April 7, 2003 – The Supreme Court Decides Virginia v. Black

In the 2003 case Virginia v. Black (538 U.S. 343), three defendants were convicted in two separate cases of violating a Virginia statute against cross burning. In an opinion authored by Justice Sandra Day O’Connor, the Court struck down Va. Code Ann. §18.2—423 (1996) to the extent that it considered cross burning as prima facie evidence of intent to intimidate:

We conclude that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form.”

In the opinion, Justice O’Connor recounted the history of the Ku Klux Klan and the display of a burning cross “used to communicate both threats of violence and messages of shared ideology.” She cited the Klan constitution which claims that the “fiery cross” is the “emblem of that sincere, unselfish devotedness of all klansmen to the sacred purpose and principles we have espoused.” She also adduced instances in which the burning cross was used by the Klan as “a sign of celebration and ceremony” such as at a marriage of two Klan members. Nevertheless, she acknowledged:

…while a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful.”

Justice Sandra Day O'Connor

Justice Sandra Day O’Connor

Nevertheless, she was unwilling to compromise the First Amendment, applicable to the States through the Fourteenth Amendment, providing that “Congress shall make no law … abridging the freedom of speech.” Citing previous rulings of the Court, she observed: “The hallmark of the protection of free speech is to allow “free trade in ideas”–even ideas that the overwhelming majority of people might find distasteful or discomforting.”

She admitted that “Virginia’s statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate.” But the Court agreed with the Supreme Court of Virginia in its finding that the Virginia statute was “overbroad” in inferring intent from the burning of a cross by itself:

As the history of cross burning indicates, a burning cross is not always intended to intimidate. Rather, sometimes the cross burning is a statement of ideology, a symbol of group solidarity. It is a ritual used at Klan gatherings, and it is used to represent the Klan itself. Thus, “[b]urning a cross at a political rally would almost certainly be protected expression.” R. A. V. v. St. Paul, 505 U.S., at 402, n. 4 (White, J., concurring in judgment) (citing Brandenburg v. Ohio, 395 U.S., at 445). Cf. National Socialist Party of America v. Skokie, 432 U.S. 43 (1977) (per curiam). Indeed, occasionally a person who burns a cross does not intend to express either a statement of ideology or intimidation. Cross burnings have appeared in movies such as Mississippi Burning, and in plays such as the stage adaptation of Sir Walter Scott’s The Lady of the Lake.”

Justice O’Connor did not address what would constitute sufficient proof of “intent to intimidate.” It seems she was willing to accept any explanation offered by Klan members, notoriously not given to self-incrimination.

In his dissent, Justice Clarence Thomas basically writes, “Oh, come on!” He argues:

In our culture, cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence.”

Justice Clarence Thomas

Justice Clarence Thomas

In addition he contended that the Virginia statute prohibited only conduct, not expression. However, he clarified:

Even assuming that the statute implicates the First Amendment, in my view, the fact that the statute permits a jury to draw an inference of intent to intimidate from the cross burning itself presents no constitutional problems. Therein lies my primary disagreement with the plurality.”

He went on to note that in other instances of potential harm, the Court had not imposed a scienter requirement. Indeed, he averred, “Considering the horrific effect cross burning has on its victims, it is also reasonable to presume intent to intimidate from the act itself.” He concluded:

…the plurality strikes down the statute because one day an individual might wish to burn a cross, but might do so without an intent to intimidate anyone. That cross burning subjects its targets, and, sometimes, an unintended audience, see 262 Va., at 782; see also J.A. 93—97, to extreme emotional distress, and is virtually never viewed merely as “unwanted communication,” but rather, as a physical threat, is of no concern to the plurality. Henceforth, under the plurality’s view, physical safety will be valued less than the right to be free from unwanted communications.”

In 2002, the Virginia legislature responded by enacting a new statute numbered § 18.2-423.01. The original Section 18.2-423, held unconstitutional, has not been repealed. The new statute, however, does not contain a prima facie evidence provision and applies to “objects,” not mentioning crosses in particular. The statute makes burning an object on the private property of another with the intent to intimidate a crime in itself; whereas, burning an object on a highway or other public place with the intent to intimidate must be “in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury.”

Ku Klux Klansmen and women at a cross "lighting" (as opposed to "burning") on November 12th, 2005.

