July 2, 1964 – Civil Rights Act of 1964 Signed Into Law

On this day in history, President Lyndon Johnson, using 72 ceremonial pens, signed into law the Civil Rights Act of 1964 (Public Law 88-352). In spite of the passage of the 13th, 14th, and 15th amendments, individual states continued to allow unfair treatment of minorities and passed Jim Crow laws allowing segregation of public facilities. The 1964 Act outlawed any discrimination in public facilities on the basis of race, color, religion, sex, or national origin, required equal access to public places and employment, and enforced desegregation of schools and the right to vote.

President Lyndon B. Johnson in 1964

President Lyndon B. Johnson in 1964

Passage of the act was extremely difficult, on account of the opposition of Southern senators, who staged a 75-day filibuster – among the longest in U.S. history. The Years of Lyndon Johnson: The Passage of Power by Robert A. Caro tells the story of how it got accomplished in fascinating detail. It is unfortunate that Johnson is remembered more for the tragedy of Vietnam than the triumph of pushing this important bill through Congress.

The 1964 Act did not end discrimination, and almost immediately, the new civil rights law came under legal challenge. The court cases mostly had the effect, however, of solidifying civil rights. In one case, the owner of an Atlanta motel, “The Heart of Atlanta,” argued that Congress, in passing this act, exceeded its power to regulate commerce; that the act violated the Fifth Amendment because the appellant was deprived of the right to choose its customers and operate its business as it wishes, resulting in a taking of its liberty and property without due process of law and a taking of its property without just compensation; and, finally, in a supremely ironic touch, the appellant argued that by requiring appellant to rent available rooms to Negroes against its will, Congress was subjecting it to “involuntary servitude” in contravention of the Thirteenth Amendment. Heart of Atlanta Motel Inc. v. United States (379 U.S. 241), decided on December 14, 1964, was a landmark case holding that the U.S. Congress could use the power granted to it by the Constitution’s Commerce Clause to force businesses, even if “of a purely ‘local’ character,” to abide by the Civil Rights Act of 1964.

Other relevant cases included Katzenbach v. McClung (379 U.S. 294, 1964) upholding the right of the federal government to mandate desegregation in restaurants; and Griggs v. Duke Power Co. (401 U.S. 424, 1970), in which a unanimous Court held that when an employment practice operates to exclude African-Americans or other racial minorities, that practice is prohibited unless the employer can show that it fulfills a genuine business need and is a valid measure of an applicant’s ability to learn or perform the job in question.

In Washington v. Davis (26 U.S. 229, 1976), however, the Court ruled against the African-American plaintiffs who had been rejected for positions in the D.C. Police Department. The plaintiffs alleged that the Department’s recruiting procedures, including a written personnel test, discriminated against racial minorities, claiming that the test was unrelated to job performance and excluded a disproportionate number of black applicants. The Court found that the Equal Protection Clause of the Fourteenth Amendment was designed to prevent official discrimination on the basis of race; laws or other official acts that had racially disproportionate impacts did not automatically become constitutional violations. The Court stated: “Racial discrimination by state must contain two elements: a racially disproportionate impact and discriminatory motivation on the part of the state actor.”

Justice William J. Brennan, joined by Justice Thurgood Marshall, dissented. Although the Court stated that a showing of discriminatory intent was necessary to make out a claim under the Constitution, it did ot clarify what sort of showing might pass the test. As Justice Brennan pointed out in his dissenting opinion, discriminatory purpose cannot always be distinguished from discriminatory impact.

President Johnson signing the Civil Rights Act on July 2, 1964

President Johnson signing the Civil Rights Act on July 2, 1964

November 8, 1772 – Birthdate of William Wirt, Influential U.S. Attorney General

William Wirt was born on this day in history in Bladensburg, Maryland. He later moved to Virginia and was admitted to the Virginia bar in 1792.

In 1807, President Thomas Jefferson asked him to be the prosecutor in Aaron Burr’s trial for treason. His principal speech was four hours in length, and garnered him a great deal of praise.

In 1816 he was appointed U.S. Attorney for the Eastern District of Virginia, and in 1817 President James Monroe named him the ninth Attorney General of the United States, a position he held for 12 years, through the administration of John Quincy Adams, until 1829. He has the record for the longest tenure in history of any U.S. attorney general.

William Wirt, 9th United States Attorney General in office November 13, 1817 – March 4, 1829

William Wirt, 9th United States Attorney General in office
November 13, 1817 – March 4, 1829

In March 1831, Wirt appeared before the Supreme Court on behalf of the Cherokee Nation, in the case known as Cherokee Nation v. Georgia (30 U.S. 1). The state of Georgia had been doing everything it could to get the Cherokees to leave, short of causing them to die (that would come later in the decade). The Cherokees wanted to plead their cause with the Supreme Court, but needed to come up with a way to get there, since no one thought Georgians would allow a test case through the state courts. Wirt came up with the idea of claiming that the Cherokees were a foreign nation, which would qualify for the Court’s original jurisdiction.

