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Justice Deferred: Race and the Supreme Court
In the first comprehensive accounting of the US Supreme Court’s race-related jurisprudence, a distinguished historian and renowned civil rights lawyer scrutinize a legacy too often blighted by racial injustice.
The Supreme Court is usually seen as protector of our it ended segregation, was a guarantor of fair trials, and safeguarded free speech and the vote. But this narrative derives mostly from a short period, from the 1930s to the early 1970s. Before then, the Court spent a century largely ignoring or suppressing basic rights, while the fifty years since 1970 have witnessed a mostly accelerating retreat from racial justice.
From the Cherokee Trail of Tears to Brown v. Board of Education to the dismantling of the Voting Rights Act, historian Orville Vernon Burton and civil rights lawyer Armand Derfner shine a powerful light on the Court’s race record―a legacy at times uplifting, but more often distressing and sometimes disgraceful. For nearly a century, the Court ensured that the nineteenth-century Reconstruction Amendments would not truly free and enfranchise African Americans. And the twenty-first century has seen a steady erosion of commitments to enforcing hard-won rights.
Justice Deferred is the first book that comprehensively charts the Court’s race jurisprudence. Addressing nearly two hundred cases involving America’s racial minorities, the authors probe the parties involved, the justices’ reasoning, and the impact of individual rulings. We learn of heroes such as Thurgood Marshall; villains, including Roger Taney; and enigmas like Oliver Wendell Holmes and Hugo Black. Much of the fragility of civil rights in America is due to the Supreme Court, but as this sweeping history also reminds us, the justices still have the power to make good on the country’s promise of equal rights for all.
The Supreme Court is usually seen as protector of our it ended segregation, was a guarantor of fair trials, and safeguarded free speech and the vote. But this narrative derives mostly from a short period, from the 1930s to the early 1970s. Before then, the Court spent a century largely ignoring or suppressing basic rights, while the fifty years since 1970 have witnessed a mostly accelerating retreat from racial justice.
From the Cherokee Trail of Tears to Brown v. Board of Education to the dismantling of the Voting Rights Act, historian Orville Vernon Burton and civil rights lawyer Armand Derfner shine a powerful light on the Court’s race record―a legacy at times uplifting, but more often distressing and sometimes disgraceful. For nearly a century, the Court ensured that the nineteenth-century Reconstruction Amendments would not truly free and enfranchise African Americans. And the twenty-first century has seen a steady erosion of commitments to enforcing hard-won rights.
Justice Deferred is the first book that comprehensively charts the Court’s race jurisprudence. Addressing nearly two hundred cases involving America’s racial minorities, the authors probe the parties involved, the justices’ reasoning, and the impact of individual rulings. We learn of heroes such as Thurgood Marshall; villains, including Roger Taney; and enigmas like Oliver Wendell Holmes and Hugo Black. Much of the fragility of civil rights in America is due to the Supreme Court, but as this sweeping history also reminds us, the justices still have the power to make good on the country’s promise of equal rights for all.
464 pages, Hardcover
Published May 31, 2021
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August 20, 2023
Excellent book on the topic of the Supreme Court's use of race in the application of the law. Had I known about this book in May, I would have assigned it as summereading for my AP Gov class.
Here are the excerpts that stood out:
Justice Deferred
p.2 Time is fundamental for understanding race in the United States. African slavery and Jim Crow prevailed for 300 years, and they have been gone for just over 50 years. If we count a generation as 25 years , then American history has consisted of twelve generations of white supremacy and barely two generations of trying , sometimes more aggressively than at other times, to overcome it.
p.3 The role that law and government action have played in spreading race discrimination and molding attitudes of race prejudice has been virtually erased from public memory by a form of national amnesia. In 1849, this amnesia afflicted a Massachusetts judge who said race prejudice “is not created by law and probably cannot be changed by law.” Today it afflicts those—including Supreme Court justices—who think all-white suburbs just happened by themselves. George Orwell, as usual, had something to say about this: “The past was erased, the erasure was forgotten, the lie became the truth.”
p.4 [What if] Would Massive Resistance in the 1950s and 1960s have been so massive if the members of the first white mob at Little Rock Central High School in 1957 had all been arrested under the federal law that made it a crime to interfere with exercise of constitutional rights—that is, if the Supreme Court had not thrown that law out in the 1870s and 1880s?
