Whose Side Is the Supreme Court On?

More Foe Than Friend

The Supreme Court and the pursuit of racial equality.


Many people who came of age between, say, 1940 and 1970 have become accustomed to seeing the Supreme Court as a force for good when it comes to race. They have developed a faith in the justices’ claim, voiced in 1940 in a decision overturning the convictions of Black defendants in a death-penalty case, that “under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are noncomforming victims of prejudice.” Nothing nourished this sense of the court as savior more than its invalidation of the retrograde laws that helped prop up Jim Crow segregation. Some progressives have even come to view the court as an inherently enlightened branch of government, or at least more enlightened than the executive and legislative branches.

This celebratory view is mistaken. The Supreme Court has often been the most anti-progressive branch of the federal government. It has been and continues to be deeply implicated in the country’s history of racial oppression. It zealously protected the interests of the Slave Power prior to the Civil War. Afterward, the court unduly restricted the constitutional amendments and statutes of Reconstruction, which were meant to elevate Black Americans to civil and political equality with their white peers. The court legitimated the conquest of Native American nations and the subsequent frauds and betrayals imposed on them. It upheld the invidious discrimination engendered abroad when the United States created an empire in which people of color in Puerto Rico and other dominions were reduced to colonial status. It affirmed the exclusion of Asians seeking to enter the United States and the mistreatment of those who arrived before the country halted immigration from China and Japan altogether. It permitted the creation of a pigmentocracy that reached its fullest elaboration in the South, where states formally segregated people of color and excluded them from government. Recently the court eviscerated the Voting Rights Act—the high point of the civil rights activism of the 1950s and ’60s—ruling that Congress’s continued imposition of special regulations on “covered jurisdictions” (mainly Southern states with histories of stubborn racial disenfranchisement) was unacceptable in light of positive changes in the demographics of voting. That decision, in Shelby County v. Holder (2013), written by Chief Justice John Roberts for a 5-4 conservative majority, was an outrageous act of judicial delinquency. It minimized evidence of an ongoing effort to discriminate against Black voters individually and collectively. It failed to give appropriate deference to congressional policy-making. And for the foreseeable future, it eased the way for the increase in voter suppression that is an obscene threat to democratic values.

The Supreme Court has intermittently protected racial minorities. Invalidating the murder conviction of a Black man in West Virginia because the state allowed only white men to serve on juries, the court declared in Strauder v. West Virginia (1880) that the equal protection clause of the 14th Amendment stood for the proposition that “the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws”; and that people of color are exempt “from legal discriminations…lessening the security of their enjoyment of the rights which others enjoy.”

In Yick Wo v. Hopkins (1886), the court invalidated the conviction of a Chinese immigrant for violating a law designed and implemented for the purpose of harassing the Chinese owners of laundries in San Francisco. The court declared that the 14th Amendment applied not only to citizens but to all persons. Furthermore, it nullified the conviction of the defendant notwithstanding the absence of any racial distinction on the face of the ordinance. Circumstances indicated, the court insisted, that in administering the ordinance, officials were assessing Chinese launderers more strictly than white ones because of racial prejudice. That was impermissible: “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances…the denial of equal justice is still within the prohibition of the Constitution.”

Early in the 20th century, when the prerogatives of property ownership were threatened by racist zoning laws, the court sided with property owners in invalidating the legislation—the single biggest hole that the court opened in the edifice of Jim Crow. Moreover, the court did interdict outrageous conduct on the part of local and state officials who thought nothing of beating confessions out of Black suspects or otherwise proceeding against them in ways that were egregiously unfair. If the Supreme Court had not invalidated the convictions obtained against the Scottsboro Boys in Alabama in the 1930s, those wrongly accused youngsters would almost certainly have been executed.

