September 1, 1948 – William Coleman Begins Work as the as First African-American Law Supreme Court Clerk

William Thaddeus Coleman, Jr. was born in 1920 into a Pennsylvania family that encouraged education, hard work, and social activism. He excelled in school, but always had to combat prejudice. He recalled (Annette John-Hall, “William T. Coleman, Jr.—Lawyer, Social Activist,” Philadelphia Inquirer, May 16, 2004):

I finished tops in my class at Roosevelt [Junior High School]. I made what I thought was a good speech and my teacher said, “You’ll make somebody a good chauffeur.” I won’t tell you what I told her, but I was suspended for saying it. My mother and father had to tell her, “You don’t talk to a Coleman kid that way.”

In high school, he wanted to join the all-white swim team of his Pennsylvania high school, which disbanded rather than allow a black person on the team. The day he graduated, they posted a notice that they were starting up the team again.

Coleman didn’t get discouraged. He enrolled at U. of Pennsylvania, majoring in political science and economics, graduating summa cum laude in 1941. He then went to Harvard Law School, one of only four minority students in his class, and made the Harvard Law Review.

In 1941, Coleman’s high grades (he was second in his first-year class)won him a position on  the staff of the Harvard Law Review. Coleman (second from bottom left) was only the third black man to serve on the Law Review

In 1941, Coleman’s high grades (he was second in his first-year class )won him a position on the staff of the Harvard Law Review. Coleman (second from bottom left) was only the third black man to serve on the Law Review

He interrupted his studies to enlist in the army in 1942, encountering the fierce racism of the South during basic training.

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He returned to Harvard and graduated magna cum laude in 1946. He won a clerkship to the U.S. Third Circuit Court of Appeals in 1947, and in December of that same year, a former Harvard Law School professor wrote a letter to Felix Frankfurter recommending Coleman as a Supreme Court Law Clerk. Frankfurter accepted the recommendation without even requiring an interview.

Frankfurter received letters from a number of people a number of people praising the appointment and its breaking of the racial barrier. He responded:

Mr. William T. Coleman was named as one of my law clerks for next year precisely for the same reason that others have been named in the past, namely high professional competence and character. You are kind to write me, but I do not think a man deserves any praise for doing what is right and abstaining from the wrong.”

During the October 1948 Supreme Court term, Coleman shared clerking duties with fellow Harvard graduate Elliot Richardson. Together they began spending one hour a day reading Shakespeare or poetry during their lunch breaks.

During October Term 1948, Coleman shared his clerking duties with fellow Harvard Law School graduate Elliot Richard- son (right)

During October Term 1948, Coleman shared his clerking duties with fellow Harvard Law School graduate Elliot Richard- son (right)

A Frankfurter clerkship meant becoming a lifetime member of the Frankfurter family. Coleman later recalled that “from the day we came to the day he died, Felix Frankfurter was the nearest thing to a father or a brother that I had outside of my own family.”

In a post-clerkship letter recommending Coleman, Frankfurter drew upon the words of his own hero to further praise his former clerk: “What I can say of you with great confidence is what was Justice Holmes’ ultimate praise of a man: ‘I bet on him.’ I bet on you, whatever choice you may make, and whatever the Fates may have in store for you.’”

Justice Felix Frankfurter

Justice Felix Frankfurter

Nevertheless, as Todd Peppers reported in “William Thaddeus Coleman, Jr.: Breaking the Color Barrier at the U.S. Supreme Court,” J. of Supreme Court History 10/2008, 33(3): 353-370, 364:

Armed with letters of recommendation from Justice Frankfurter, Coleman returned to his hometown of Philadelphia and quickly discovered that prospective employers were not color-blind. ‘I tried like hell to get a job in Philadelphia and no local law firm would hire me.’ Most of Philadelphia’s law firms refused to give Coleman an interview.”

Coleman finally found a job in New York City, commuting each day to and from Philadelphia. After three years, the Philadelphia firm of Dilworth Paxson accepted him at the insistence of wealthy client Walter Annenberg. Coleman remained with the firm until his 1975 appointment as Secretary of Transportation in the cabinet of President Gerald Ford. Coleman was sworn in by his long-time friend and now Associate Supreme Court Justice Thurgood Marshall. After President Ford’s defeat in the 1980 presidential election, Coleman joined the Washington office of the law firm O’Melveny & Myers.