p.12 [William Lloyd Garrison] Using words from the biblical prophet Isaiah, Garrison called the Constitution “ a covenant with death and an agreement with Hell.” With these words he lit a match to the document, and as he cried “So perish all compromises with tyranny!” flames engulfed the Constitution of the United States
p.15 The Constitution contained three clauses dealing directly with slavery: the “three-fifths clause,” “slave trade clause,” and “fugitive slave clause.”
p.16 The preservation of slavery was accepted as the price of creating a Union, but some nonetheless felt misgivings and even alarm about it. One delegate looked into the future and gave a dire prophecy:” Providence punishes national sins by national calamities.”
p.57 In 1873 there were more than 1,200 civil rights prosecutions
p.59 In the next decade, 1873-1883, the Supreme Court decided six major cases that removed essential building blocks from the wall of protection that the Reconstruction Amendments and statutes had erected: in 1873, 1876 (twice), 1880, and 1883 (twice). When the cases were finished, the wall was all but gone.
p.70 By the end of the day on March 27, 1876, the Supreme Court had chosen, in both Cruikshank and Reese, to dismantle the Enforcement Act, the central law used to protect African Americans against both public corruption and mob violence. Whit wrongdoers in turn learned what they saw asa valuable lesson: they could harm and even murder African Americans with impunity, and they could use tricks to keep African Americans from voting.
p.84 Jim Crow was built on two fundamental and related supports, the twin pillars of segregation and disenfranchisement… Segregation and disenfranchisement were challenged repeatedly in court by African Americans, but both pillars and other forms of discrimination would receive the Supreme Court’s blessing, not once or twice, but in a parade of more than twenty cases over the next two decades.
p.85 Racial segregation was not the norm in the South during slavery, but with the end of slavery, former slave states began instituting segregation as a substitute system of race relations. Separation was less the goal than a mechanism for racial subordination, a caste system. Under Reconstruction, some integrated state legislatures had banned segregation, but the tide turned back toward new segregation laws in the late 1880s.
p.86 The new Mississippi Constitution began by removing all voters from the rolls and requiring them to re-register. Then the constitution erected formal barriers to registration, such as the poll tax and literacy test, that were understood to bear more heavily on African americans than on white voters.
Thus the new disenfranchising system maintained white supremacy “ by legal rather than illegal means… “The Mississippi Plan, as it came to be called, was an immediate success, reducing the number of Black registered voters from 200,000 to 8,000 in just the first two years. Soon there were entire counties with large Black populations where not a single African American was registered to vote.
p.106 The pillars of disenfranchisement and segregation were given important support by all-white law enforcement ad court systems, especially juries.
p.153 Federal prosecution of southern officials was almost unknown before 1940. The high tide of federal civil rights prosecutions of the 1870s had long since ebbed, and those had almost always been against private violence rather than against state officials. What few federal rights prosecutions occurred in the twentieth century were mostly for election violations. In 1939, however, under Attorney General (and future justice ) Frank Murphy, the Justice Department established a Civil Liberties Bureau, and beginning in 1940 that unit started paying attention to abuses by sheriffs and police officers, particularly, but not exclusively, in the South and against African American victims. Their chief tool was Section 2 of the Civil Rights Act of 1866, which made it a crime for a state or local public official—usually a law enforcement officer—to violate any person’s constitutional rights or other federal rights.
Indictments of law officers were hard to obtain and convictions were even harder, but cases involving extreme brutality resulted in some convictions. The punishment was often trivial, usually limited to one year in prison and a fine of $1000, but because no one else was holding these officers to account, this was a start.
p.186 [Little Rock Nine] The leaders of the mob, armed with bats and lead pipes, were not arrested. They could not be charged under Section 6 of the Enforcement Act of 1870 or Section 2 of the Ku Klux Act of 1871 because the Supreme Court in the 1870s and 1880s had held that the federal government could not prosecute these armed private citizens who were leading a mob, even if they committed serious mayhem or killed someone.
p.191 … the Warren Court approved a watering down of the constitutional protection against illegal searches and seizures. The Court upheld police authority to “stop and frisk” a person based on a mere “suspicion” without “probable cause” sufficient for an arrest. Perhaps unforeseen at the time, this decision has taken on monumental importance as the years have passed.