Ku Klux Klansmen and women at a cross “lighting” (as opposed to “burning”) on November 12th, 2005.

March 18, 1963 – The Supreme Court Decided Gideon V. Wainwright; What Were Its Effects?

On this day in history, the Supreme Court ruled that the states are required to provide legal counsel to criminal defendants who are unable to pay for their own defense. You can read the full decision here and you can read our explication of the case here.

Source: Monk, Linda R. The Bill Of Rights: A User's Guide. Close-Up Publishing: 1991. p. 152.

Source: Monk, Linda R. The Bill Of Rights: A User’s Guide. Close-Up Publishing: 1991. p. 152.

Notably, Justice Hugo Black stated in his opinion:

The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.” 372 U.S. 335 at 344

Unfortunately, the right to “counsel” doesn’t always guarantee competent counsel. A 2009 report published by The National Right to Counsel Committee, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, identified grave problems in the provision of legal representation for the poor, especially because of chronic underfunding. As the report notes:

When the defense does not measure up to the prosecution, there is a heightened risk of the adversary system of justice making egregious mistakes.”

Analyzing Gideon more specifically, in June, 2013, The Yale Law Journal published a special issue on Gideon, which you can access free online here.

For example, John H. Blume, Professor of Law at Cornell Law School and Sheri Lynn Johnson, James and Mark Flanagan Professor of Law at Cornell Law School, argue in Gideon Exceptionalism, 122 YALE L.J. 2126 (2013):

As we set forth in this Essay, we think Gideon is both a “shining city on a hill” in the world of criminal procedure and something of a sham. We first discuss the extraordinary features of the decision itself, then lay out how it has survived largely intact, unlike virtually all other Warren Court criminal procedure decisions. Then we turn to the bleaker side of the Gideon story, first illuminating how the stingy law of ineffective assistance of counsel renders Gideon’s “shining city” illusory for many defendants, and then showing how the routine denial of investigative and expert assistance to indigent defendants further undercuts Gideon’s promise.”

Paul Butler, Professor at Georgetown University Law Center, exposes a broader problem, in Poor People Lose: Gideon and the Critique of Rights, 122 YALE L.J. 2176 (2013). He contends:

A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement of Gideon would not significantly improve the loser status of low-income people in American criminal justice.”


There is also an excellent resource on the website of The Brennan Center, providing a list of links to articles examining the effects of Gideon fifty years after the decision, prefacing it with the observation:

The average amount of time spent by a public defender at arraignment is often less than six minutes per case. And that is when counsel is present and allowed to give information.”

Particularly recommended is the editorial by Georgetown Law Professor Paul Butler in The New York Times, who recounts some of the more egregious instances of “Gideon’s Muted Trumpet.”

Additionally, the American Bar Association has a list of resources related to the fiftieth anniversary of Gideon, which you can access here.

March 1, 1842 – The U.S. Supreme Court Decided Prigg v. Pennsylvania

Prigg v. Pennsylvania, 41 U.S. 539 (1842) is considered to be one of the most important Supreme Court decisions on slavery.  In this case, a badly split court (the decision included seven separate opinions, a rare practice in antebellum America), held that a Pennsylvania state law prohibiting blacks from being taken out of Pennsylvania into slavery was unconstitutional.

The Fugitive Slave Clause of the U.S. Constitution (Article 4, Section 2, Clause 3 superseded by the Thirteenth Amendment) provided: 

No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”

That clause clearly prohibited the Northern states from “discharging” any former slaves from their obligations of “service or labor,” but did not provide a mechanism for slave owners to recover their slaves.  The clause said only that the slaves shall be “delivered up” [by whom is unstated] upon assertion of a “claim.”   

Congress passed the 1793 Fugitive Slave Act to provide specific procedures and remedies for slave owners. However, Sections 3 and 4, which dealt with the rendition of fugitive slaves, neither vested responsibility for the enforcement of the law in any person or official nor set a standard by which the seized person’s status as a fugitive was to be proved.

In 1826 Pennsylvania passed an extensive anti-kidnapping law, making it difficult under Pennsylvania law to kidnap blacks or mulattos to take them into slavery or servitude.