In the years from 1954 to 1969, the court also offered essential support to the civil rights movement. Under the leadership of Chief Justice Earl Warren, it invalidated segregation factors in cases like Brown v. Board of Education (schooling) and Loving v. Virginia (marriage), upheld federal legislation in cases like Heart of Atlanta Motel v. United States (affirming the public accommodations provision of the Civil Rights Act of 1964) and South Carolina v. Katzenbach (affirming challenged portions of the Voting Rights Act of 1965), and shielded racial justice activists from state repression in cases like NAACP v. Alabama (cloaking membership in organizations with a substantial amount of protective privacy) and Edwards v. South Carolina (directing police to protect dissenters in the face of disapproving onlookers).

In their new book Justice Deferred: Race and the Supreme Court, Orville Vernon Burton and Armand Derfner offer a learned and thoughtful portrayal of the history of race relations in America “through the lens of the Supreme Court.” Burton and Derfner bear a notable relationship to their subject: Over the course of many years, both have contributed magnificently to the study and politics of racial egalitarianism in this country. The author of several books on 19th-century American history, Burton holds the inaugural Judge Matthew J. Perry Distinguished Chair of History at Clemson University and has made it his business to publicize the significance of the jurist that his chair honors. Perry was the first Black federal judge in South Carolina; the federal courthouse in Columbia is named after him. The leading civil rights attorney in the state during the Second Reconstruction, Perry litigated a slew of pioneering cases, several of which are discussed in Justice Deferred. For his part, Derfner is an attorney who has for decades represented racial justice activists. He has submitted scores of briefs to the Supreme Court and argued several cases there, including Allen v. State Board of Elections (1969) and Perkins v. Matthews (1971), both of which highlighted the potential of Section 5 of the Voting Rights Act as a powerful tool for achieving racial fairness.

In a feat of graceful compression, Burton and Derfner survey the whole of the Supreme Court’s encounters with race in Justice Deferred, from the founding of the republic to the present day. They infuse their text with a buoyant, humane, and steadfast liberalism that seems practically immune to discouragement. Having described in detail the United States’ grim history of racial inequality, Burton and Derfner maintain nonetheless that we shall overcome. In Justice Deferred, however, they show with heartbreaking clarity how the Supreme Court has typically been more a foe than a friend to the pursuit of racial equality.

At the heart of Justice Deferred is the discussion of cases like Dred Scott v. Sandford (1857), which Burton and Derfner describe as “the most reviled case in Supreme Court history, and justly so.” In that infamous dispute, a Black man in Missouri sued for the freedom of himself and his family, arguing that their status as enslaved people had been irrevocably altered when they resided with their owner in a free state (Illinois) and a free territory (Wisconsin).

Scott lost his case in the Supreme Court, where a majority of the justices held that federal courts had no jurisdiction over the dispute because the petitioner was not a citizen of the United States. His status as free or enslaved had no bearing on the matter of federal citizenship, Chief Justice Roger Taney declared, because the founders of the American republic, and the bulk of their descendants, did not deem Black people eligible for membership in the American political family. According to Taney, they could not be African Americans; they could only be Africans in America, “so far inferior that they had no rights which the white man was bound to respect.”

In describing the Scotts’ sprawling, complicated, awful saga, Burton and Derfner shine light on revealing facets of the story that have often been overlooked. They note, for example, that state law had long supported the petitioner’s argument under the doctrine of “once free, always free”: Having attained emancipation by living in free territory with the acquiescence of their “owner,” the Scotts should have been recognized as remaining free despite their return to the slave state of Missouri. The Supreme Court of Missouri acknowledged this precedent but expressly reversed itself. “Times are not now as they were when the former decisions on this subject were made,” the court opined. Reacting against antislavery activism, the state’s Supreme Court decided that it now needed to take a more aggressive posture toward “that dark and fell [antislavery] spirit” that would lead to “the overthrow of and destruction of our government.” Under such circumstances, the state court ruled, “it does not behoove the State of Missouri to show the least countenance to any measure which might gratify this spirit.”