In a brief Wirt filed with the Court, he argued that Georgia’s laws regarding the Cherokees were “repugnant to the constitution, laws, and treaties of the United States.” “This ancient people,” he contended – “a nation far more ancient than ourselves . . . present themselves to you as a separate, sovereign state. They complain that a state of this union has invaded their rights of person and of property, by a species of legislative warfare, in violation of the treaties, the constitution, and the laws of the United States.”

While Justice John Marshall openly expressed sympathy for the Cherokee’s plight, he ruled against them, refuting the idea that the Cherokees constituted a foreign nation. Wirt went back to Marshall in 1832 to argue Worcester v. Georgia (31 U.S. 515), also a case questioning the constitutionality of the laws of Georgia, but with a much more acceptable underlying premise. This time Wirt won his case, but the Cherokees lost the war, when both Georgia and the United States refused to support the decision.

Wirt went on to run for President in 1832, a nominee of the Anti-Masonic party. In the subsequent election, Wirt carried Vermont with seven electoral votes, becoming the first candidate of an organized third party to carry a state.

Wirt practiced law until his death in 1834.

October 11, 1991 – Anita Hill’s Statement to the Senate Judiciary Committee About Clarence Thomas

In 1991, Thurgood Marshall, named to the Supreme Court by President Lyndon Johnson, and the first African-American to be appointed to the Court, decided to retire. Republican President George Bush saw Justice Marshall’s retirement as an opportunity to appoint a more conservative judge to the Supreme Court. He selected Clarence Thomas, a forty-three-year-old conservative African-American from Pinpoint, Georgia. Although black, Thomas was sufficiently conservative to insure a more right-leaning make-up to the Court.

The nomination of Clarence Thomas was instantly controversial. Many African-American groups, Civil Rights organizations, and groups supporting women’s rights opposed the Thomas nomination, fearing Thomas’s conservativism would lead to a reversal of the gains blacks had seen during Marshall’s tenure. Even the legal community voiced apprehension about Thomas’s clear lack of judicial experience.

Then-U.S. Supreme Court nominee Clarence Thomas during confirmation hearings before the Senate Judiciary Committee in Washington, Sept. 10, 1991. PHOTO: J. DAVID AKE/AFP/GETTY IMAGES

Then-U.S. Supreme Court nominee Clarence Thomas during confirmation hearings before the Senate Judiciary Committee in Washington, Sept. 10, 1991.
PHOTO: J. DAVID AKE/AFP/GETTY IMAGES

Nevertheless, the Thomas nomination proceeded to the Senate Judiciary Committee for confirmation hearings. The hearings took a dramatic turn when Anita Hill, a law professor at the University of Oklahoma, came forward with accusations that Clarence Thomas had sexually harassed her. Hill had worked for Thomas years earlier when he was head of the Equal Employment Opportunity Commission (EEOC). For three days, millions of Americans watched the hearings that were broadcasted on live TV.

University of Oklahoma law professor Anita Hill testifies before the Senate Judiciary Committee on Capitol Hill in 1991. AP

University of Oklahoma law professor Anita Hill testifies before the Senate Judiciary Committee on Capitol Hill in 1991. AP

Thomas denied the allegations, calling the hearings “a high-tech lynching for uppity Blacks.” It became a he-said-she-said issue, and in the end, the Senate voted 52-48 to confirm Clarence Thomas as associate justice of the Supreme Court.

But Anita Hill’s testimony is considered to be one of the “Top 100 American speeches of the 20th century.” She said in part:

It is only after a great deal of agonizing consideration that I am able to talk of these unpleasant matters to anyone except my closest friends. As I’ve said before these last few days have been very trying and very hard for me, and it hasn’t just been the last few days this week. It has actually been over a month now that I have been under the strain of this issue.

Telling the world is the most difficult experience of my life, but it is very close to having to live through the experience that occasion this meeting. I may have used poor judgment early on in my relationship with this issue. I was aware, however, that telling at any point in my career could adversely affect my future career. And I did not want early on to burn all the bridges to the EEOC.

As I said, I may have used poor judgment. Perhaps I should have taken angry or even militant steps, both when I was in the agency, or after I left it. But I must confess to the world that the course that I took seemed the better as well as the easier approach.

I declined any comment to newspapers, but later when Senate staff asked me about these matters I felt I had a duty to report. I have no personal vendetta against Clarence Thomas. I seek only to provide the committee with information which it may regard as relevant.

It would have been more comfortable to remain silent. It took no initiative to inform anyone — I took no initiative to inform anyone. But when I was asked by a representative of this committee to report my experience, I felt that I had to tell the truth. I could not keep silent.”