In 1837, Edward Prigg entered the state of Pennsylvania as the agent of Margaret Ashmore, a slave owner from Maryland, in order to find Ashmore’s alleged escaped slave Margaret Morgan. Pennsylvania law required Prigg to show documentary evidence proving Ashmore’s ownership for the legal removal of Morgan and her two children.  The state magistrate to whom Prigg submitted his evidence denied his “claim.” Prigg seized the family nonetheless, and removed them to Maryland.  Indicted and convicted under Pennsylvania’s anti-kidnapping statute, Prigg appealed on the grounds that Pennsylvania’s law violated both Article IV of the Constitution and the federal Fugitive Slave Law of 1793.

The case raised numerous issues, among them the complicated definition of the status of Margaret Morgan, the supposed slave in question. Her parents had been the slaves of a Marylander named Ashmore. Without formally emancipating them, sometime before 1812 he allowed them to live as free blacks.   Margaret was born subsequent to this informal declaration.  She grew up and married a free black, and they moved across the state line to Pennsylvania, all with the acquiescence of the senior Ashmore. Regardless of their status, their several children were free under Pennsylvania law. 

When Ashmore died, his estate passed to his niece Margaret. Her husband, Nathan Bemis, hired Prigg and two others to go with him to retrieve and enslave Margaret Morgan. Historian Paul Finkelman opines: “The fact that Bemis and Prigg were immediately able to locate Morgan suggests that she did not see herself as a fugitive slave and had never tried to hide her whereabouts from Ashmore or his niece. That the Morgans lived along the Maryland border also suggests they believed Margaret was a free person.”  (Paul Finkelman, “Sorting out Prigg v. Pennsylvania,” 24 Rutgers L.J. 605, 611 1992-1993) 

Nevertheless, and after being denied authorization by a Pennsylvania Justice of the Peace, Prigg and Bemis took Margaret and the children (but not the husband) to Maryland where they were sold to a trader for shipment to the South.  Clearly Bemis was not interested in getting back a slave but in punishing a presumptuous black. However, the Fugitive Slave Act placed no limitations on what could or could not be done with recovered slaves. In any event, the question of whether Margaret and her children should have even been considered as slaves was a fuzzy one.

(Justice McLean, in dissent, addressed these ambiguities extensively).

In addition, the case highlighted the increasing animosities between slave and free states, which did not always cooperate with one another in matters of extradition.  (The Supreme Court did not decide whether states could be compelled to cooperate with extradition requests until Kentucky v. Dennison, 65 U.S. (24 How.) 66, 1861.)

Most importantly, the case raised the issue of the interplay of state and federal power.  

Writing for the Court, Justice Joseph Story reversed Prigg’s conviction, ruling that the Pennsylvania act was unconstitutional, at least as applied to fugitive former slaves.

Justice Joseph Story, 1844

Justice Joseph Story, 1844

He held that Congress had exclusive jurisdiction in this area, citing The Federalist to bolster his argument that the rights and duties imposed by the Constitution implies a remedy, “and where else would the remedy be deposited (Madison asked in The Federalist), than where it is deposited by the Constitution?”  (Prigg at 617).  But while all of the justices agreed that the states could not pass laws creating additional requirements to the federal law or impeding the return of fugitive slaves, they disagreed on how to define these terms; what obligation state officials had to aid in the rendition process; and if they did have such an obligation, what it should be.

Justice Story noted that the section of the Act of 1793 conferring jurisdiction on state magistrates was very troublesome, expressing doubt that Congress had power to compel state judges to act.  He stated that state officials had no obligation to enforce federal penal law in this area because the Constitution does not provide for “any state functionaries, or any state action, to carry its provisions into effect.” (at 615) Presumably Story was trying to lay the basis for a possible legislative attack upon slavery in the future.  His son, at any rate, in his biography of his father (Life and Letters of Joseph Story by William Wetmore Story) argued that his father’s opinion constituted a not-too-subtle sabotage of the practical enforceability of the Fugitive Acts.

Others, however, argue that Justice Story actually aided in nationalizing the institution.  As Finkleman observes:

Any notion of freedom – or even of the localization of slavery – in the opinion has to be balanced against Story’s assertions that the master’s right to his slave was “positive,” “unqualified,” and “absolutely secured.”  As Story’s greatest biographer noted, “[H]ere, in language all too plain for some, was an argument for the return of fugitive slaves anchored solidly in the Constitution and backed by the greatest living authority on American constitutional law.” (citations omitted; Finkleman, op. cit. at 659)

The question of interpretation is relevant because Justice Story was known as a passionate advocate of abolition.  In 1819, he even publicly called for the eradication of slavery from the territories.  He also wrote the famous opinion for United States v. The Amistad (40 U.S. 518, 1841)  ruling that the Africans on board the Amistad were free individuals; that having been kidnapped and transported illegally, they had never been slaves.

