AUGUST 27, 2021
BY AND LARGE, Americans tend to trust our courts and the judges who inhabit them. In particular, we allow the Supreme Court of the United States (SCOTUS) to serve as a check on Congress and to make critically important decisions on behalf of our otherwise democratic society. We either don’t understand or don’t care that the Supreme Court is the most elite club of all American institutions.
Ever since the founding of this country, only 115 people — all white males except for four white women, one Latina, and two black men — have sat on our highest bench; that’s barely more than twice the number of United States presidents. (There have been 46 presidencies, but only 45 presidents, since Grover Cleveland served two nonconsecutive terms. That number, by the way, is almost three times more than the mere 17 men who have served as chief justice of our highest court.) Yet most of us cannot even name the nine justices currently occupying the Supreme Court. It should not surprise us, then, that Americans don’t know whether the Court tilts politically in any, let alone in which, direction.
In their new book, Justice Deferred: Race and the Supreme Court, Clemson University Professor Orville Vernon Burton and respected civil rights lawyer Armand Derfner demonstrate that the United States judiciary constructed race as a legal concept and, in the process, often tilted toward racism. In an encyclopedic examination of judicial racism that distills over 200 legal cases (an exasperating majority of which make the reader want to scream Foul!), Burton and Derfner are as comprehensible in style as they are comprehensive in scope, delivering as much about race generally as about racial justice. Alert to the civil rights history of all racial groups, the authors focus primarily on African Americans. There is not much new here for constitutional scholars or legal historians (though they will certainly learn some social history), yet this is an extremely important and timely story very well told.
On the heels of the Constitutional Convention, Alexander Hamilton, James Madison, and John Jay composed 85 essays (later called the Federalist Papers) intended to persuade America to ratify the Constitution and accept the three branches of government proposed within it. In Federalist No. 78, Hamilton insisted, “the judiciary is beyond comparison the weakest of the three departments of power” and would “always be the least dangerous.”
The history presented in Justice Deferred suggests otherwise. The Supreme Court has wielded enormous power and has done some good but also grave harm.
While acknowledging that “politics, even partisan politics, has never been absent from the Supreme Court’s work,” the authors are careful not to condemn the Court outright. Instead, when it comes to SCOTUS’s racial decisions, Burton and Derfner let the history speak for itself.
The history isn’t pretty. When it comes to civil rights, apart from a window between the 1930s and early 1970s, “the Supreme Court spent much of its history ignoring or suppressing those rights.” It is hard to read this story — variously dubbed “complicated” and “perplexing” by the authors — as anything other than a disappointing and dispiriting betrayal of African Americans, Native Americans, Asian immigrants, other minorities, and civil rights.
The justices of the Supreme Court have always had choices: “[O]n one side, interpreting and applying [civil rights] laws in the broadest interpretation, to mean the most they can mean; on the other, treating such laws narrowly, to mean the least they have to mean.” That is the line that divides the Court and, because the justices erred toward the narrow path on civil rights, divided our nation. The Supreme Court too often rendered the laws “mere shadows and set African Americans and other nonwhite people adrift.”
A quick aside about that dividing line. Burton and Derfner rather confusingly claim that while some observers label the Court’s narrow interpretations as “conservative,” the same supposedly conservative justices read other constitutional amendments more broadly or, dare it be said, more liberally. But that is devil’s play. It is important not to lump the contraction or expansion of rights as either conservative or liberal; the narrow contraction of 14th Amendment civil rights and the broad expansion of the Second Amendment “right to bear arms” are both conservative in contemporary political parlance.
Burton and Derfner split their history of race-based jurisprudence into 13 engrossing chapters that intelligibly explicate difficult legal matters without complicated legal jargon. The timeline begins with three significant slavery-related cases. Since slaves had no rights, it stands to reason that the bulk of this story unfolds after emancipation and continues from Reconstruction through Jim Crow to the mixed signals and occasional “slow turnaround” of the 1930s that suddenly became more progressive in the 1950s and ’60s, but shifted back toward conservative anti–civil rights bias from 1968 to the present.