William Coleman

William Coleman

During his career, Coleman argued nineteen cases before the Supreme Court, only occasionally taking on civil rights work. But some of that work was as a consultant to Thurgood Marshall in preparing the Supreme Court case Brown v. Board of Education.

Coleman has received a large list of awards from a wide range of organizations including the Presidential Medal of Freedom, awarded to him by President Clinton in 1995, who recalled of Coleman:

For four decades in the courtroom, the boardroom, the halls of power, Bill Coleman has put his brilliant legal intellect in service to our country. He was the first African-American accepted on the Harvard Law Review, the first to serve as a clerk on the United States Supreme Court, the first to serve in the President’s Cabinet—the second to serve in the President’s Cabinet, and the first to reach the pinnacle of the corporate bar. As Secretary of Transportation to President Ford, he helped to open the doors of opportunity to thousands of black entrepreneurs. As a corporate director, he broke the color barrier in the Nation’s executive suites. Today, as chairman of the board of the NAACP Legal Defense and Education Fund, he continues the fight.

I have known Bill Coleman for a long time. I had the honor and pleasure of being his son’s roommate for a year in law school. I think it is fair to say that the first time we saw each other, he never dreamed that I would be here and he would be there. [Laughter] But I can honestly say, if you are looking for an example of constancy, consistency, disciplined devotion to the things that make this country a great place, you have no further to look than William Coleman, Jr.”

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July 6, 1835 – Death of Chief Justice John Marshall

On this day in history, John Marshall died, two months before he would have turned eighty. Of Marshall, John Quincy Adams wrote in his diary:

He was one of the most eminent men that this country has ever produced. . . . Marshall has cemented the Union which the crafty and quixotic democracy of Jefferson had a perpetual tendency to dissolve. Jefferson hated and dreaded him. . . . Marshall, by the ascendency of his genius, by the amenity of his department and by the imperturbable command of his temper, has given a permanent and systematic character to the decisions of the Court, and settled many great constitutional questions favorably to the continuance of the Union.”

Chief Justice John Marshall

Chief Justice John Marshall

During Marshall’s tenure as Chief Justice, the Supreme Court handed down 1,180 decisions over thirty-five years, with Justice Marshall writing 549 of them. As Harlow Giles Unger noted of the output of the Court in his biography of Marshall:

Many formed the foundation of American constitutional law. They established the Supreme Court as supreme arbiter of the Constitution and American laws and the federal judiciary as the third coequal branch of the federal government with the executive and legislative branches.”

June 5, 1916 – Louis Brandeis Takes His Seat on the U.S. Supreme Court

On this day in history, one hundred years ago, Louis Brandeis, nominated to the Supreme Court by President Woodrow Wilson on January 28, 1916, finally took his seat after an unsavory political fight fueled by anti-Semitism conflated with charges of alleged “radicalism”. In fact, Brandeis’ appointment was so bitterly contested that the Senate Judiciary Committee, for the first time in its history, held a public hearing on the nomination.

Yet it was hard to make convincing arguments against him. Brandeis was indisputably brilliant, having entered Harvard Law School in 1875 at the age of 18 without a formal college degree.

Brandeis as a student ca. 1876.

Brandeis as a student ca. 1876.

Despite having developed vision problems he nevertheless received excellent marks (he achieved the highest grade point average in the history of the school, a record that stood for eight decades). Nevertheless, Brandeis almost didn’t graduate. He was still only twenty, and according to University policy, “no degree [of Bachelor of Laws] will be conferred until the candidate shall have attained the age of twenty-one years.” In the end, the Board of Trustees made a special exemption allowing Brandeis to receive his degree. He then spent an additional year at the law school doing postgraduate work.

Within a year of graduation, Brandeis accepted an offer by his Harvard classmate, Samuel D. Warren, to set up a law firm in Boston. While waiting for the law firm to gain clients, he was appointed law clerk to Horace Gray, Chief Justice of the Massachusetts Supreme Court. Brandeis was admitted to the Massachusetts bar without taking an examination, which, he later wrote to his brother, was “contrary to all principle and precedent.” He still worked for his firm, however, which became quite successful.

Samuel D. Warren, ca. 1875

Samuel D. Warren, ca. 1875

Between 1888 and 1890, Brandeis and Warren wrote three scholarly articles published in the Harvard Law Review. The third, “The Right to Privacy,” was the most influential, with legal scholar Roscoe Pound saying it accomplished “nothing less than adding a chapter to our law.” In it Brandeis enunciated the view he later echoed in the 1928 Supreme Court case of Olmstead v. United States (277 U.S. 438), in which he argued that the makers of the Constitution, as evidence of their effort “to protect Americans in their beliefs, their thoughts, their emotions and their sensations … conferred, as against the Government, the right to be let alone – – the most comprehensive of rights and the right most valued by civilized men.”