On the other hand, he recognized that appeasing the slave-holding states had been necessary to make an American union possible, and in Prigg even characterized the Fugitive Slave Act as an indispensable element in that regard.  He wrote that the Constitution gave slave holders:

…complete right and title of ownership in their slaves as property in every State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slaveholding States, and indeed was so vital to the preservation of their domestic interests and institutions that it cannot be doubted that it constituted a fundamental article without the adoption of which the Union could not have been formed.” (Prigg at 540)

In spite of his personal loathing of the Fugitive Slave Act, he perceived his primary obligation to be to the Constitution.  Of course, Lincoln’s position was quite similar, and like Story, Lincoln decided that although the rule of law should obtain, there was more than one way to skin the cat.

But both Story and Lincoln faced a formidable obstacle in the Chief Justice of the Supreme Court, Roger Taney, whose concurrence in Prigg  averred:

I dissent, therefore, … from that part of the opinion of the court which denies the obligation and the right of the state authorities to protect the master, when he is endeavoring to seize a fugitive from his service, in pursuance of the right given to him by the constitution of the United States; provided the state law is not in conflict with the remedy provided by congress.”

The Prigg decision angered opponents of slavery.  As the famous abolitionist Wendell Phillips lamented the next year, when another fugitive slave challenge arose:

There stands the bloody [fugitive slave] clause – you cannot fret the seal off the bond.  The fault is in allowing such a Constitution to live an hour….”  (W. Phillips, Speech at Faneuil Hall, Boston, Oct. 30, 1842, quoted in I. Bartlett, Wendell Phillips: Brahmin Radical, 1961)

Following Prigg, however, some state judges refused to participate in federal fugitive slave proceedings, and there were not enough federal magistrates to process applications. Southern slaveholders then agitated for new legislation, which they received as part of the famous “Compromise of 1850,” a package of legislative measures enacted by Congress to reconcile the differences existing between the North and South concerning the issue of slavery in newly formed U.S. territories. The Fugitive Slave Act of 1850 authorized the appointment of a federal commissioner in every county in the United States who could issue certificates of removal for fugitive slaves. It also added additional punishments for lack of citizen cooperation, and denied a slave the benefit of a trial. The statements of the alleged slave’s owner (who did not even have to appear in court) would constitute sufficient evidence for the action.

It would take a war to imbue the Constitution with moral justice.

February 23, 2011 – The U.S. DOJ Announced It Would No Longer Defend DOMA

On this day in history, the Department of Justice released a statement by Eric H. Holder, Jr., the 82nd Attorney General of the United States, declaring:

[President Obama] has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.   Given that conclusion, the President has instructed the Department not to defend the statute in such cases.”

Eric Himpton Holder, Jr.

Eric Himpton Holder, Jr.

Much controversy ensued over the putative duty of the executive branch to defend laws enacted by the legislative branch. In light of this uproar, Neal Devins (Goodrich Professor of Law and Professor of Government, College of William and Mary) and Saikrishna Prakash (David Lurton Massee, Jr., Professor of Law & Sullivan & Cromwell Professor of Law, University of Virginia), made a detailed analysis of whether there is in fact (i.e., in law), any basis for this charge. You can read their arguments, posted from the Columbia Law Review, here, which in essence find:

…there simply is no duty to defend federal statutes the President believes are unconstitutional. Contrary to his defenders, there likewise is no duty to enforce such laws. Given President Obama’s belief that the DOMA is unconstitutional, he should neither enforce nor defend it.”

On June 26, 2013, The Supreme Court, in United States v. Windsor, struck down part of DOMA, holding that it “violates basic due process and equal protection principles applicable to the Federal Government.”

Justice Anthony M. Kennedy wrote the majority opinion and was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Chief Justice John G. Roberts Jr. wrote a dissenting opinion, as did Justice Antonin Scalia, whose opinion was joined by Justice Clarence Thomas and Justice Roberts in part. Justice Samuel A. Alito Jr. filed another dissenting opinion, which Justice Thomas joined in part.