In important respects, the Constitution put the country on the road to civil war. Burton and Derfner point to three constitutional compromises — what have come to be known as the three-fifths clause, the slave-trade clause, and the fugitive slave clause — without which the Founders “would not have adopted that document.” Historians debate that point, just as they have long debated whether or not the Constitution was “proslavery” in character. Yet most agree that the three-fifths clause (responsible for the way slaves were counted for purposes of representation and taxation) advanced the cause and interests of slaveholders more than any other element of the Constitution, with the possible exception of the Electoral College (a feature of our government that has consistently proven racist, but that Burton and Derfner barely mention).
As with most every legal case considered by Burton and Derfner, the three paramount cases pertaining to slavery (The Amistad from 1841, Prigg v. Pennsylvania from 1842, and Dred Scott v. Sandford from 1857) are deftly presented. The decision in The Amistad was “a landmark Supreme Court victory for freedom,” where SCOTUS liberated a shipload of kidnapped Africans on route to enslavement. It “demonstrated the potential of the Court to make choices and rule for freedom, but it would be followed by very few successful Supreme Court outcomes for Africans or African Americans for the next seventy years.” Indeed, as was made clear by the decisions in Prigg — where the Court upheld slaveholders’ rights to seize alleged runaway slaves and take them south without so much as a judicial hearing — and Dred Scott — where Chief Justice Roger Taney opined that people of African descent were “beings of an inferior order […] so far inferior, that they had no rights which the white man was bound to respect” — SCOTUS seemed quite disinclined to rule for freedom.
In the five years following the Civil War, during the early years of Reconstruction, Congress enacted over 30 civil rights statues protecting newly emancipated slaves, all under the final clauses (the “enforcement clauses”) of the 13th, 14th, and 15th Amendments to the United States Constitution. While the Bill of Rights (the first 10 amendments to the Constitution) protected citizens against possible violations committed by the federal government, slavery and secession demonstrated a need to also protect citizens from the states. At the same time Americans reconstructed their war-torn nation, they also reconstructed the Constitution. Burton and Derfner rightly claim that, through these three new amendments (the 13th ended slavery, the 14th made citizens of African Americans, and the 15th prohibited disenfranchisement on the basis of race), the Constitution “was turned upside down,” as is considered in a chapter appropriately entitled “A New Birth of Freedom.”
Despite the fact that most of the sitting justices were appointed by the same Republican Party responsible for that “new birth,” the Supreme Court seemed hellbent on turning back the hands of time. Despite the obvious authority to buttress civil rights for African Americans, “they instead chose a retreat and would neuter all three Reconstruction Amendments and Congress’s enforcement laws.” The justices simply refused to accept that the new amendments redefined the relationship between the federal and state governments. Through six essential cases (Slaughter-House Cases in 1873, United States v. Cruikshank and United States v. Reese in 1876, Virginia v. Rives in 1880, and United States v. Harris and the Civil Rights Cases of 1883), the Court tore down the wall of protections built by Congress. Whole books have been devoted to those decisions, which collectively dismantled the prospects for civil rights and equal justice.
From 1873 to 1883, “[w]hite wrongdoers […] learned what they saw as a valuable lesson: they could harm and even murder African Americans with impunity, and they could use tricks to keep African Americans from voting.” Or serving on juries. Or staying at public inns. Or entering public places. Or looking to the state for protection.
In the Civil Rights Cases, less than 20 years after slavery ended, the nation’s highest court held that “there must be some stage in the progress of [the black man’s] elevation when he takes the rank of a mere citizen, and ceases to be special favorite of the law.”
We now know that the Supreme Court’s definition of “special favorite” tested credulity; indeed, it cleared the stage for Jim Crow. Literally. The name Jim Crow is taken from 19th-century blackface minstrel performers, used to describe the period of mandated white supremacy that “dominated every aspect of legal and social relations from cradle to grave.” Here again, Burton and Derfner are able to distill the period to its most salient features. “Jim Crow was built on two fundamental and related supports, the twin pillars of segregation and disenfranchisement,” both of which “would receive the Supreme Court’s blessing, not once or twice, but in a parade of more than twenty cases over the next two decades.”
Starting in 1890, with Louisiana’s Separate Car Law (requiring equal, but separate, accommodations on railroads) and the Mississippi Plan (reducing the number of African American voters from 200,000 to 8,000 in just two years), the racial counterrevolution in America picked up significant steam.