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By 1890 Brandeis was financially able to serve without pay in various public causes. Notably, in 1908, he represented the State of Oregon before the U.S. Supreme Court in Muller v. Oregon (208 U.S. 412), a landmark case defending an Oregon law establishing wages and hours for women laborers. In that case, he introduced what came to be known as the “Brandeis brief.” As the Brandeis University website dedicated to “The Louis D. Brandeis Legacy Fund for Social Justice” defines it:

[It] went far beyond legal precedent to consider the various economic and social factors which led the legislature to pass the law. Many lawyers followed the Brandeis brief and presented relevant scientific evidence and expert opinion dealing with the great social problems of the day mirrored in judicial litigation.”

After Brandeis was finally confirmed to sit on the U.S. Supreme Court in 1916, he served with distinction until February 13, 1939, when he retired, dying only two years later.

Justice Brandeis

Justice Brandeis

In celebration of the centenary of Brandeis’ nomination to the Court, the Harvard Law Library prepared an exhibit as a tribute to Brandeis’ “significant and lasting relationship with HLS.” Be sure and check out the wonderful images selected for the online version of this exhibit, here. (One of which you see below. You can view it at a higher resolution on the website.)

This draft page from Ruthenberg v. Michigan illustrates Brandeis’ process when crafting a Supreme Court opinion. Former clerk, Paul Freund explained “An opinion developed like a coral reef; it might go through dozens of revisions and accretions.” Brandeis Papers, Harvard Law School, Box 44, Folder 6

This draft page from Ruthenberg v. Michigan illustrates Brandeis’ process when crafting a Supreme Court opinion. Former clerk, Paul Freund explained “An opinion developed like a coral reef; it might go through dozens of revisions and accretions.” Brandeis Papers, Harvard Law School, Box 44, Folder 6

May 21, 1969 – Warren E. Burger Nominated As Chief Justice of the U.S. Supreme Court

On this day in history, President Richard Nixon nominated Warren Burger to be the 15th Chief Justice of the Supreme Court. Nixon was hoping to turn back the “activist tide” of the Court under Chief Justice Earl Warren. Burger was known as a Nixon supporter, a critic of Chief Justice Warren, and an advocate of a strict constructionist reading of the Constitution. Nevertheless, such a philosophy did not always coincide with conservative interests, as when Burger led the court in the unanimous decision United States v. Nixon (418 U.S. 683, 1974), holding (in the matter resulting from the Watergate scandal) that no person, not even the president of the United States, can be completely above the law, nor use executive privilege as an excuse to withhold evidence that is “demonstrably relevant in a criminal trial.”

Justice Warren E. Burger

Justice Warren E. Burger

Justice Burger retired on September 26, 1986, in part to lead the campaign to mark the 1987 bicentennial of the United States Constitution. He had served longer than any other Chief Justice appointed in the 20th century.

He did not hide from the limelight thereafter however. Most notably, during an interview by Charlayne Hunter-Gault on “The MacNeil/Lehrer NewsHour” (PBS Television Broadcast, December 16, 1991), Justice Burger was asked how he thought the Bill of Rights could be better. He responded:

If I were writing the Bill of Rights now there wouldn’t be any such thing as the Second Amendment, that a well regulated militia being necessary for the defense of the state, that people (have the) right to bear arms. This has been the subject of one of the greatest pieces of fraud – I repeat the word fraud – on the American public by special interest groups that I have ever seen in my life time.”

As legal scholar Cass Sunstein reported reported, Justice Burger further declared in a speech in 1992: ” . . . the Second Amendment doesn’t guarantee the right to have firearms at all.” In his view, the purpose of the Second Amendment was “to ensure that the ‘state armies’–‘the militia’–would be maintained for the defense of the state. “

Sunstein adds that far from making a reckless statement, “Burger meant to describe what he saw as a clear consensus within the culture of informed lawyers and judges–a conclusion that was so widely taken for granted that it seemed to him to be a fact, and not an opinion at all.”