Screen Shot 2014-02-22 at 11.14.07 AM

February 9, 1953 – Justice Robert H. Jackson Clarifies the Role of the Supreme Court

Brown v. Allen (344 U.S. 443) was part of a group of cases that was reargued before the Supreme Court since, as Justice Stanley Reed explained in writing his decision for the Court:

As the records raised serious federal constitutional questions upon which the carrying out of death sentences depended and procedural issues of importance in the relations between states and the federal government upon which there was disagreement in this Court, we decided to set the cases for reargument.”

Justice Stanley Forman Reed

Justice Stanley Forman Reed

This decision is notable because, beginning with this case, the Supreme Court expanded access to federal habeas corpus review for state prisoners. It is also in this decision that Justice Jackson offered, in his concurrence, his famous view about the nature of the Supreme Court, opining:

We are not final because we are infallible, but we are infallible only because we are final.”

Neither Justice Reed nor Justice Jackson, by the way, ever graduated law school.

Justice Robert H. Jackson

Justice Robert H. Jackson

January 31, 1801 – John Marshall is Appointed Chief Justice of the U.S. Supreme Court

On this date in history, John James Marshall was appointed to be the fourth Chief Justice of the United States by President John Adams. Marshall dominated the Court for over three decades, serving as Chief Justice during all or part of the administrations of six presidents: John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams and Andrew Jackson. He helped to establish the Supreme Court as the final authority on the meaning of the Constitution in cases and controversies that must be decided by the federal courts.

John Marshall

John Marshall

President John Adams is said to have told Marshall’s son in 1826, “My gift of John Marshall to the people of the United States was the proudest act of my life. There is no act of my life on which I reflect with more pleasure.”

January 7, 1972 – Two Supreme Court Justices for the Price of One

On this day in history, two Justices joined the Supreme Court on the same day. When this rare event occurs, seniority is determined by age.

Lewis F. Powell, Jr. was 64, and William H. Rehnquist was 47. Therefore Chief Justice Warren Burger administered the Judicial Oath to Powell before Rehnquist.

Lewis Powell was appointed to the Court by President Richard Nixon in part because of his conservative views on crime and law enforcement. But Powell was also an advocate of integration and civil rights. Thus Powell came to occupy a philosophical position in the middle of the Court.


Rehnquist was an active Republican who had previously worked for Nixon in the Justice Department. As PBS reports,

When he joined the Court, Rehnquist was by far its most conservative justice, and he frequently dissented from its decisions. He was so often alone in his opinions during his 14 years as associate justice that he set a Court record of 54 unaccompanied dissents…”


In 1985 President Ronald Reagan nominated Rehnquist as Chief Justice and nominated Antonin Scalia to fill Rehnquist’s seat.

December 18, 1944 – The First Time the Word “Racism” was used in a Supreme Court Opinion

In the 1940s, the Brotherhood of Locomotive Firemen and Enginemen was a statutory “labor organization” (i.e., a union) which enacted a constitution limiting membership to white men to the exclusion of Negroes. The Brotherhood’s members constituted a majority of firemen employed by the Louisville & Nashville Railroad, but a substantial minority of the firemen was black. However, under provisions of the Railway Labor Act providing that “The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter,” the white majority voted the Brotherhood as the exclusive bargaining representative for railway firemen.

Bester Steele, an African American fireman, was furloughed from his job and then rehired to perform more arduous work at lower pay.   His former job was given to a white Brotherhood member who was junior to Steele in seniority. 

The president of the Association of Colored Railway Trainmen and Locomotive Firemen’s Local No. 5 came to Washington and sought out Charles Hamilton Houston to determine “what [the union] should do to protect their rights.”  [Hamilton attended Harvard Law School and was the first black editor of the Harvard Law Review.  He later became Dean of Howard University Law School and was a mentor to Thurgood Marshall.   As the chief attorney for the National Association of Colored People (NAACP), he played a role in many civil rights cases, and was primarily responsible for developing the legal strategy that led to the Brown v. Board of Education decision, although Houston died in 1950]. 

After researching the relevant labor laws and the plight of the African American railroad workers, Houston reputedly said: “You don’t have any laws to protect you, but I’m gong to make some laws that will protect you.  I’m going to make them.” 