Burton and Derfner’s commentary on Dred Scott reveals at least two valuable but disturbing lessons. One is the mysterious power of luck (or, to use a fancy word, “contingency”): Had Scott brought his suit earlier, he might well have prevailed in state court, thereby avoiding an appeal to the US Supreme Court. A second is that judicial precedent is always provisional: Just because a court decided a case in a certain way last year does not mean that the court will decide the same case in the same way today; changing conditions—always a constant—provide courts with the leeway to reach different conclusions.

In their exegesis of Plessy v. Ferguson (1896), Burton and Derfner examine what is probably the second most popularly reviled decision in the Supreme Court’s race-relations jurisprudence. In Plessy the court upheld a Louisiana statute that required people of different races to sit in different rail carriages that were separate but theoretically equal (though in actuality the facilities set aside for Black passengers were almost always inferior). The court’s holding provided cover for mandated racial separations across wide swaths of social life, from schools to restaurants to circuses to marriages. “This conscription of every white person into the army of racial discrimination,” Burton and Derfner write, “gave official segregation a totalitarian cast.” The court’s rationalization was that state-sanctioned racial barriers were “mere” racial distinctions; they did not imply that the state was subordinating Black Americans. In dissent, Justice John Marshall Harlan—a former slave owner, no less—acknowledged the obvious: that segregation was something done to Black Americans by and for white Americans. It was meant to protect white Americans from the annoyance and indignity of having to be in proximity to their Black fellow citizens. As Harlan wrote:

What can more certainly arouse race hate than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens…. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with…the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law. The thin disguise of “equal” accommodations…will not mislead anyone, nor atone for the wrong this day done.

Harlan also accurately predicted that the court’s ruling in Plessy would “prove to be quite as pernicious as the decision made by [the justices] in the Dred Scott Case.”

Another of the familiar race law delinquencies that Burton and Derfner examine is Korematsu v. United States (1944). There the court upheld the conviction of a Japanese American who defied the military orders that required all persons of Japanese ancestry in certain locales, without any hearing and regardless of citizenship status, to report to authorities for detention, removal, and internment during World War II. Writing for the court, Justice Hugo L. Black affirmed the legitimacy of the order, invoking the peculiar needs of a national emergency. Putatively condemning invidious racial discrimination, Black asserted that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect…. Courts must subject them to the most rigid scrutiny.” When the time came to impose that strict scrutiny, however, the court turned complacent, deferring wholesale to the military authorities and their civilian overseers. The court talked a big game—“Pressing public necessity may sometimes justify the existence of some restrictions; racial antagonism never can”—but its actions were small. One might have thought that, given the court’s allusion to “racial antagonism,” it might have felt obliged to discuss the congressional testimony of Gen. John L. DeWitt, the military officer most responsible for framing, issuing, and implementing the order in question. Explaining the order’s targeting of all people of Japanese ancestry, regardless of citizenship, the general remarked, “I don’t want any of them here. They are a dangerous element. There is no way to determine their loyalty…. It makes no difference whether he is an American citizen, he is still a Japanese.” The majority opinion, however, omits any discussion of anti-Japanese racism; nor does it mention any concrete evidence of espionage or sabotage undertaken by Japanese agents or sympathizers. Nowadays the aptness of Justice Frank Murphy’s dissent in the case is widely appreciated: The government’s order, he wrote, fell “into the ugly abyss of racism.” The haunting fact remains, however, that the unjustifiable detention of Japanese Americans was encouraged not only by racial reactionaries but also by racial liberals and given constitutional blessing by the Supreme Court.

Along with spotlighting some of the Supreme Court’s landmark cases, Burton and Derfner highlight little-known but highly revealing decisions, such as those interpreting the statute of 1790 that limited naturalization to “free white persons.” In 1922, the court adjudicated a case brought by a person who had been born in Japan of Japanese parents. Takao Ozawa argued that he met the whiteness test for eligibility because he was “without negro blood.” In his pioneering scholarship on racial prerequisites, Ian Haney-Lopez reveals that in the brief, written by Ozawa himself, he eschewed any association with Japanese schools or churches with respect to himself, his wife, or his children and declared:

In name, General Benedict Arnold was an American, but at heart he was a traitor. In name, I am not an American, but at heart I am a true American…. I have steadily prepared to return the kindness which our Uncle Sam has extended me…so it is my honest hope to do something good to the United States before I bid farewell to this world.