Alas, times have changed. As law professor Mark Tushnet wrote in 2007 (Out of Range, Oxford University Press), the new dispute over the Second Amendment can be understood as part of the “culture wars” now dividing the country. The pro gun-rights movement is trying to use the imprimatur of the Constitution to bolster its position, and has achieved enormous success, even within the courts.

But the use of the Second Amendment can certainly be seen as a stretch, as Burger maintained. Sunstein writes:

. . . to explore the original understanding of the Second Amendment is to enter an altogether different nation, whose central preoccupations were not at all like our own. In the founding era, many people were fearful of a standing army, and that fear was closely entangled with their support for the right to keep and bear arms . . . as a way of protecting state militias and thus checking the national government.”

Sunstein observes that state militias no longer serve anything like their old role:

As some of the founders hoped and others feared, national defense is undertaken by a professional military, which is the equivalent of a standing army. And if the national government is really determined to oppress us, we won’t be much helped by pistols and rifles.”

“The individual right to have guns,” writes Sunstein … “is best taken as a contemporary creation and a reflection of current fears, not as a reading of the civic-centered founding debates.”

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We may hear more from Burger on the subject after 2026, when his papers, donated to the College of William and Mary, will be open to the public. In the meantime, we are assured of hearing more about the ways in which the Second Amendment “guarantees” the right to obtain the means to wreak havoc and death on one’s fellow citizens.

May 17, 1954 – The U.S. Supreme Court Decides Brown v. Board of Education

On May 17, 1954 the Supreme Court handed down a decision in Brown v. Board of Education (347 U.S. 483), declaring state laws establishing separate public schools for black and white students unconstitutional.

Even sixty years later, according to the Economic Policy Bureau, residential segregation, private school vouchers, and other methods are still employed to get around the ruling of the Courts.

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Achievement Gap Between U.S. Richest and Poorest Students Growing Dramatically

NPR is running a series of stories on the nationwide school-funding imbalance, to explain what happens when many of America’s poorest students also attend its poorest schools.

Some of the information from the reports comes from “Is School Funding Fair? A National Report Card (NRC)”, released by the Education Law Center (ELC) on March 16, 2016 which found that “in most states, public school funding remains unfair and inequitable, depriving millions of U.S. students of the opportunity for school success.” One of the more disturbing findings of the report is that “Certain regions of the country exhibit a double disadvantage – many states with low funding overall add no additional funds for concentrated student poverty. These include Alabama, Mississippi, and Florida in the Southeast, and Colorado, Arizona, and New Mexico in the Southwest.”

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As Bruce Baker, the Rutgers University Graduate School of Education Professor who developed the report’s methodology, told NPR:

You’ve got highly segregated rich and poor towns. [They] raise vastly different amounts of local revenue based on their local bases . . .”

(Perhaps needless to add, richer students can also opt out of the public school system altogether, attending expensive magnet schools that provide them with even more of an advantage for colleges and their futures. In addition, they also have ready access to educational enhancements, such as computers, robotic courses, studies abroad, and the like, that poorer districts rarely see.)

Kentucky FIRST LEGO League’s State Robotics Competition

Kentucky FIRST LEGO League’s State Robotics Competition

In San Antonio Independent School District v. Rodriguez (411 U.S. 1, 1973), plaintiffs argued that the way schools are funded violates the U.S. Constitution’s equal protection clause, which says that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” In a split 5-4 decision, the Supreme Court ruled against Rodriguez, with Justice Lewis Powell delivering the opinion of the Court, averring there is no right to equal funding in education under the U.S. Constitution:

Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that “the grave significance of education both to the individual and to our society” cannot be doubted. [n69] But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause.”

Dissenting, Justice Thurgood Marshall wrote:

The Court today decides, in effect, that a State may constitutionally vary the quality of education which it offers its children in accordance with the amount of taxable wealth located in the school districts within which they reside. The majority’s decision represents an abrupt departure from the mainstream of recent state and federal court decisions concerning the unconstitutionality of state educational financing schemes dependent upon taxable local wealth. More unfortunately, though, the   majority’s holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens. The Court does this despite the absence of any substantial justification for a scheme which arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable wealth within each district.

. . .

I must once more voice my disagreement with the Court’s rigidified approach to equal protection analysis.”

Portrait of Supreme Court Thurgood Marshall (Photo by Bachrach/Getty Images)

Portrait of Supreme Court Thurgood Marshall (Photo by Bachrach/Getty Images)

Justices Brennan, Douglas, and White also dissented.