Charles Houston, circa 1940

Charles Houston, circa 1940

Houston took up Steele’s fight and pursued it through the Alabama state court system. The plaintiffs alleged that the Brotherhood had used its status as exclusive bargaining representative to grant favorable opportunities and jobs to it (white) members to the disadvantage of the non-member black firemen. The Supreme Court of Alabama had sustained a demurrer to the complaint, ruling that it did not state a cause of action.

On Appeal to the United States Supreme Court, Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192 (1944), Chief Justice Harlan Fiske Stone stated the issues to be adjudicated were (1) whether the Railway Labor Act imposes a duty on a labor organization, acting as the exclusive bargaining representative, to represent all employee members of a craft regardless of race or union membership; and (2) if so, whether the courts have jurisdiction to protect minorities from violations of that obligation.

Chief Justice Harlan Fiske Stone

Chief Justice Harlan Fiske Stone

The Court held that the language of the Railway Labor Act “expresses the aim of Congress to impose on the bargaining representative of a craft or class of employees the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them.”  Justice Stone allowed further that “the discriminations based on race alone are obviously irrelevant and invidious,” but did not clearly base his decision on that fact alone.

In addition, since at the time there were no available administrative remedies, Justice Stone concluded that judicial remedies were in fact appropriate. His opinion was somewhat ambiguous as to whether it rested on the union’s failure to represent all members of the craft (including non-members of the union) or whether it condemned all racial discrimination by the union in discharging its statutory authority.

Associate Justice Frank Murphy concurred, but came in slugging.  He said that deciding the case on the legal technicalities was all well and good, but that the elephant in the courtroom should not be ignored.  His concurrence, which contains the first use in a Supreme Court opinion of the word racism, is worth quoting in full:

The economic discrimination against Negroes practiced by the Brotherhood and the railroad under color of Congressional authority raises a grave constitutional issue that should be squarely faced.

The utter disregard for the dignity and the well-being of colored citizens shown by this record is so pronounced as to demand the invocation of constitutional condemnation. To decide the case and to analyze the statute solely upon the basis of legal niceties, while remaining mute and placid as to the obvious and oppressive deprivation of constitutional guarantees, is to make the judicial function something less than it should be.

The constitutional problem inherent in this instance is clear. Congress, through the Railway Labor Act, has conferred upon the union selected by a majority of a craft or class of railway workers the power to represent the entire craft or class in all collective bargaining matters. While such a union is essentially a private organization, its power to represent and bind all members of a class or craft is derived solely from Congress. The Act contains no language which directs the manner in which the bargaining representative shall perform its duties. But it cannot be assumed that Congress meant to authorize the representative to act so as to ignore rights guaranteed by the Constitution. Otherwise the Act would bear the stigma of unconstitutionality under the Fifth Amendment in this respect. For that reason I am willing to read the statute as not permitting or allowing any action by the bargaining representative in the exercise of its delegated powers which would in effect violate the constitutional rights of individuals.

If the Court’s construction of the statute rests upon this basis, I agree. But I am not sure that such is the basis. Suffice it to say, however, that this constitutional issue cannot be lightly dismissed. The cloak of racism surrounding the actions of the Brotherhood in refusing membership to Negroes and in entering into and enforcing agreements discriminating against them, all under the guise of Congressional authority, still remains. No statutory interpretation can erase this ugly example of economic cruelty against colored citizens of the United States. Nothing can destroy the fact that the accident of birth has been used as the basis to abuse individual rights by an organization purporting to act in conformity with its Congressional mandate. Any attempt to interpret the Act must take that fact into account and must realize that the constitutionality of the statute in this respect depends upon the answer given.

The Constitution voices its disapproval whenever economic discrimination is applied under authority of law against any race, creed or color. A sound democracy cannot allow such discrimination to go unchallenged. Racism is far too virulent today to permit the slightest refusal, in the light of a Constitution that abhors it, to expose and condemn it wherever it appears in the course of a statutory interpretation.”

Associate Justice Frank Murphy

Associate Justice Frank Murphy

December 12, 1745 – Birth of John Jay, First Chief Justice of the Supreme Court

John Jay played a key role in the early years of the fledgling United States.