In an opinion penned by (the English-born) Justice George Sutherland, the Supreme Court acknowledged that Ozawa “was well qualified by character and education for citizenship.” Yet the court affirmed a lower court’s denial of eligibility. Reasoning that “white” as used in the pertinent statute meant “what is popularly known as the ‘Caucasian’ race,” the court determined that Ozawa failed to qualify because he was “clearly of a race which is not Caucasian.”

A year later, the court adjudicated a case involving what it described as “a high-caste Hindu, of full Indian blood, born [in India].” The issue was whether Bhagat Singh Thind, who had served in the US Army during World War I, was “white” according to the meaning of the naturalization statute. Arguing in the affirmative, Thind asserted that he was a real Caucasian insofar as he could claim “a line of descent” from the Caucasus Mountains. A federal judge agreed with him. But the Supreme Court disagreed in another opinion by Justice Sutherland. Waving aside geography and ethnology, Sutherland concluded (in an opinion joined by Louis Brandeis and Oliver Wendell Holmes Jr.):

It is a matter of familiar observation and knowledge that the physical group characteristics of the Hindus render them readily distinguishable from the various groups of persons in this country commonly recognized as white. The children of English, French, German, Italian, Scandinavian, and other European parentage quickly merge into the mass of our population and lose the distinctive hallmarks of their European origin. On the other hand, it cannot be doubted that the children born in this country of Hindu parents would retain indefinitely the clear evidence of their ancestry.

This was no invidious racial discrimination, the court insisted: “It is very far from our thought to suggest the slightest question of racial superiority or inferiority.” Rather, as with segregation, the naturalization law “merely” recognized an “instinctively” and popularly felt “racial difference.”

Burton and Derfner describe other cases that have figured only marginally in the historiography of the Supreme Court but that warrant the elevated attention they receive in Justice Deferred. One is United States v. Shipp (1906), the only time in its history that the Supreme Court has tried, convicted, and sentenced a party for contempt. A Black man in Chattanooga, Ed Johnson, had been sentenced to death for raping a white woman. His two remarkably brave African American lawyers, Noah Parden and Styles Hutchins, succeeded in obtaining a stay of execution from Justice Harlan while the Supreme Court reviewed their claim that their client had been denied due process. A mob, with the connivance of Sheriff Joseph F. Shipp, took Johnson from jail and lynched him, leaving a note: “To Justice Harlan—here’s your nigger now.” The Supreme Court found Shipp and others guilty of contempt of court and sentenced them to brief stays in jail.

Another obscure case that Burton and Derfner rightly draw attention to arose from a dispute over a burial. In December 1950, Sgt. John Raymond Rice, a veteran of World War II, was killed in action in the Korean War. His widow arranged for him to be buried in the Memorial Park Cemetery in Sioux City, Iowa. A Catholic priest officiated at a graveside service. But there was no burial, because the cemetery was restricted to “members of the Caucasian race” and Rice was a Native American—11/16ths Winnebago—and had lived with his wife on a nearby reservation. The managers of the cemetery said that they had not realized that Rice was Native until so many Native Americans showed up for his funeral. The managers apologized for the misunderstanding but refused to permit the burial of the fallen soldier. The widow sued, arguing that judicial recognition of the racial restriction contained in the contract with the cemetery would violate the US Constitution. The Iowa court took the position that the Constitution did not apply because no state action was involved. State action might have been implicated, it argued, if the body had been buried and the cemetery sought a court order requiring it to be disinterred. Here, though, no agency of the state was involved; a private party “simply” refused to bury the soldier. When the widow appealed to the US Supreme Court, it ducked the issue, citing the subsequent passage of a state law banning racial discrimination by cemeteries. Outraged by this mistreatment of the family, President Harry Truman arranged for Sgt. Rice’s body to be flown to Arlington National Cemetery, where it was buried with full military honors.