As law professor Camille Walsh argued in her analysis of the case [Camille Walsh, “Erasing Race, Dismissing Class: San Antonio Independent School District v. Rodriguez,” 21 La Raza L.J. (2011):

The Rodriguez claimants were low-income children and families of color whose school district was dramatically unequal in every respect when compared to the local, wealthy, white school district at issue in the case. The Court treated, however, the claims of race and class discrimination that the claimants put forward as entirely independent, and ignored the plaintiffs race claim in order to focus on class alone, which the Court dismissed as a category not entitled to constitutional protection. This article argues that the outcome in Rodriguez was directly tied to legal frameworks that negated the possibility of protecting more than one constitutional category at the same time. The Court’s decision provided an economic privacy and local fiscal control rationale that solidified the separation of race and class as categories of constitutional analysis, to the detriment of future claims at the intersection of race and class remedies for segregated and unequal schools.”

In the four decades since Rodriguez, as NPR observes, dozens of lawsuits have been filed in state courts, arguing that their funding systems are either unfair, inadequate or both.

Of note, in the 2011 case Lynch, et al. v. State of Alabama, et al. Judge C Lynwood Smith, Jr. of the U.S. District Court for the Northern District of Alabama wrote an 800-page opinion, in which he “excoriated Alabama’s funding system.” Still, as reported by NPR, “he found the plaintiffs were not entitled to relief from the court,” writing in his opinion:

This request for a remedy untethered to a constitutional violation, though sincere, misunderstands the nature of the judicial power. The courts are not empowered generally to ‘make things right.’ The district court’s jurisdiction was invoked by plaintiffs to recognize and remedy the constitutional wrongs alleged to exist in Alabama’s system of higher education. [emphasis in original.]

(According to The Southern Poverty Law Center, Alabama’s overall funding level is well below average, ranking 38 out of 49, even when adjusting for regional wages, economies of scale, and other factors.)

You can read more about the NPR series here, and follow along with new reports in the coming weeks.

April 22, 1987 – The U.S. Supreme Court Decides McCleskey v. Kemp

On this day in history, The U.S. Supreme Court handed down its decision on the case McCleskey v. Kemp (481 U.S. 279), which since has been widely criticized. (It was named one of the worst modern Supreme Court decisions by many sources: see, e.g., “roundups” of worse cases here and here.) Even the author of the decision, Justice Lewis Powell, stated later that he wished he could change his vote in this case.

Warren McCleskey, a black man, was convicted of murdering a white police officer in Georgia and sentenced to death.

In a writ of habeas corpus, McCleskey argued that a statistical study by law professor David Baldus, examining over 2000 murder cases in Georgia during the 1970s, showed substantial disparities in the imposition of the death penalty depending on the victim’s race, and smaller disparities associated with the defendant’s race. [Baldus, David C.; Pulaski, Charles; Woodworth, George, “Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience,” Journal of Criminal Law and Criminology (Northwestern University) 74 (3): 661–753, 1983). Since that time, additional studies of other localities have confirmed that defendants who kill whites are more likely to be sentenced to death than those who kill blacks.] Specifically, controlling for thirty-nine nonracial variables, Baldus found that in Georgia, defendants charged with killing white victims were 4.3 times more likely to be condemned to death than defendants charged with killing black victims, and that black defendants were 1.1 times more likely to receive the death penalty than white defendants.

However, in a 5-4 decision authored by Justice Lewis F. Powell, Jr., the Court ruled against McCleskey. Justice Powell decided that the overall statistics offered insufficient proof for any particular case, writing:

The Court today holds that Warren McCleskey’s sentence was constitutionally imposed. It finds no fault in a system in which lawyers must tell their clients that race casts a large shadow on the capital sentencing process. The Court arrives at this conclusion by stating that the Baldus study cannot ‘prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey’s particular case.’ . . . Since, according to Professor Baldus, we cannot say ‘to a moral certainty’ that race influenced a decision . . . we can identify only ‘a likelihood that a particular factor entered into some decisions,’ and ‘a discrepancy that appears to correlate with race.’ This ‘likelihood’ and ‘discrepancy,’ holds the Court, is insufficient to establish a constitutional violation. (emphasis in original)”

Associate Justice Lewis F. Powell, Jr.

Associate Justice Lewis F. Powell, Jr.

Justice Powell adduced four additional reasons he believed supported his decision:

…the desire to encourage sentencing discretion, the existence of ‘statutory safeguards’ in the Georgia scheme, the fear of encouraging widespread challenges to other sentencing decisions, and the limits of the judicial role.”