In 1787 and 1788 he collaborated with Alexander Hamilton and James Madison on the Federalist Papers, authoring essays numbers two, three, four, five and, following an illness, sixty-four.  He also played an important part in shepherding the Constitution through the New York State Ratification Convention in the face of vigorous opposition.

In 1789, President George Washington appointed John Jay as the first Chief Justice of the new Supreme Court.  Jay served from October 19, 1789 to June 29, 1795.

Chief Justice John Jay by Gilbert Stuart

Chief Justice John Jay by Gilbert Stuart

Jay was a committed federalist, notably setting forth his position in his opinion for Chisholm v. Georgia (2 U.S. 419, 1793). In this case, a plaintiff attempted to sue the state of Georgia in the U.S. Supreme Court over payments due to him for goods that he had supplied Georgia during the American Revolutionary War. The defendant, Georgia, refused to appear, claiming that, as a “sovereign” state, it could not be sued without granting its consent to the suit.

In a 4 to 1 decision, the Court ruled in favor of the plaintiff. The Justices delivered their opinions seriatim as was the custom at that time. The majority found that Article 3, Section 2, of the Constitution abrogated the States’ sovereign immunity and granted federal courts the affirmative power to hear disputes between private citizens and States.

Justice Jay held:

The exception contended for would contradict and do violence to the great and leading principles of a free and equal national government, one of the great objects of which is to ensure justice to all — to the few against the many as well as to the many against the few. It would be strange indeed that the joint and equal sovereigns of this country should, in the very Constitution by which they professed to establish justice, so far deviate from the plain path of equality and impartiality as to give to the collective citizens of one State a right of suing individual citizens of another State, and yet deny to those citizens a right of suing them.”

In 1795, the states ratified the Eleventh Amendment to overrule this case. The Eleventh Amendment clarified Article 3, Section 2, removing federal jurisdiction in cases where citizens of one state or of foreign countries attempt to sue another state. However, a later case established that citizens of one state or of foreign countries can still use the Federal courts if Congress, pursuant to a valid exercise of Fourteenth Amendment remedial powers, abrogates the states’ immunity from suit. [See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).]


Shelby County v. Holder – Was the Case “Justly” Decided?

As you know by now, in the opinion issued in Shelby County v. Holder on June 25, 2013, part of the Voting Rights Act of 1965 was invalidated by the Supreme Court.

Chief Justice Roberts, delivering the opinion for the court, wrote:

Not only do States retain sovereignty under the Constitution, there is also a ‘fundamental principle of equal sovereignty’ among the States. Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’ Indeed, ‘the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.’ [citations omitted]”

He went on to explain that in the opinion of the court, The Voting Rights Act sharply departs from the basic principles of equal sovereignty among the states. While admitting that “voting discrimination still exists; no one doubts that” the court averred the issue was whether the Act’s “extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.” His answer was no.

Justice Roberts - Happy White Male Voter

Justice Roberts – Happy White Male Voter

Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, issued a thirty-seven-page dissent, arguing, inter alia, that one doesn’t throw out the umbrella in a rainstorm just because you are not getting wet. Indeed, as soon as the “umbrella” was discarded by the court, Southern states immediately moved to give people of color a soaking. Within two hours of the ruling, Texas announced a voter identification law would go into effect, along with redistricting. Alabama, Mississippi and South Carolina also moved forward with voter identification bills that had been put on hold. Florida is resuming it’s controversial initiative to screen for suspected non-citizens and purge them from the voter rolls.


As Justice Ginsberg basically predicted in her dissent:

The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. With that belief, and the argument derived from it, history repeats itself. The same assumption—that the problem could be solved when particular methods of voting discrimination are identified and eliminated—was indulged and proved wrong repeatedly prior to the VRA’s enactment. Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress’ recognition of the “variety and persistence” of measures designed to impair minority voting rights. In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding. [citations omitted]”

In a cogent article for The New York Review of Books, Justice John Paul Stevens wrote about the decision in what amounted to a strong endorsement of Justice Ginsberg’s dissent.

Justice John Paul Stevens

Justice John Paul Stevens

He contends that, first of all, the Court’s reliance of the principle of equal sovereignty among the States, is entirely without merit. His explanation is worth quoting at length:

Article I, Section 2 of the Constitution created a serious inequality among the states. That clause counted “three fifths” of a state’s slaves for the purpose of measuring the size of its congressional delegation and its representation in the Electoral College. That provision was offensive because it treated African-Americans as though each of them was equal to only three fifths of a white person, but it was even more offensive because it increased the power of the southern states by counting three fifths of their slaves even though those slaves were not allowed to vote. The northern states would have been politically better off if the slave population had been simply omitted from the number used to measure the voting power of the slave states.