Fourteen years later, in Alabama, a young Black activist named Mary Hamilton who was associated with the Congress of Racial Equality found herself on trial for a minor infraction stemming from a protest against segregation. The prosecutor addressed her as “Mary,” in keeping with Jim Crow etiquette and its refusal to offer honorifics—“Mr.” or “Mrs.” or “Miss”—to Black Americans or to address them by their surnames. She objected: “My name is Miss Mary Hamilton. Please address me correctly.” When the prosecutor continued his campaign of rhetorical belittlement and Hamilton continued to resist, the judge jumped into the fray, ordering her to respond. “I will not answer,” she replied, “unless I am addressed correctly.” The judge held her in contempt of court and sentenced her to a $50 fine and five days in jail. The US Supreme Court summarily reversed the ruling, albeit too late to prevent Hamilton from going to jail.

Authoritative and highly readable, Justice Deferred explores its large and difficult topic with a passionate commitment to social justice that is disciplined by lawyer-like care. Because Burton and Derfner offer so much explained so well, I hesitate to put forward reservations about their impressive work. Especially in a project this large, authors are constantly faced with difficult trade-offs. Neither time, space, nor energy is limitless; more expended on one topic means less expended on another. That said, I think it worthwhile to flag certain features of Justice Deferred that students of its subject might want to take into account.

Burton and Derfner state, “The Supreme Court decided dozens of slavery cases, usually involving an individual’s claim for freedom. These cases attracted little attention, perhaps because almost all of them supported the slave owner and denied freedom [to the slave].” It would be useful if more of these cases were named, explicated, and made part of the general understanding of the court’s historical record. Scott v. Negro London (1806), for example, should not be permitted to languish in obscurity any longer. In it, London sued for his freedom under a law that required slave owners to follow certain procedures before importing slaves into the District of Columbia. A jury of 12 white men concluded that London should be freed because of his owner’s failure to abide by the law. In an opinion written by Chief Justice John Marshall, the Supreme Court reversed the lower court’s verdict, condemning London to continued enslavement despite the availability of ample grounds on which to affirm the judgment in favor of freedom even in a jurisprudence protective of slavery. In Supreme Injustice: Slavery in the Nation’s Highest Court, Paul Finkelman describes Negro London and similar suits, points out that Marshall participated in the adjudication of seven of them between 1806 and 1830, and notes that he ruled against the enslaved in every case. Finkelman also reveals “Marshall’s massive personal investment in slaves”; over the course of his life, he bought and owned at least 150 of them. In Supreme Court historiography, Chief Justice John Marshall is “the great one”—the undisputed model for judicial statesmanship—while Chief Justice Roger Taney is the great disappointment, the conspicuous villain. But little separates the two men morally. Had Marshall been alive in 1857, he might well have been part of the faction that bequeathed the Dred Scott ruling.

Burton and Derfner declare that Dred Scott “is universally condemned for its extreme pro-slavery dogma, for twisting the Constitution to incorporate that dogma, and for thereby aggravating sectional divisions and hastening the Civil War.” That pronouncement ought to be reconsidered. Mark Graber’s Dred Scott and the Problem of Constitutional Evil offers essential instruction. The deepest problem with Dred Scott was not that the Supreme Court departed from constitutional norms; it was that the court reached a decision that was one of several plausible conclusions on offer from constitutional norms that buttressed an abominable system. Burton and Derfner join in exceptionalizing Dred Scott, a sentimental approach that flinches from a full reckoning with the court’s complicity in the slaveholding republic. It is easier to condemn Taney as a rogue justice than to contemplate the possibility that he was faithfully executing a justifiable interpretation of the Constitution. Furthermore, there are some scholars (I am one of them) who do not condemn Dred Scott’s aggravation of sectional divisions and hastening of civil war. To the contrary, they retrospectively cheer those aggravations in the knowledge that, in all probability, only a bloody war could have eliminated slavery given its role in the economy, politics, morality, and laws of pre-1860 America.