You can read the full text of her remarks here.

As The Huffington Post reports:

Hill’s impact was tangible. Her testimony set off a greater national understanding of what sexual harassment looks like in the workplace, pushing employers to institute trainings on the subject. In 1991, the Equal Employment Opportunity Commission (EEOC, where Hill had worked under Thomas) reported 3,349 charges filed alleging sexual harassment. In 1992, that number shot up to 5,607.”

September 24, 1755 – Birth of John Marshall, Fourth Chief Justice of U.S. Supreme Court

John Marshall was born in a rural community on the Virginia frontier, in what is now Fauquier County, on September 24, 1755.

His parents decided John was to be a lawyer, and John’s father bought him a copy of William Blackstone’s Commentaries on the Laws of England for John to read and study. After serving in the Continental Army during the American Revolution, Marshall read law under the famous Chancellor of the College of William and Mary, George Wythe; was elected to Phi Beta Kappa; and was admitted to the Virginia Bar in 1780. He was in private practice in Fauquier County before entering politics.

In 1788, Marshall was selected as a delegate to the Virginia convention responsible for ratifying or rejecting the United States Constitution, which had been proposed by the Philadelphia Convention a year earlier. Together with his fellow Virginians James Madison and Edmund Randolph, Marshall led the fight for ratification. He was especially active in defense of Article III, which provides for the Federal judiciary. Marshall identified with the new Federalist Party (which supported a strong national government and commercial interests), and opposed Jefferson’s Republican Party (which advocated states’ rights and idealized the yeoman farmer and the French Revolution).

John Marshall painting from 1797

In 1798, Marshall declined a Supreme Court appointment by President John Adams, recommending Bushrod Washington, who would later become one of Marshall’s staunchest allies on the Court. Instead, Adams named Marshall as Secretary of State.

Adams and the Federalists were defeated in the presidential election of 1800, but the President and the lame duck Congress passed what came to be known as the Midnight Judges Act, which made sweeping changes to the federal judiciary, including a reduction in the number of Justices from six to five (upon the next vacancy in the court) so as to deny Jefferson an appointment until two vacancies occurred. In addition, since the incumbent Chief Justice Oliver Ellsworth was in poor health, Adams nominated Marshall. Marshall was confirmed by the Senate on January 27, 1801, and received his commission on January 31, 1801. President John Adams offered this appraisal of Marshall’s impact: “My gift of John Marshall to the people of the United States was the proudest act of my life.”

Marshall served as Chief Justice during 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. According to the Oyez Project, Marshall’s impact on constitutional law is without peer, and his imprint on the Court’s jurisprudence remains indelible.

In the excellent book John Marshall: The Chief Justice Who Saved The Union by Harlow Giles Unger, Unger takes the interesting approach of illuminating the contributions of John Marshall to the protection and preservation of the Constitution by describing the many ways in which Thomas Jefferson sought to subvert it. This book will educate readers about the actual operations of the early republic, rather than the usual “patriotic” myths fed to students of history. Although revered as a “Founding Father,” Jefferson was in truth often interested more in advancing his own ideas and ambition than in honoring the Constitution.

cover_john_marshall

Marshall’s legacy as the 4th Chief Justice of the Supreme Court was the assurance of “the integrity and eminence of the Constitution and the federal government.” Marshall, who was the longest serving Chief Justice in American history, signed over 1,180 decisions, writing 549 of them. As Unger shows:

In the course of his Supreme Court leadership Marshall stood at the center of the most riveting – and most important – courtroom dramas in the nation’s formative years. Case by case he defined, asserted, and when necessary, invented the authority he and the Court needed to render justice, stabilize the federal government, and preserve the Union and its Constitution.”

Because of Marshall’s efforts, the judiciary became an equal branch of the federal government. But it was not a predetermined outcome. When Jefferson didn’t get his way, he used every means at his disposal to try to vitiate the judiciary. To his chagrin, however, even when he appointed his own men to the bench, they became so impressed with Marshall’s erudition, devotion to the law, and integrity, that one by one, they became Marshall men instead of Jefferson men.

John marshall painting 1828

To this day, the decisions written or influenced by Marshall continue to shape the American polity. From his opinion in Marbury v. Madison, in which he established the independence of the federal judiciary, to his insistence in U.S. v. Burr that no one, not even the president, is above the law, Marshall made a lasting and positive imprint on the character of the country. And while Jefferson continued to insist, even when retired, that the federal and state governments represented two independent and equal sovereigns, Marshall, in McCulloch v. Maryland, set forth the precedent that state action may not impede valid constitutional exercises of power by the Federal government. The United States would be a radically different place had it not been for “the great, the good, the wise” John Marshall, as he was described by another famous and well-respected Supreme Court Justice, Joseph Story.