The criminal procedure decisions, largely accepted today at least regarding their core, were controversial at the time, and as the decade wore on, they stirred opposition to the Supreme Court. In a time of anxiety over urban riots and conflict over the Vietnam War, some accused the court of coddling criminals.
p.197 In that decade, from 1955 to 1965, the Supreme Court’s docket was crowded with cases involving the major weapons of the two groups. For Massive Resistance against desegregation, the weapon of choice was an attack on “outside agitators”—the NAACP and the press. The weapon of the Civil Rights Movement was peaceful protest—marches and sit-ins. In dozens of cases between the years 1955 and 1965, the US Supreme Court never once upheld a state attack on the press or the NAACP, and never once upheld a conviction of a sit-in demonstrator or civil rights marcher.
p.198 The states that practiced Jim Crow had typically wielded the legal machinery at will, and now they were not prepared to defend their methods under real scrutiny.
…The Court enforced the equal protection clause of the Fourteenth Amendment and established important constitutional principles under its due process clause as well as the free speech, free assembly, and free press guarantees of the First Amendment.
p.199 Demagogues applied pressure for resistance at the grassroots level. Membership in a reemergence of the Ku Klux Klan mounted. Hangings, shootings, drownings, and church burnings were epidemic. Local and state enforcement agents had little interest in finding the culprits—and indeed, some of these agents were the culprits. More popular among “moderates” was the Klan’s better-dressed counterpart, the White Citizens’ Councils, which used the businessmen’s pen to inflict economic damage more widespread and effective than the Klansman’s gun. Formed in 1955 in Indianola, Mississippi, to maintain segregation and suppress dissent, the organization soon had chapters across the South
p.202 Massive Resistance had several components, including a legal strategy using state laws and lawsuits and an extralegal strategy that enlisted or encouraged economic and physical harassment and violence. These all fit together. New state and local anti-integration laws and spurious libel suits against national media reporting about the South were common. Many states had special state commissions, typically with secret functions like tapping telephones and “fixing” jury verdicts.
p.209 The period of Massive Resistance in the 1950s and 1960s was a terrifying time. There was also an irony of timing: legal tools for combating Massive Resistance were both too late and too early. They were too late, because federal arrests and prosecutions might have stemmed or prevented mob violence in Little Rock, Oxford, Birmingham, and elsewhere, but that power had been removed by the nineteenth-century Supreme Court. On the other hand , they were too early, because the doctrine that laws intended to discriminate are invalid would have swept aside hundreds or even thousands of bad faith laws in the 1950s and 1960s, but that doctrine was not developed until 1976.
p.214 Before the Warren Court, southern states (and some other states) had long been accustomed, especially in race cases, to simply charging whatever crime came to mind, convicting on whatever evidence was presented, if any, and having their appellate courts rubber-stamp those convictions
p.217 These cases showed graphically how so-called private behavior was controlled by official state segregation policy, with no room for any alleged “freedom” to choose otherwise. Four other cities—Birmingham, Durham, Arlington, and Lynchburg—involved in this group of cases segregated their dining areas by local ordinance. The fifth city, New Orleans, carried out the segregation function by a proclamation of the mayor and police chief. Greenville argued that he manager might hve made the same choice to segregate on his own, so state action was not necessarily involved. The Supreme Court rejected that argument, saying the state’s criminal enforcement of racial segregation was a “palpable violation of the Fourteenth Amendment [that] cannot be saved by attempting to separate the mental urges of the discriminators.” The city’s notion that the owner or manager could choose “freely” whether or not to segregate was a fantasy. Long-standing, pervasive segregation laws, and the rigid community control created by those laws, eliminated any choice but segregation.
p.227 These cases, widely known today, are called “Section 1983” cases. Before this decision, the number of cases brought in federal court under this statute was miniscule. Cases under the section were limited to those alleging that a state law itself, such as a grandfather clause or white primary law, was itself unconstitutional. Today tens of thousands of Section 1983 cases are filed in federal court each year alleging violation of federal rights “under color of state law.”
p.256 The Supreme Court, in Milliken v. Bradley (1974) blocked this remedy [the metropolitan plan] 5-4 siding with the parents opposed to busing. The majority ruled that a violation of the Constitution was a prerequisite for imposing a remedy, and that this rule applied to each suburban school district separately. In other words, a suburban district could not be included in a desegregation plan unless that district itself had acted to create or maintain segregation. A majority of the Supreme Court now seemed to view a desegregation order less as a remedy for a condition of inequality than as a punishment to be visited only on those who had committed the actual wrong or caused the problem.