The fact that this “slave bonus” created a basic inequality between the slave states and the free states has often been overlooked, as has its far-reaching impact. In 1800, for example, that bonus determined the outcome of the presidential election since it then gave the southern states an extra nine or ten votes in the Electoral College, and Thomas Jefferson prevailed over John Adams by only eight electoral votes. Because of the slave bonus, Adams served only one term as president.

The slave bonus unfairly enhanced the power of the southern states in Congress throughout the period prior to the Civil War. It was after the war that Section 2 of the Fourteenth Amendment, passed in 1868, put an end to the slave bonus. When the Fifteenth Amendment was ratified in 1870 during the Grant administration, the size of the southern states’ congressional delegations was governed by the number of citizens eligible to vote. Since that number included blacks as well as whites, during Reconstruction those states were no longer overrepresented in either Congress or the Electoral College.

After reconstruction ended, however, the terrorist tactics of the Ku Klux Klan and other groups devoted to the cause of white supremacy effectively prevented any significant voting at all by African-Americans, thus replacing a pre-war three-fifths bonus with a post-Reconstruction bonus of 100 percent of the nonvoting African-Americans. Thus, for almost a century—until the VRA was enacted during President Johnson’s administration—the southern states’ representation in Congress was significantly larger than it should have been.

Both the underrepresentation of blacks and the overrepresentation of white supremacists in the South during that period contradict the notion that the “fundamental principle of equal sovereignty among the States” is a part of our unwritten Constitution. [my emphasis]”

Furthermore, Stevens objects to the idea that the determination of whether the need for preclearance is still justified should be made by the Supreme Court rather than by the members of Congress:

The several congressional decisions to preserve the preclearance requirement—including its 2006 decision—were preceded by thorough evidentiary hearings that have consistently disclosed more voting violations in those states than in other parts of the country. Those decisions have had the support of strong majority votes by members of both major political parties. Not only is Congress better able to evaluate the issue than the Court, but it is also the branch of government designated by the Fifteenth Amendment to make decisions of this kind.”

Finally, Justice Stevens also objected to the way the ruling avoided the rule of judicial restraint. As he explains, normally, in a so-called facial challenge, the plaintiffs challenging the constitutionality of a federal statute are required to convince the Court that the statute is invalid under all circumstances.

We are apt to see even more alarming consequences of this decision soon. According to Stateline, the news service of The Pew Charitable Trusts,

In 37 states, one party now controls both the statehouse and governor’s mansion, the most in 60 years. Both parties have used that power to make sweeping — and divergent —changes on a slew of issues, including guns, taxes, immigration, elections, gay marriage and more.

Furthermore, in 22 states one party now enjoys a veto-proof majority in both chambers. Fourteen of those states are Republican.”

Legislative Review Power Politics

The movement for additional voter ID laws are proceeding apace. As Charles Blow wrote recently:

While Republicans may claim that voter ID laws are about the sanctity of the vote, Republican power brokers know they’re about much more: suppressing the votes of people likely to vote Democratic. …Rob Gleason, the Pennsylvania Republican Party chairman, discussed the effects of his state’s voter ID laws on last year’s presidential election, acknowledging to the Pennsylvania Cable Network: “We probably had a better election. Think about this: we cut Obama by 5 percent, which was big. A lot of people lost sight of that. He won — he beat McCain by 10 percent; he only beat Romney by 5 percent. I think that probably voter ID helped a bit in that.”

Justice Ginsburg

Justice Ginsburg

Mr. Blow is not the only one who noticed that history is repeating itself. In an interview, Justice Ginsburg revealed her lack of surprise at the immediate response to the decision in Shelby County v. Holder, saying:

The notion that because the Voting Rights Act had been so tremendously effective we had to stop it didn’t make any sense to me,” Ginsburg said in a wide-ranging interview late Wednesday in her office at the court. “And one really could have predicted what was going to happen. … I didn’t want to be right, but sadly I am.”


Get every new post delivered to your Inbox.

Join 46 other followers