Daguerreotype of Supreme Court justice Joseph Story, 1844

Discussion: One reason I like Unger very much as a historian is that he has always been able to avoid portraying the Founding Fathers in sepia tones with golden halos. He is not loathe to point out, for example, that Jefferson was a vicious man who operated sub rosa through lackeys to destroy the careers and lives of anyone and everyone who disagreed with him. He is not reluctant to provide evidence for how much of the Declaration of Independence was lifted by Jefferson from other writings, such as those of John Locke, or how pusillanimously Jefferson behaved when fighting broke out in the American Revolution. He also takes Jefferson to task for his treasonous acts against President John Adams when Jefferson himself was serving as Vice President. (This includes the concealment of evidence by Jefferson that would exonerate Adams from charges of impeachment, a movement for which Jefferson was leading the chorus.) And he doesn’t hesitate to speak of Jefferson’s bribes to members of the press to calumniate his opponents; his threats to start a Civil War if he were not elected in 1800; his blatant disdain of the Constitution when it got in the way of what he wanted to do; and his attempts to emasculate the judiciary so that it could not rule against any of his decisions.

Thomas Jefferson by Rembrandt Peale

Thomas Jefferson by Rembrandt Peale

Jefferson largely escapes such a close look at his behavior because of the need for the American narrative to show him as a great man, who joined other great men to create a great nation. Even the recent DNA evidence of Jefferson’s long-time affair with Sally Hemings has been downplayed, and those who acknowledge it are quick to point out Jefferson’s long-standing relationship with her, as if his alleged monogamy would make up for his taking up with a fifteen-year old girl when he was forty-six, a girl who was in his care as a slave, unable not to do his bidding. The entire time she was his mistress, she continued to serve as his slave, in addition to being pregnant almost continuously when he was in town. She was not even freed by his will when he died. But collective memory serves to establish moral, political, and social lessons, and to help form an understanding of who we are as a people. Truth can often fall by the wayside.

Unger, however, has a respect for facts.

He also has a keen eye for those early figures in our history who displayed more character, more nuance, more courage, and more loyalty to the aims of the young country. One of those was John Marshall. This well-written story will keep your attention from beginning to end. Highly recommended!

Rating: 5/5

Published by Da Capo Press, a member of the Perseus Books Group, 2014

John Marshall by Henry Inman, 1832

September 22, 1915 – Birthdate of Civil Rights Attorney Charles Lund Black, Jr.

Charles Lund Black, Jr. was born on Sept. 22, 1915, in Austin, Texas, one of three children of a prominent lawyer. In 1931, as a 16-year-old freshman studying Greek classics at the University of Texas at Austin, he happened to hear Louis Armstrong play. He later wrote in the Yale Law Journal:

He was the first genius I had ever seen. . . . It is impossible to overstate the significance of a sixteen-year-old southern boy’s seeing genius, for the first time, in a black. We literally never saw a black then in any but a servant’s capacity. It was just then that I started toward the Brown case where I belonged.”

Armstrong himself, according to jazz critic Nat Hentoff, wrote in a September, 1941 letter:

I’d like to recall one of my most inspiring moments. I was playing a concert date in a Miami auditorium. I walked on stage and there I saw something I’d never seen. I saw thousands of people, colored and white, on the main floor. Not segregated in one row of whites and another row of Negroes. Just all together – naturally. I thought I was in the wrong state. When you see things like that, you know you’re going forward.”

Louis Armstrong in 1934

Louis Armstrong in 1934

In 1954, Black, then a white professor of constitutional law, helped Thurgood Marshall of the NAACP Legal Defense and Educational Fund Inc. to write the legal brief for Linda Brown, a 10-year-old student in Topeka, Kansas, whose historic case, Brown v. Board of Education (347 U.S. 483), decided May 17, 1954, became the Supreme Court’s definitive judgment on segregation in American education.

Professor Charles Black

Professor Charles Black

Professor Black taught generations of law students, first at Columbia from 1947 to 1956, then at Yale for 30 years, and then at Columbia from 1986 until his health began to fail prior to his death in 2001. Black was the first Henry R. Luce Professor of Jurisprudence at Yale, and in 1975 he became the Sterling Professor of Law, the highest academic rank at Yale. He also wrote more than 20 books and many articles on constitutional law, admiralty law, capital punishment, the role of the judiciary and other legal subjects, including Impeachment: A Handbook, that was widely praised in 1974, when President Richard M. Nixon resigned in the Watergate scandal, and also when reissued during the 1999 proceedings against President Bill Clinton. His last book, A New Birth of Freedom (1997), re-examined the Declaration of Independence and the Ninth and 14th Amendments to the Constitution as a basis for unwritten human rights.