p.259 On appeal, the Burger Court, in Runyon v. McCrary(1976) , reaffirmed its 1968 ruling and held that the 1866 act barred race discrimination in private contracts just as in private property transactions. This far-reaching decision covered all types of contracts , not only school admission but also buying and selling all manner of goods and services, including the right to be served without discrimination at lunch counters and, in this case, application for day camp and nursery school.
p.265 In 1974 the Supreme Court said that a plan to integrate Detroit’s schools could not force suburban children to attend city schools. In 1995, the Court said a desegregation plan could not even encourage suburban children to attend city schools. The chief justice’s view was in line with his 1952 memo supporting Plessy v Ferguson. He further reflected this view in another part of the opinion. The Kansas City school board argued that he all-white schools in the suburbs were in part a “vestige” of segregation, that “white flight” was ultimately traceable to Missouri’s long-standing segregation laws. The chief justice rejected this view by saying that “ white flight may result from desegregation, not de jure desegregation. Of course, it is true that desegregation can be an immediate stimulus for white flight, but denying that white flight has its roots in de jure segregation is a common nostrum of pro-segregation thinking.
p.275 The era of Massive Resistance during the 1950s and 1960s gave Congress and the Supreme Court a growing awareness of government actions with a hidden racial purpose, and of other actions having a discriminatory effect, even if not accompanied by a discriminatory purpose. Congress incorporated that lesson in the Voting Rights Act of 1965 by making certain voting procedures invalid if they had either a discriminatory purpose or a discriminatory effect.
p.320 Throughout slavery and Jim Crow, “law enforcement” and the “criminal law process” were often means of controlling and even terrorizing African Americans, particularly in the South. After a twentieth century in which the Supreme Court led the way to moderating the worst of the excesses, the nation faced a twenty-first-century version of law enforcement and a criminal process that has certain protections. And yet the protections are uneven, and the new century has also been one of mass incarceration.
p.327 The past fifty years have witnessed an explosion in the prison population, especially concentrated among African Americans and other racial minorities. There were about 200,000 people in state ad federal prison in 1970 , a number that had been relatively constant over the previous two decades. Beginning in 1970 and accelerating after 1980, however, the number began to climb at a dizzying rate, until it reached approximately 1.6 million in 2010, before levelling off somewhat
Many factors played into this rush to imprison, but a useful place to start is the law enforcement push of the late 1960s, including the Omnibus Crime Control and Safe Streets Act of 1968 and the “law and order” campaign of that same year, which helped put Richard Nixon in the White House
p.328 [Terry v Ohio (1968)] These “Terry stops” have overwhelmingly targeted African Americans and their neighborhoods. Since the 1980s the Supreme Court has upheld more and more intrusive uses of the Terry stop.. Thus, the Warren Court unlocked the door, and subsequent Supreme Court decisions have pushed it wide open.
Here are the excerpts that stood out:
Justice Deferred
p.2 Time is fundamental for understanding race in the United States. African slavery and Jim Crow prevailed for 300 years, and they have been gone for just over 50 years. If we count a generation as 25 years , then American history has consisted of twelve generations of white supremacy and barely two generations of trying , sometimes more aggressively than at other times, to overcome it.
p.3 The role that law and government action have played in spreading race discrimination and molding attitudes of race prejudice has been virtually erased from public memory by a form of national amnesia. In 1849, this amnesia afflicted a Massachusetts judge who said race prejudice “is not created by law and probably cannot be changed by law.” Today it afflicts those—including Supreme Court justices—who think all-white suburbs just happened by themselves. George Orwell, as usual, had something to say about this: “The past was erased, the erasure was forgotten, the lie became the truth.”
p.4 [What if] Would Massive Resistance in the 1950s and 1960s have been so massive if the members of the first white mob at Little Rock Central High School in 1957 had all been arrested under the federal law that made it a crime to interfere with exercise of constitutional rights—that is, if the Supreme Court had not thrown that law out in the 1870s and 1880s?
p.12 [William Lloyd Garrison] Using words from the biblical prophet Isaiah, Garrison called the Constitution “ a covenant with death and an agreement with Hell.” With these words he lit a match to the document, and as he cried “So perish all compromises with tyranny!” flames engulfed the Constitution of the United States
p.15 The Constitution contained three clauses dealing directly with slavery: the “three-fifths clause,” “slave trade clause,” and “fugitive slave clause.”
