In this op-ed, Chase Strangio, a staff attorney with the ACLU's LGBT & HIV Project, explains why the Supreme Court has long been a tool of oppression.

Each morning I wake up and brace myself for whatever new horrors the day might bring. The final days of June were no exception.

My week began in federal court in Winston-Salem, North Carolina, where my ACLU colleagues and I had a hearing in our case challenging North Carolina’s anti-LGBTQ laws, the now-repealed HB2, and the newly-enacted HB142, which prohibits local non-discrimination protections for LGBTQ people and prevents transgender people from obtaining authorization for use of any restrooms in government buildings.

Standing up in court to challenge the constitutionality of laws and policies that restrict the ability of trans people to safely navigate public life, I thought about our many clients through the years who have had to fight - and are still fighting - to simply survive as their authentic selves. In a recent opinion from a federal appeals court in another ACLU case involving trans students, now retired Judge Davis recognized “[o]ur country[‘s] ...long and ignominious history of discriminating against our most vulnerable and powerless.”

“We have an equally long history, however, of brave individuals….who refused to accept quietly the injustices that were perpetuated against them,” he continued. “These individuals looked to the federal courts to vindicate their claims to human dignity, but…the judiciary’s response has been decidedly mixed.”

By Wednesday, Judge Davis’s reflections felt particularly prescient, when Supreme Court justice Anthony Kennedy announced his retirement from the Court. Justice Kennedy has often cast the deciding vote in pivotal 5-4 decisions from the ideologically divided Court. For decades, he was a moderating force on the Court, and his departure will undoubtedly imperile already inadequate legal protections for LGBTQ people, people of color, immigrants, people with disabilities, people caught up in the criminal legal system, women and others. The retirement announcement was a huge blow in an already difficult week and suddenly it felt like we had crossed a threshold in society’s path toward the Handmaid’s Tale.

But the reality is that long before Kennedy’s departure, the Supreme Court has been a tool of oppression.

Just a day before, Tuesday June 26, the Supreme Court issued a decision — which Justice Kennedy joined — upholding President Trump’s “Muslim ban.” The devastating decision validates the anti-Muslim policies and rhetoric of the Trump administration and affects millions of people around the world. Comparing the Muslim ban to the internment of Japanese-Americans by the government during World War II, Justice Sonia Sotomayor dissented from the majority’s decision. Like the Supreme Court’s decision in 1944, upholding Japanese internment, Sotomayor warned that the “Court’s decision upholding the Government’s policy would prove to be ‘a far more subtle blow to liberty than the promulgation of the order itself,’ for although the executive order was not likely to be long lasting, the Court’s willingness to tolerate it would endure.”

Though the lower federal courts initially stepped in to block the Muslim ban in January of 2017, the Supreme Court’s decision was a stark reminder that the courts alone cannot save us.

In addition to the Court’s devastating decisions upholding the Muslim Ban this week and Japanese internment in 1944, there have been centuries of Court decisions serving the governmental and societal structures of white supremacy. The Constitution itself was drafted to preserve the ownership of Black and Brown human beings through the chattel slave economy.

Though slavery was formally abolished — outside of prisons — with the ratification of the Thirteenth Amendment in 1865, in Plessy v. Ferguson, the Court in 1896 upheld racial segregation. The decision not only maintained legal structures designed to subjugate Black people, but also blamed Black people for any stigmatic injury flowing from the so-called “separate but equal” systems of forced segregation. Of the plaintiff’s challenge to a Louisiana law mandating segregated railway cars, the Court in Plessy wrote, “We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”