[Sources for this post came from Columbia University, The New York Times (5/08/01), and The Wall Street Journal (1/15/09).] You can read more about Black’s recollections of Louis Armstrong here. He said in this article:

All men, to be sure, are kin, but Southern whites and Negroes are bound in a special bond. In a peculiar way, they are the same kind of people. They are happy alike, they are poor alike. Their strife is fratricidal, born of ignorance. And the tragedy itself has, of course, deepened the kinship; indeed, it created it.

My dream is simply that sight will one day clear and that each of the participants will recognize the other.”

Review of “The Case for Loving: The Fight for Interracial Marriage” by Selina Alko

Case-for-Loving-by-Selina-Alko-on-BookDragon-670x800

As the Author explains in an Afterword to this book, she is white and her husband, fellow illustrator Sean Qualls, is African-American. They fell in love and were married in 2003. Alko writes:

“I must admit, it’s difficult to imagine that just decades ago couples just like us not only faced discrimination, but were told by their governments that their love was unlawful.”

But it was only in 1967 that the U.S. Supreme Court declared that anti-mixed marriage statutes were unconstitutional, in the landmark civil rights case Loving v. Virginia. Chief Justice Earl Warren, writing for the Court, declared that statutes preventing marriage solely on the basis of racial classification violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

At the time of this decision, Virginia was one of sixteen states prohibiting and punishing marriages on the basis of racial classification. According to one Virginia statute, a “white person” was absolutely prohibited from marrying anyone other than another “white person.” The license-issuing official had to be satisfied that applicants’ statements as to their race were correct, and certificates of “racial composition” had to be kept by both state and local registrars.

CaseForLoving_1

This book tells the story of two Virginia residents, Mildred Jeter, part African-American and part Cherokee, and Richard Loving, a fair-skinned white boy. The two fell in love, but had to travel to Washington, D.C. to get married legally, which they did in 1958. Shortly thereafter, they returned to Virginia and took up residence.

CaseLoving3

They’d been married just a few weeks when, in the middle of the night in July, 1958, the county sheriff and two deputies, acting on an anonymous tip that the Lovings were in violation of the law, stormed into the couple’s bedroom. They informed the Lovings that their marriage license was no good in Virginia, and hauled Richard and the pregnant Mildred off to jail.

The couple eventually pleaded guilty to violating the Virginia law, which recognized citizens as “pure white” only if they could claim white lineage all the way back to 1684. The presiding judge ruled:

“Almighty God created the races white, white, black, yellow, malay and red, and he placed them on separate continents.” And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

The Lovings were convicted and sentenced to one year in jail; however, the trial judge suspended the sentence for 25 years on the condition that the Lovings leave Virginia. They moved to D.C., but missed their friends and family and the Virginia countryside. In 1964, frustrated by their inability to travel together to visit their families in Virginia, Mildred Loving wrote in protest to Attorney General Robert F. Kennedy. Kennedy referred the matter to the American Civil Liberties Union.

CaseLoving2

The ACLU filed a motion on the Lovings’ behalf to vacate the judgment and set aside the sentence on the ground that the statute, the “Racial Integrity Act of 1924,” violated the Fourteenth Amendment. The Lovings also filed a class action in federal court to have the Virginia statutory scheme declared unconstitutional. This began a series of procedures and appeals that ultimately reached the Supreme Court.

Mildred and Richard Loving with their three children on the front porch of their Virginia home in the late 1960’s.

Mildred and Richard Loving with their three children on the front porch of their Virginia home in the late 1960’s.

Mildred and Richard Loving went on to have three children: Donald, Peggy and Sidney Loving. In the book, the authors aver that the Loving family, back in Virginia, lived “happily (and legally!) ever after.” But the truth is more tragic. Richard Loving died at age 41 in 1975, when a drunken driver struck their car. Mildred Loving lost her right eye in the same accident.

Mildred Loving died of pneumonia in 2008, in Milford, Virginia, at age 68. Her daughter Peggy Fortune said “I want [people] to remember her as being strong and brave yet humble — and believ[ing] in love.”

Mildred and Richard Loving in 1967

Mildred and Richard Loving in 1967

This book is a testament to that love, and also to the love between the Selina Alko and Sean Qualls. For the art work, they collaborated, using paint and collage in bold and beautiful colors. This is their first book together, but you can see in this book the influence of their previous (separate) books about mixed race relationships, such as Who Will I Be, Lord? by Vaunda Micheaux Nelson, Sean Qualls, Illustrator, and I’m Your Peanut Butter Big Brother by Selina Alko (both author and illustrator).

Evaluation: This story is told truthfully, but with the focus on the positive aspects of love, family, and the conviction that “Brand-new ideas, like equal rights for people of all colors, were replacing old, fearful ways of thinking.” One can only hope that faith continues to be justified.

