. At the Center on Race, Poverty, and the Environment, which litigates on behalf of communities that face environmental harm, executive director Caroline Farrell has seen how the courts give federal and state agencies authority when it’s in the best interest of private polluters—and how the courts do the exact opposite when it’s in the public’s interest. We saw this in the recent decision in West Virginia v. Environmental Protection Agency, which has complicated efforts from the EPA to reduce emissions and power plant pollution at a national level. Instead, the ruling has bolstered the argument in support of state rights.

 

“State rights have often meant, for BIPOC communities, the rights to discriminate and the rights to treat people differently based on different characteristics in demographics and remove the protection of the federal court system from them,” Farrell said. “Federal protection means there’s a common floor for our constitutional rights and it’s not a matter of where you live [for] how much or how little you are protected.”

Following the Supreme Court’s decision to reduce regulatory power from the EPA, protesters wrote critical chalk messages outside the Washington D.C. home of Sen. Jim Inhofe, a Republican from Oklahoma and outspoken climate change denier, on June 26, 2022.

She knows courts have their limits, but that doesn’t make them useless. Throughout her work, Farrell has seen the center win cases and witnessed the courts enforce laws around environmental protection and civil rights. Her team has also been able to identify how laws need to change or if there’s a need for a new law altogether. That insight is thanks to the courts.

 

Kirsten Matoy Carlson, a professor of law at Wayne State University, perhaps put it best: “The law is both a shield and a sword. It’s a tool. It’s a resource.” 

 

Whoever gets to interpret the law can dictate what it morphs into. Right now, many would argue that the courts are using the law as a sword. And those on the defense are ready. Many Indigenous peoples in the U.S. have been ready, according to Iron Eyes. They’ve been on the bloody end of the sword before due to a judicial system that deems it legal to take their land and children. Iron Eyes refuses to see that history repeat itself.

 

“Indigenous people are willing to defend sovereignty by the barrel of a gun,” he said. “This isn’t just a fight among lawyers and academics and scholars and people who sit behind cubicles and ivory towers. This is a real fight in our lives.”

 

And it’s a fight that’s carried on for centuries. A fight rooted in white supremacy and colonial rule. But the majority is shifting—and the people are rising. The courts can only sanction so much abuse before the revolution prevails.

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