Although Burton and Derfner say more about the mistreatment of Native Americans than do many other commentators on race relations law, they still say too little about this neglected subject. They devote a mere sentence to Johnson v. M’Intosh (1823), in which Chief Justice Marshall asserted that while Indians have a right to occupy land, only the United States government can exercise sovereignty over it. The fountainhead of the law of property in the United States, which assumed the rightness of white European hegemony over Native Americans, Johnson deserves a much fuller treatment than that offered by Burton and Derfner. Later, they discuss in a mere two paragraphs the Supreme Court’s handling of treaties with Native American nations—a story suffused with coercion, exploitation, chicanery, avariciousness, deception, and cruelty. In 1901, a Native chief, Lone Wolf, sued the United States, alleging frauds and violations of its treaty commitments. The Supreme Court, without dissent, ruled against him, saying that Congress had plenary authority over Native tribes, including the power to abrogate treaties unilaterally. Burton and Derfner mention that Lone Wolf v. Hitchcock (1903) is sometimes referred to as “the Indians’ Dred Scott.” But, alas, they give to Lone Wolf only a small fraction of the attention that they give to Dred Scott. Quoting just a bit from Justice Edward White’s opinion in Lone Wolf would help clarify the extent to which Native Americans and their polities have been marginalized, stigmatized, and abused by a maddeningly hypocritical United States of America. “It is to be presumed,” Justice White wrote, that “the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Be that as it may, the propriety or justice of their [i.e., congressional] action towards the Indians with respect to their lands is a question [of policy beyond review by the judiciary].”

Burton and Derfner’s discussion of recent Supreme Court jurisprudence offers high levels of insight, and they provide reliable guidance on controversies involving affirmative action, capital punishment, regulation of police, and other vexing subjects. But they do overlook certain knotty complications that ought to be acknowledged. Consider, for example, their discussion of race and mass imprisonment, particularly the increase in incarceration that stemmed from the so-called War on Drugs. Their general argument is that the court’s constitutional theory of racial discrimination, especially its requirement of a showing of discriminatory “intent” as a prerequisite for relief, permits the persistence of racially unjust policies. They offer as an example the difference in punishment meted out to those convicted of offenses involving crack cocaine and those convicted of offenses involving powder cocaine. The punishments for the former are far more severe, and those subjected to them tend to be racial minorities to a far greater extent. Like many other commentators, Burton and Derfner conclude unequivocally that the disparity is an obvious form of racial discrimination. They neglect to consider, however, whether a difference in punishment might be justifiable since crack is cheaper and thus more accessible and arguably more dangerous. Nor do they consider that a substantial number of Black politicians were among those who, like Representative Charlie Rangel, demanded that Congress “crack down on crack” because people in their districts worried about how their neighborhoods were being ravaged by the crack trade. Maybe Rangel and other like-minded Drug War hawks erred. But their thinking was hardly “racist.” As Yale Law School professor James Forman has shown in his book Locking Up Our Own, the racial politics of crime policy are more complex than many people realize.

Although Justice Deferred reveals a Supreme Court marked by an ongoing tolerance for racial wrongdoing, Burton and Derfner still evince a redemptionist spirit. They excoriate recent rulings, noting that, at least in the context of race, the Roberts Court typically reads civil rights protections “for as little as they can mean.” Yet despite the suspect racial politics of the court’s dominant conservative faction, Burton and Derfner insist that no institution “is better suited than the Supreme Court to define the golden ideals of America.” This is why their book “is so critical of instances when the Supreme Court seems to have fallen short,” they write, “and why it celebrates the transcendent moments when the Supreme Court carries the nation forward.” Latent in that remark is a faith that the Supreme Court will exert itself to embrace the aspiration that is carved into the front entrance of its building: “Equal Justice Under Law.” Burton and Derfner, however, provide ample evidence for skepticism.

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