In short order, multiple states enacted separate car laws. With their now-infamous “separate but equal” decision in Plessy v. Ferguson (1896), the justices sent the message that racial prejudice is a fact of life, an unavoidable element of human nature. Burton and Derfner observe, “The ruling in Plessy not only accommodated prejudice but mandated it,” since many Northern states required integrated cars. Nevertheless, it seems true that “[t]his conscription of every white person into the army of racial discrimination gave official segregation a totalitarian cast.”
While many Southern states hesitated to disenfranchise African Americans, unsure how the Supreme Court would respond, it did not take long before state governments learned that they had nothing to fear from the judiciary. As Burton and Derfner show, when the Mississippi Plan (a scheme to charge African Americans unfairly high poll taxes) came before them in Williams v. Mississippi (1898), the justices “endorsed the lie […] that racial discrimination is constitutional” and, in the process, “shredded the Fourteenth and Fifteenth Amendments.” It is hard to say which Supreme Court decision was the “most disgraceful,” but this one is near the top of the list.
Segregation and disenfranchisement were hardly the whole story. Many white people got madder and meaner. From Virginia to Texas, it is not cavalier exaggeration to say that hunting and lynching African Americans became the sport of choice. Newspapers describe the brazenly carnival-like atmosphere as spectators gathered from all around, traveling sometimes by specially arranged excursion trains, to torture, dismember, and burn Black people. An abundance of pictures and postcards attest to the celebrations of thousands at these horrid affairs.
Brushfires of violence broke out almost daily. Worse, white wildfires (not “race riots,” which are typically and unfairly attributed to black violence) ignited all over the nation, starting in the 1870s then escalating in size and number in the Red Summer of 1919. Some of the most notorious incidents include Hamburg, South Carolina, in 1876; Wilmington, North Carolina, in 1898; Charleston, South Carolina, in 1919; Elaine, Arkansas, in 1919; Tulsa, Oklahoma, in 1921; and Rosewood, Florida, in 1922. Burton and Derfner suggest that things were so bad that there was little the Supreme Court could do to stop the bloodshed.
A truly shocking example from 1906 makes the point. The Court attempted to slow the legal proceedings in the case of a black man named Ed Johnson from Chattanooga, Tennessee, accused of raping a white woman. Justice John Marshall Harlan sent a telegram to the local sheriff, Joseph Shipp, ordering an appeal of the case. News of Harlan’s telegram made the front page of the Chattanooga News, provoking a mob that stormed the jail, took Johnson, and lynched him in the middle of town. On his body the mob left a note: “To Justice Harlan — Here’s your nigger now.” Officials in Washington, including President Theodore Roosevelt, were stunned. The nation’s highest tribunal had been openly flouted, leading to “the first and only time in its history, the US Supreme Court itself put someone on trial.” In United States v. Shipp (1909), the Court found Sheriff Shipp and six other men guilty, yet none of the defendants served more than three months in jail. As Burton and Derfner conclude: “Back in Chattanooga, the Court’s ruling made little difference.” The message was clear for all African Americans: black lives really did not matter.
The period was rendered all the more grotesque by the way in which the 14th Amendment, designed to protect black citizens from white supremacy, was actually put to use. Burton and Derfner provide the relevant facts: “The Supreme Court decided about 600 Fourteenth Amendment cases between 1868 and 1912, of which 80 percent were about corporations and fewer than 20 percent were about African Americans.” The Supreme Court determined that corporations were “persons” entitled to “due process” while African Americans were practically a lower form of life who should expect to be treated accordingly.
Not quite all was lost. “With one step forward, then one step back,” Burton and Derfner observe. “The Court did not lead the way out of Jim Crow, but it did largely end the downward spiral and suggested a path for the next period.” There were glimmers of hope for civil rights, faint though they were, largely due to one extraordinary man and one unforgettable case.
By this account, Charles Evans Hughes — former associate justice of the Supreme Court who resigned to run for president against Woodrow Wilson and was nominated in 1930 by President Herbert Hoover as chief justice — “was a breath of fresh air” who is “not well remembered today for his race opinions, but he should be.” (It is worth noting that Hughes was first nominated to the bench by William Howard Taft, who in just one term as president nominated six justices to the Court, a number equaled only by President George Washington, who nominated the entire first Court, and surpassed by Franklin Delano Roosevelt, who nominated eight justices to the Court.) Ten days after Hughes took his seat as associate justice, the Court heard arguments in Bailey v. Alabama (1911).
