On referendums and supreme court rulings to bring social justice

I’ve been thinking a lot about politics lately (as you can tell) and the role that politics play in bringing social justice. We’ve been listening to More Perfect (a podcast about the US Supreme Court) and it’s been blowing my mind.

Go to http://www.wnyc.org/shows/radiolabmoreperfect to subscribe

Recently we listened to a podcast about test-case trials. In cases where people feel the law is unjust, or needs to be challenged or reinterpreted, but there’s no way to get that through the normal political process (like the State representatives voting on it), Civil Right’s activists find a case where an individual is being treated unfairly under the law, and take the issue to court. 

This all started when Tennessee was refusing to update their voting districts (giving the rural, white people in the state way more representation than the thousands of black people in the cities). Obviously the representatives didn’t want the districts redrawn– they had got political power because of those biased districts, and they wanted to keep that power. No way would they vote to redraw the lines if it came up in the State legislature. But if they were unwilling to vote themselves out of power, was there no way to get voting rights for all those black Americans in the cities? Enter the Supreme Court.

Or take the example of segregation on buses and trains. In a manufactured case (the railroad company was in on it!) a black man tried to ride in a white car, and when they kicked him off they sued, and it went all the way up to the Supreme Court. It wasn’t really about the individual man– it was about trying to find an individual case that could challenge the whole law.

The NAACP became super skilled at this– it was because of these kind of cases that the Voting Rights Act and the Civil Rights Act ended up getting passed. And why does this happen? It ends up working its way up to the top because if it were up to the local people on the ground, nothing would change. They like the law the way it is. If the majority of your constituency is racist, then in a democracy, you’re going to get racist laws.

Edward Blum (npr.org)

In the past 10 years, this strategy has started to circle back in on itself, because of one man , Edward Blum, who thinks Civil Rights Laws are unconstitutional is using individual cases to get things like affirmative action and the Voting Rights Act repealed. He’s been behind 6 cases that have come before the Supreme Court recently, and is responsible for the repealing of the Voting Right’s Act. (Listen to the episode here)

Why does the Voting Rights Act matter? One of the provisions in the act is that Southern States with a history of racism and blocking African Americans from the vote needed to have Federal oversight on any of their voting laws. Blum’s basic argument is: “Jim Crow was a chokehold. Slavery was evil. But we’ve come so far, and these anachronistic laws are putting race front and centre when we need to move beyond that.”

The podcast interviewer asks him, “Well, what if the reason things are so much better is precisely because there are laws keeping racism in check?”  In other words– what if we as humanity haven’t progressed that far? What if we’re all actually still pretty racist in the South? What if we haven’t had a change of heart, and it’s just the law that’s keeping us being nice and equal to our black neighbours? 

Blum is convinced that these laws are outdated for our times, but sociologists and political scientists aren’t so sure. They point to the recent rise in Voter ID laws in the South (only able to be introduced because their voting laws now don’t have to pass Federal approval) as a sign that it was only the law keeping us in check, not a sudden change of heart. The Courts have since struck down voter ID laws as unconstitutional because they make it inordinately difficult for many poor and minority voters to vote.

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Voter ID Law protestors: thinkprogress.com

Still. Something about sneaking past the common man on the street to run something through the courts seems undemocratic and I don’t like that. But then I think about the Brexit referendum,  or the recent Columbia vote. And I realise straight unmediated democracy can be quite terrifying. If left up to the Southern States, would Jim Crow laws still be on the books in the South?


This makes the South African 1992 referendum on ending apartheid so much more intriguing to me. Sure there’s people who think the whole peaceful Mandela takeover was a terrible cop-out. But I’m fascinated by the fact that in a poll of only white people, the majority (about 70%) voted YES to end apartheid. It probably is because the ruling parting at the time, led by De Klerk, wanted people to vote yes (and had basically complete control of the media). Perhaps white people were shocked and surprised when the NP lost the national election two years later. Perhaps the NP didn’t even realise what it was campaigning for (kind of like Brexit). But maybe something about the anti-apartheid movement in South Africa had broken through to white South Africa, in a way that perhaps the Civil Rights movement of the USA was never able to do. After all, white people are a minority in South Africa– the US Civil Rights movement had a much bigger section of the population to convince. I don’t know. But it’s got me thinking.


I think we need laws. I like to be part of a society that is protecting people’s rights, even if the common person doesn’t want those rights protected. But I’m becoming more and more convinced that politics is not the solution to the issues of social justice we face in the USA and SA. Politics can do something, Courts can do something, but they can’t do enough.

In a democracy, referendums or politicians both reflect what we the people want. And a lot of the time, I don’t think we want what is just.  

We need to change people’s perspectives. We need more people who seek justice and love mercy. We need people educated about the repercussions of their actions. We need more people who actually care about their neighbours. And a law can’t create that.

Church? Maybe it’s your turn. 

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