Rating: 4.5/5

Published by Arthur A. Levine Books, an imprint of Scholastic Inc., 2015

July 11, 1941 – Robert Jackson Sworn in as Associate Justice of the U.S. Supreme Court

Robert Jackson, born in 1892, served as United States Solicitor General (1938-1940), United States Attorney General (1940–1941) and an Associate Justice of the United States Supreme Court (1941–1954). He is the only person in United States history to have held all three of those offices. He was also the chief United States prosecutor at the Nuremberg Trials. In addition, he is the last Supreme Court justice appointed who did not graduate from any law school.

Robert H. Jackson

Robert H. Jackson

Jackson began his career in the law at age 18, when he went to work as an apprentice in a Jamestown, New York two-attorney law office with his uncle who was a lawyer. Jackson did attend Albany Law School, in Albany, New York during 1911–12. Although Jackson completed the second year of the school’s two-year program, he was denied a law degree because he was under age twenty-one.

During the summer of 1912, Jackson returned to Jamestown, apprenticing again for the next year. He passed the New York bar examination in 1913 and joined a law practice in Jamestown, New York, later moving with his wife to Buffalo.

Jackson took a number of leadership roles in the bar, and in 1933 was elected chairman of the American Bar Association’s Conference of Bar Association Delegates (a predecessor to today’s ABA House of Delegates).

In 1934, he was appointed by Franklin Roosevelt to be general counsel for the Bureau of Internal Revenue in the Treasury Department and served as the government’s principal tax attorney. In 1936, Jackson became Assistant Attorney General of the Tax Division in the Department of Justice and, less than two months later, he assumed the position of Assistant Attorney General for the Antitrust Division. In this position, he argued 10 cases before the Supreme Court.

Robert H. Jackson

Robert H. Jackson

In March, 1938, Jackson was confirmed by the Senate as the 24th Solicitor General of the United States. During his tenure as Solicitor General, Jackson argued 27 cases before the Court and lost 4.

Justice Louis Brandeis reportedly observed that Jackson was so good at the position he should serve as Solicitor General for life. (James M. Marsh, “Robert H. Jackson,” in The Supreme Court Justices: Illustrated Biographies, 1789-1993, ed. Clare Cushman (Washington, DC: Congressional Quarterly, 1993), at 408.)

In January 1940, Robert Jackson was appointed to be the Attorney General. He remained in that position until July 1941, when he was elevated to the Supreme Court on this day in history. In all, Justice Jackson served as a government attorney in five different capacities within the Department of Justice and argued before the Supreme Court on 37 separate occasions prior to joining the Court. (“From Solicitor General to Supreme Court Nominee: Responsibilities, History, and the Nomination of Elena Kagan” by Susan Navarro Smelcer & Kenneth R. Thomas, CRS, June 23, 2010)

During Jackson’s tenure on the Court, President Harry Truman asked him to serve as the chief U.S. prosecutor at the Nuremburg Trials.

1946 photo of Chief U.S. prosecutor Robert H. Jackson seen during summation statements at the International War Crimes Tribunal at Nuremberg, Germany.   (AP Photo)

1946 photo of Chief U.S. prosecutor Robert H. Jackson seen during summation statements at the International War Crimes Tribunal at Nuremberg, Germany. (AP Photo)

Justice Jackson was known for a number of important opinions, including his concurring opinion in 1952’s Youngstown Sheet & Tube Co. v. Sawyer (343 U.S. 579, 1952) (forbidding President Harry Truman’s seizure of steel mills during the Korean War to avert a strike), in which Jackson formulated a three-tier test for evaluating claims of presidential power. This remains one of the most widely cited opinions in Supreme Court history.

Jackson is also often quoted for his statement about the Supreme Court in Brown v. Allen (344 U.S. 443, 1953) that “We are not final because we are infallible, but we are infallible only because we are final.”

After serving over 13 years on the Court, Justice Jackson died suddenly of a heart attack on October 9, 1954.

June 28, 1978 – The U.S. Supreme Court Decides Regents of the Univ. of Cal. v. Bakke

On this day in history, the U.S. Supreme Court in Regents of the University of California v. Bakke, 438 U.S. 265 upheld affirmative action, allowing race to be one of several factors in college admissions policy. However, the court found that specific quotas, such as the 16 out of 100 seats set aside for minority students by the University of California, Davis School of Medicine, were impermissible.

Allan Bakke, a white applicant, was twice denied admission to the medical school even though his test scores were “significantly higher” than those of some minority applicants recently admitted.

Bakke first sued the University of California in a state court, alleging that the medical school’s admission policy violated Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment’s Equal Protection Clause. The California Supreme Court agreed, finding that the quota system explicitly discriminated against racial groups and holding that “no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race.” The medical school, ordered to shut down its quota system, appealed to the U.S. Supreme Court, which reviewed the case in 1978.