Alonzo Bailey fell victim, like many black men at the time, to a phony contract system. The state of Alabama enacted laws making it exceedingly difficult for black contract laborers to leave their jobs without falling prey to breach of contract restrictions. The state also prohibited defendants from testifying in their own legal case. With support from people like Booker T. Washington, Alonzo Bailey’s case reached the Supreme Court. Hughes wrote the majority opinion in an 8-1 decision where Justice Oliver Wendell Holmes Jr. was the lone dissenter. Burton and Derfner flag this sentence from the decision: “What the state may not do directly, it may not do indirectly.” In essence, by preventing states from even indirectly accommodating the “involuntary servitude” prohibited by the 13th Amendment, the Court effectively reversed what it had endorsed in the Williams case 13 years earlier, while also exposing the torturous convict-leasing program prevalent throughout the South.
According to Burton and Derfner, the decision in Bailey “charted a new course for the Supreme Court.” Alas, the “Court’s treatment of race discrimination […] from 1910 to 1935 was mixed — but a mixed record was a great improvement over previous decades.” Had Hughes not left the bench in 1916, things might have been different, as evidenced by a handful of decisions once he returned as chief justice in 1930, such as Aldridge v. United States of 1931, Powell v. Alabama of 1932, or Norris v. Alabama of 1935.
Chief Justice Hughes also wrote the opinion in Missouri ex rel. Gaines v. S.W. Canada in 1938, which set the Court on the path toward desegregation of schools. The state of Missouri prohibited blacks from entering law school, while insisting that they would offer “equal” facilities for blacks but for (what they falsely claimed was) the lack of demand. Hughes and five other justices weren’t having it. Three years later, in Mitchell v. United States, the Court further tightened the “equal” half of “separate-but-equal” by applying the rule to private as well as state actions.
Where the Supreme Court broke new ground on behalf of civil rights or Africans Americans, it typically involved one step forward and at least half a step backward. “Federal prosecution of southern officials was almost unknown before 1940,” at which point the Justice Department established a Civil Liberties Bureau. In Screws v. United States, the Court endorsed use of the long-dormant Civil Rights Act of 1866 to inhibit errant policing, but not without the qualifier that prosecutors demonstrate “specific intent” of violence by the relevant officials.
Almost every page of Justice Deferred contains one or another fascinating factoid. In their dedication to historical context, the authors trace key legal terms to their origins. Prior to their discussion of “restrictive covenants” — the state-sanctioned policies that allowed real estate developers to prevent black families from moving into the growing number of American suburbs — Burton and Derfner explain that federal agencies (Home Owners Loan Corporation and the Federal Housing Administration) encouraged segregation and discrimination against African Americans by color-coding communities on government maps, with black communities drawn red (suggesting high risk), giving rise to the term “red-lining.”
After two decades of chipping away at Jim Crow and segregation, the Court finally addressed the constitutionality of “separate-but-equal.” While the effect of Chief Justice Hughes on civil rights has been obscure, Chief Justice Earl Warren is well known as a signpost for change (or “judicial activism”) at SCOTUS. In a chapter entitled “The End of Separate but Equal,” Burton and Derfner rightly pay substantial attention to Warren and the Court’s 1954 decision in Brown v. Board of Education, which effectively eviscerated segregation in schools and other venues. After Brown, however, the Court “shrank from meeting the challenge” from states determined to segregate and discriminate in Naim v. Naim and Williams v. Georgia. As is made clear, the United States Supreme Court has repeatedly proven itself capable of reading the political winds and ducking tough issues.