Three dissents were filed in the case, by Justices Brennan, Blackmun, and Stevens. Justice William Brennan’s passionate dissent is worth quoting at some length.

Part I of Brennan’s dissent states his belief that “the death penalty is in all [emphasis added] circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments.”  

Even aside from this consideration, Brennan did not agree that the prospects of equal treatment for black defendants in Georgia were fair and balanced, as it were. He emphasized that regardless of whether McCleskey could prove racial bias, the very likelihood of it should be sufficient for an Eighth Amendment claim:

Since Furman v. Georgia, 408 U.S. 238 (1972), the Court has been concerned with the risk of the imposition of an arbitrary sentence, rather than the proven fact of one. Furman held that the death penalty may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.”

Brennan adds his own statistical analysis of the findings, declaring:

. . . The rate of capital sentencing in a white-victim case is . . . 120% greater than the rate in a black-victim case. Put another way, over half — 55% — of defendants in white-victim crimes in Georgia would not have been sentenced to die if their victims had been black. Of the more than 200 variables potentially relevant to a sentencing decision, race of the victim is a powerful explanation for variation in death sentence rates — as powerful as nonracial aggravating factors such as a prior murder conviction or acting as the principal planner of the homicide.”

But, he goes on, there is more.

Data unadjusted for the mitigating or aggravating effect of other factors show an even more pronounced disparity by race. The capital sentencing rate for all white-victim cases was almost 11 times greater than the rate for black-victim cases. Furthermore, blacks who kill whites are sentenced to death at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks. In addition, prosecutors seek the death penalty for 70% of black defendants with white victims, but for only 15% of black defendants with black victims, and only 19% of white defendants with black victims. (emphasis in original)”

He concludes on this point:

The statistical evidence in this case thus relentlessly documents the risk that McCleskey’s sentence was influenced by racial considerations.”

He adds that in the case of Georgia, “the conclusion suggested by those numbers is consonant with our understanding of history and human experience.”

He then goes on to answer Justice Powell’s other objections to finding for McCleskey, which you can read here.

Associate Justice William J. Brennan, Jr.

Associate Justice William J. Brennan, Jr.

Justices Harry Blackmun and John Paul Stevens also dissented, deviating from Brennan in that they were not willing to rule out any death penalty cases. Brennan differed from Blackmun and Stevens in their belief that guidelines about what constituted “extremely aggravated cases” would minimize the risk of discriminatory enforcement of the death penalty and that “narrowing the class of death-eligible defendants is not too high a price to pay for a death penalty system that does not discriminate on the basis of race.”

Reverberations from the majority in the McCleskey decision reached far beyond the case of Warren McCleskey, creating a burden of proof almost impossible to meet. Blume, et al. argue that there are compelling reasons to read McCleskey narrowly. [John H. Blume, Theodore Eisenberg, and Sheri Lynn Johnson, “Post-McCleskey Racial Discrimination Claims in Capital Cases,” 83 Cornell L. Rev. 1771 (1998, available online here.) Nevertheless, they observe, “most lower courts rejects post-McCleskey capital-sentencing racial discrimination claims without any individualized analysis.” (Id., at 1780—1781.) Indeed, the entire process of the criminal justice system has continued to discriminate against blacks, from arrest, to treatment by police, to juror evaluation, to rates of imprisonment, to assignment of the death penalty.

According to The New York Times:

McCleskey is the Dred Scott decision of our time,’ Anthony G. Amsterdam, a law professor at New York University, said in speech last year at Columbia. ‘It is a decision for which our children’s children will reproach our generation and abhor the legal legacy we leave them,’ said Professor Amsterdam, who worked on the McCleskey case and many other capital punishment landmarks.”

As Blume et al. conclude (Id. at 1809-1810):

Fear of labeling state officials racist, the need for prosecutorial discretion, and general reluctance to address racial claims all may fuel the doctrinal missteps in post-McCleskey county-level cases. An understanding of courts’ reluctance is not, however, a reason to condone such action. Judges, especially federal judges, enjoy constitutionally protected independence precisely because they must make unpopular and difficult decisions. In the proud modern history of the judiciary, judges’ finest hours have come by challenging discrimination rather than sheltering it. It would be ironic if they now were to afford racial discrimination its greatest shelter, through heightened burdens of proof, in cases involving life and death.”