In a 5-4 decision written by Justice Lewis Franklin Powell, the Court ruled that a state may constitutionally consider race as a factor in its university admissions to promote educational diversity, but only if considered alongside other factors and on a case-by-case basis.

Portrait of Lewis Franklin Powell, Jr.

Portrait of Lewis Franklin Powell, Jr.

In this case, however, California’s use of racial quotas did not meet those requirements because of the fact that it reserved 16 out of 100 spots solely for consideration by race. The Court found the fact that blacks historically had been discriminated against more than whites was irrelevant, because racial quota systems, whether applied against whites or blacks, were always “odious to a free people whose institutions are founded upon the doctrine of equality.” Indeed, because the school’s quota was designed to redress past discrimination against racial minorities, the Court stated, it was intended to prefer “one group for no other reason other than race or ethnic origin.” Thus, the Court ruled that the school’s quota system “must be rejected … as racially invalid” under the Equal Protection Clause.

Justice Thurgood Marshall felt that affirmative action was important and more than justified. In a separate opinion, he wrote:

…today’s judgment ignores the fact that, for several hundred years, Negroes have been discriminated against not as individuals, but rather solely because of the color of their skins. It is unnecessary in 20th-century America to have individual Negroes demonstrate that they have been victims of racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact. The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups. It is not merely the history of slavery alone, but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has not been realized for the Negro; because of his skin color, he never even made it into the pot. [my emphasis]”

He further opined:

In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society. [my emphasis]

It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to those positions have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person’s skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors. I do not believe that anyone can truly look into America’s past and still find that a remedy for the effects of that past is impermissible.”

Supreme Court Justice Thurgood Marshall

Supreme Court Justice Thurgood Marshall

June 5, 1762 – Birth of Bushrod Washington, Associate Justice of the U.S. Supreme Court

Bushrod Washington, born on this day in history, was the son of John Augustine Washington, who was George Washington’s brother.

Bushrod Washington graduated from the College of William & Mary in 1778 and along with John Marshall studied law under George Wythe. (Wythe also taught and was a mentor to Thomas Jefferson, Henry Clay and other men who became American leaders.)

Bushrod Washington, engraving, 1891,  Library of Congress

Bushrod Washington, engraving, 1891,
Library of Congress

Washington practiced law from 1784 to 1798, simultaneously serving in the Virginia House of Delegates. On September 29, 1798, President John Adams appointed Washington to the seat on the U.S. Supreme Court vacated by James Wilson after John Marshall had declined the appointment. Washington was confirmed by the United States Senate on December 20, 1798, and became an associate justice on February 4, 1799, at the age of 36, continuing until his death in 1829.

Serving for thirty-one years, Washington – a Federalist – tended to support the opinions of Chief Justice John Marshall and Justice Joseph Story. Washington favored increasing the powers of the federal government, protecting private property rights and encouraging economic development. He voted so consistently with the great Chief Justice that they were considered conjoined “as a single judge.” He only voted against Marshall on three occasions. 

Bushrod Washington

Bushrod Washington


 
As George Washington’s favorite nephew, Bushrod inherited Mount Vernon after Martha Washington’s death, and became executor of his uncle’s estate, including President Washington’s public and private papers. 

When Bushrod and his wife moved to Mount Vernon, he brought his slaves, but even so was unable to support the upkeep of the plantation’s mansion on the proceeds from the property and his Supreme Court salary. He sold many of his slaves to gain working capital to support the main house and property. (Somewhat in keeping with the tendency of early Americans to say one thing and do another, Washington was among the founders of the American Colonization Society (ACS), which promoted repatriation to Africa of blacks.)

Bushrod died in Philadelphia, Pennsylvania, on November 26, 1829, while riding circuit. His wife died two days later while transporting his body for burial. They were both interred at Mount Vernon.

May 17, 1954 – Brown v. Board of Education & The Wrangling Behind the Decision: Review of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices” by Noah Feldman

Felix Frankfurter Professor of Law at Harvard, Noah Feldman, has given us a thoroughly researched, well-written, solid analysis of the inner workings of the U.S. Supreme Court from the time it was dominated by four appointees of Franklin D. Roosevelt. The appointees, the “Scorpions” of the title, all began as supporters of FDR’s New Deal, and thus putative “liberals.” However, over two decades on the Court their perspectives matured and diverged, and they became rivals for intellectual leadership in constitutional scholarship. Their rivalry in some case even became personal detestation.