In a chapter on “opposing forces,” Burton and Derfner make clear that the decade between Brown v. Board of Education and the Civil Rights Act of 1964 saw substantial resistance to desegregation: “Hangings, shootings, drownings, and church bombings were epidemic.” Two other popular forms of resistance, apart from relentless violence, involved legislation and lawsuits against the National Association for the Advancement of Colored People (NAACP) and libel suits against the press (resulting in a critically important “freedom of the press” case New York Times v. Sullivan in 1964). The Supreme Court struck down anti-NAACP maneuvers in Alabama, then again “from Arkansas, Florida, Louisiana, Mississippi, South Carolina, and Virginia, while lower courts struck down similar schemes in other southern states.” The Supreme Court “never once” upheld any of several state attacks on the NAACP, the press, or the right to protest. In the battle between resistance and rights, SCOTUS finally pushed back against the resistance. It must be said, however, that that task was made much easier by the blatant “blundering” of segregationists. It was not that the Court necessarily favored the Civil Rights movement; rather, “the cases against them had little or no merit.” During those years, the Court consistently enforced the “equal protection clause” of the 14th Amendment, while they also “established important constitutional principles under its due process clause.”
With time, it became evident that the Supreme Court’s decision in Brown v. Board of Education was a major turning point in American history, “a new birth of freedom, again,” as Burton and Derfner put it. The big difference between the 1860s and the 1960s was that Congress, the executive branch, and the Court were in sync during the later period in a way they were not in the earlier period. Of the five civil rights acts passed by Congress in the post-Brown era — in 1957, 1960, 1964, 1965, and 1968 — the first was actually initiated by the Justice Department; it strengthened the Justice Department’s Civil Rights Division and created a new Civil Rights Commission with the power to bring lawsuits in recalcitrant Southern counties. The seeming partnership between the legislative and judicial branches marked the beginning of real change for African Americans, one where the Court not only upheld Congress’s civil rights legislation, it “brought the Thirteenth Amendment back to life […] holding that racial discrimination in property transactions, whether by state action or a private actor, is a ‘badge of slavery.’”
It seemed that racial discrimination would quickly become a thing of the past. Yet, contrary to what most Americans are typically taught — namely, that the judiciary is above politics and operates according to legal precedent — parties and personalities matter at the Supreme Court. Between President Richard Nixon’s election in 1968 and President Bill Clinton’s election in 1992, Republicans controlled the executive branch for 20 of 24 years. More relevantly, Jimmy Carter, the one Democratic president in this period, had no opportunity to name anyone to the Supreme Court, whereas the Republicans nominated and confirmed 10 justices to the bench. As is made painfully apparent in Justice Deferred, “Every one of the ten new justices was less supportive of civil rights than his or her predecessors.”
The remainder of the book takes a thematic turn toward a handful of important issues. First, there is a very useful consideration of the half-century of increasingly conservative Supreme Court jurisprudence. As the authors insist, “under Rehnquist and Roberts, the moderately conservative current [under Chief Justice Warren Burger] grew into a dramatic wave washing away major civil rights protections.”
From 1969 to 1986, the Burger Court decided over a hundred civil rights cases, the vast majority of which involved either employment discrimination or school desegregation. Chief Justice Burger “espoused a philosophy of judicial restraint, which meant […] putting limits on court enforcement of civil rights.” Shortly after President Ronald Reagan elevated Justice William Rehnquist to the position of chief justice in 1986 and followed up with the appointments of Justices Antonin Scalia and Anthony Kennedy, the Court housed a dependable five-vote conservative majority. That majority grew even more conservative first when George W. Bush nominated Chief Justice John Roberts in 2005 and Associate Justice Samuel Alito in 2006, and then further still when President Donald Trump followed up with three other ultra-conservatives (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). Burton and Derfner quoted a prophetic 1989 observation from Justice Harry Blackmun, a Nixon appointee who turned liberal during his time on the bench: “One wonders whether the majority still believes that race discrimination — or, more accurately, race discrimination against nonwhites — is a problem in our society, or even remembers that it ever was.” Given the current state of things, one wonders what Justice Blackmun would say about the Court today.
At the Supreme Court, perhaps more than anywhere, words matter. Debating (sometimes warring over) the meaning of words (such as “equality” and “discrimination”) and the concepts they form (such as “purpose” and “effect” — two principles that have guided the Courts’ reaction to anti-discrimination legislation) are at the heart of what the justices do, hence another concluding theme of Justice Deferred. While conservative justices tend to favor the difficult-to-determine-thus-easier-to-dismiss “purpose” behind legislation, liberal justices often prefer to assess the legality of congressional acts based on the “effect” of those laws. As when analyzing judicial decisions, Burton and Derfner are quite adept at making tricky legal concepts easily digestible for their readers.