Feldman’s account includes short, revealing mini-biographies of each subject jurist. Felix Frankfurter was an ebullient Jew [“an interesting little man but very Jew” in the exact words of Eleanor Roosevelt] who began as America’s leading liberal intellectual, but evolved into its most famous judicial conservative. Hugo Black was a former Ku Klux Klansman who became a vigorous advocate of free speech and civil rights. Robert Jackson was a backcountry lawyer in Upstate New York who later became chief prosecutor in the Nuremberg trials. William O. Douglas at first sought to use his appointment to the Court as a stepping stone to the presidency, but stymied in that pursuit, expanded individual freedom “beyond what anyone before had dreamed.”

Justice Felix Frankfurter

The most pressing legal issue in FDR’s presidency was the constitutionality of various New Deal programs. Many of those programs infringed on the “liberty of contract” [such as the “liberty” to go to work at age 12 or work more than 60 hours per week in menial jobs] enunciated in the 1905 decision, Lochner v. New York. Although each individual’s “liberty” is expressly protected by the 14th Amendment, nowhere in the Constitution does the term “liberty of contract” appear. The first eight cases on the constitutionality of New Deal legislation to reach the Court resulted in 5-4 decisions against the statutes. Feldman reprises the oft-told tale of FDR’s court-packing scheme; how testimony by Robert H. Jackson, a Roosevelt confidant and future Supreme Court appointee (then Solicitor General) before Congress supported the plan; how Frankfurter opposed it; and how a change in opinion by Justice Owen Roberts obviated the scheme by providing the Court with a 5-4 majority to overrule Lochner. Ultimately, it was Frankfurter’s doctrine of “judicial restraint,” giving substantial credence to the acts of the legislature, which carried the day.

Justice Hugo LaFayette Black

Feldman deftly traces the evolution of various legal doctrines through seminal decisions rendered by the Court from the late 1930’s through the mid 1950’s. We watch a Court willing to allow the internment of Japanese citizens during World War II evolve into the champion of civil rights that outlawed racial segregation in schools in Brown v. Board of Education. Feldman’s analysis is worthy of a law review article, yet his style and diction make the material accessible to the lay man.

Non-lawyers who may not enjoy legal analysis will still be interested in Feldman’s description of the clash of personalities that produced the epic decisions:

Frustration bred contempt. From allies sipping champagne to celebrate one another’s joining the Court, Black, Frankfurter, Douglas, and Jackson had formed camps and become bitter enemies. Frankfurter despised Douglas, whom he called one of the ‘two completely evil men I have ever met….’ Frankfurter called Douglas, Black, and Murphy [another justice] ‘the Axis.’ One-upping Frankfurter, Douglas called him ‘Der Fuehrer.’ The hatred between Black and Jackson ran so deep that it threatened to ruin the reputations of both men. The friendship between Frankfurter and Jackson seemed to depend more on disdain for Douglas and Black than any closer connection. Douglas and Black voted together but were not intimate friends. For them, common ground meant revulsion for Frankfurter and Jackson.”

Justice Robert Jackson

Feldman’s account of the machinations behind making the Brown opinion unanimous is particularly compelling. When the case first came before the Court, three justices (all southerners), including Chief Justice Fred Vinson, believed that the old “separate but equal” doctrine enunciated in Plessy v. Ferguson was the correct interpretation of the Constitution. Frankfurter knew that to rule segregated public facilities were unconstitutional would effect a social revolution, and so it required as strong and forceful opinion by the Court as possible. A 6-3 decision would not project the gravitas necessary to produce willing compliance, particularly in the South. After the oral argument, he persuaded a majority of the Court to defer decision and to require a re-argument the following year. This ploy gave him time to try to convert the other justices to his views.

Justice William O. Douglas

Remarkably, before the second oral argument, Vinson died of a heart attack. Frankfurter never liked Vinson, and told a former law clerk, “[T]his is the first solid piece of evidence I’ve ever had that there really is a God.” President Eisenhower then appointed Earl Warren, a consummate politician and a strong supporter of civil rights, as Chief Justice.

Even with Warren in the camp to overturn Plessy, the battle for a unanimous opinion was far from over. Frankfurter himself had to overcome his own judicial philosophy of judicial restraint. Jackson saw nothing in the constitutional text or precedent history to make segregation unconstitutional. Accordingly, he favored frank recognition that the court was making new law despite history and precedent, a position with which none of his colleagues would agree. He, however, fell ill and finally was browbeaten by Warren to join the unanimous opinion. A combination of Frankfurter’s cogent arguments and Warren’s cajoling induced the two remaining southern judges to join the rest of the court to make the opinion unanimous. The resulting opinion, although unanimous, is something of a hodge-podge of rationales. Nevertheless, it is usually considered the most important Supreme Court case of the 20th Century.

Evaluation: There is much more to this splendid book than my review can cover in a reasonably short space. I recommend it strongly for lawyer and layman alike.

Rating: 4.5/5

Published by Grand Central Publishing, 2011