The penultimate chapter is devoted to the “central battleground” of affirmative action. Burton and Derfner point out that affirmative action “on a far more massive scale than anything imagined today dates back to the desperate needs during the Great Depression of the 1930s.” Various programs relating to housing, employment, and farming were instituted and continued from the 1940s through the 1960s. But those programs were affirmative action on behalf of white people, resulting in an enormous racial wealth gap in America. By 2017, “the ratio of white to Black wealth remains at a staggering 9.7 to 1.”
Affirmative action plans became the preferred method for closing the gap, short-lived though those plans proved to be. By the 1980s, affirmative action for African Americans came under attack. Although President Ronald Reagan “was a committed opponent of affirmative action,” the Supreme Court continued to uphold the constitutionality of affirmative action in four of the six cases that came before it (including Regents of the University of California v. Bakke in 1978). The judicial rollback of affirmative action did not begin in earnest until the Rehnquist Court and its three new Reagan-appointed justices rejected an effort by the city of Richmond, Virginia, to address its history of discrimination in commercial and residential construction (City of Richmond v. J. A. Croson Co., 1989). According to Burton and Derfner, the Rehnquist Court “effectively put the courts out of the business of racial integration.”
The book’s final chapter addresses criminal justice. “Throughout slavery and Jim Crow, ‘law enforcement’ and the ‘criminal law process’ were often means of controlling and even terrorizing African Americans,” the authors insist, and even today “the protections are uneven, and the new century has also been one of mass incarceration.” The combination of all-white juries, uneven application of the death penalty, and disproportionate incarceration of African Americans, leaves little doubt as to the racialized nature of justice in America. As of 1970, there were about 200,000 people in state and federal prisons. In Terry v. Ohio (1968), the Supreme Court changed the rules for search and arrest, what has become known as “stop and frisk,” which substantially drove up prison numbers. The “war on drugs” also contributed mightily to the increase, as did the “three-strikes” (three strikes and you’re out) laws. Here we see that there “has been a racial cast to these developments.” By 2010, there were 1.6 million people in America’s prisons, more of whom were black than white; blacks made up 12 percent of adult America, but three times proportion of the prison population.
Justice Deferred is a gracefully composed and compelling read that cleanly and clearly synthesizes vast amounts of information. Yet, given all the wonderful historical context Burton and Derfner provide, it is curious how little backstory they offer about the justices themselves. With only a few exceptions (notably Chief Justice Earl Warren), we do not get to know the members of the Court. The justices are people, after all, susceptible to all the foibles and biases explicit within the human condition. What drove Justice Bradley to change sides from one case to another? How are we to understand the Great Dissenter Justice John Marshall Harlan? How did Hugo Black, who was once a member of the KKK, become a major (albeit Southern accented) voice on behalf of civil rights? Why was Chief Justice Earl Warren so far ahead of his times? Those questions may be unanswerable. But judicial decisions are surely a reflection of the fallible (and occasionally heroic) men (and too few women) who wrote them, which is an important democratizing dimension of this story.
There is also very little about the process or qualifications by which justices ascend to the bench. For much of American history, the justices (again, notably Chief Justice Earl Warren) were successful politicians rather than experienced judges. Burton and Derfner do point out that Justice Elana Kagan, appointed to the bench by President Barack Obama in 2010, “was the first member of the Court in nearly thirty years (since Justice O’Connor in 1981) who did not come from the ranks of federal appeals court judges.” It would be interesting to read the authors speculation, for example, as to why justices with lifetime appointments are so inclined to look back rather than forward.
The justices of the Supreme Court have repeatedly proved themselves open to the notion of “judicial review.” Despite their insistence on legal precedent (or following the law as it had been laid down over the years) the justices have always had and made choices. In the words of Burton and Derfner, “The Supreme Court’s power to interpret the Constitution and laws inevitably involves choosing among different possibilities.”
Those choices too often failed to support the civil rights of African Americans. Many of the stories and cases considered in Justice Deferred are utterly heart wrenching. Taken together, they are enough to make us question our trust in the Supreme Court.