p.16 The preservation of slavery was accepted as the price of creating a Union, but some nonetheless felt misgivings and even alarm about it. One delegate looked into the future and gave a dire prophecy:” Providence punishes national sins by national calamities.”
p.57 In 1873 there were more than 1,200 civil rights prosecutions
p.59 In the next decade, 1873-1883, the Supreme Court decided six major cases that removed essential building blocks from the wall of protection that the Reconstruction Amendments and statutes had erected: in 1873, 1876 (twice), 1880, and 1883 (twice). When the cases were finished, the wall was all but gone.
p.70 By the end of the day on March 27, 1876, the Supreme Court had chosen, in both Cruikshank and Reese, to dismantle the Enforcement Act, the central law used to protect African Americans against both public corruption and mob violence. Whit wrongdoers in turn learned what they saw asa valuable lesson: they could harm and even murder African Americans with impunity, and they could use tricks to keep African Americans from voting.
p.84 Jim Crow was built on two fundamental and related supports, the twin pillars of segregation and disenfranchisement… Segregation and disenfranchisement were challenged repeatedly in court by African Americans, but both pillars and other forms of discrimination would receive the Supreme Court’s blessing, not once or twice, but in a parade of more than twenty cases over the next two decades.
p.85 Racial segregation was not the norm in the South during slavery, but with the end of slavery, former slave states began instituting segregation as a substitute system of race relations. Separation was less the goal than a mechanism for racial subordination, a caste system. Under Reconstruction, some integrated state legislatures had banned segregation, but the tide turned back toward new segregation laws in the late 1880s.
p.86 The new Mississippi Constitution began by removing all voters from the rolls and requiring them to re-register. Then the constitution erected formal barriers to registration, such as the poll tax and literacy test, that were understood to bear more heavily on African americans than on white voters.
Thus the new disenfranchising system maintained white supremacy “ by legal rather than illegal means… “The Mississippi Plan, as it came to be called, was an immediate success, reducing the number of Black registered voters from 200,000 to 8,000 in just the first two years. Soon there were entire counties with large Black populations where not a single African American was registered to vote.
p.106 The pillars of disenfranchisement and segregation were given important support by all-white law enforcement ad court systems, especially juries.
p.153 Federal prosecution of southern officials was almost unknown before 1940. The high tide of federal civil rights prosecutions of the 1870s had long since ebbed, and those had almost always been against private violence rather than against state officials. What few federal rights prosecutions occurred in the twentieth century were mostly for election violations. In 1939, however, under Attorney General (and future justice ) Frank Murphy, the Justice Department established a Civil Liberties Bureau, and beginning in 1940 that unit started paying attention to abuses by sheriffs and police officers, particularly, but not exclusively, in the South and against African American victims. Their chief tool was Section 2 of the Civil Rights Act of 1866, which made it a crime for a state or local public official—usually a law enforcement officer—to violate any person’s constitutional rights or other federal rights.
Indictments of law officers were hard to obtain and convictions were even harder, but cases involving extreme brutality resulted in some convictions. The punishment was often trivial, usually limited to one year in prison and a fine of $1000, but because no one else was holding these officers to account, this was a start.
p.186 [Little Rock Nine] The leaders of the mob, armed with bats and lead pipes, were not arrested. They could not be charged under Section 6 of the Enforcement Act of 1870 or Section 2 of the Ku Klux Act of 1871 because the Supreme Court in the 1870s and 1880s had held that the federal government could not prosecute these armed private citizens who were leading a mob, even if they committed serious mayhem or killed someone.
p.191 … the Warren Court approved a watering down of the constitutional protection against illegal searches and seizures. The Court upheld police authority to “stop and frisk” a person based on a mere “suspicion” without “probable cause” sufficient for an arrest. Perhaps unforeseen at the time, this decision has taken on monumental importance as the years have passed.
The criminal procedure decisions, largely accepted today at least regarding their core, were controversial at the time, and as the decade wore on, they stirred opposition to the Supreme Court. In a time of anxiety over urban riots and conflict over the Vietnam War, some accused the court of coddling criminals.
p.197 In that decade, from 1955 to 1965, the Supreme Court’s docket was crowded with cases involving the major weapons of the two groups. For Massive Resistance against desegregation, the weapon of choice was an attack on “outside agitators”—the NAACP and the press. The weapon of the Civil Rights Movement was peaceful protest—marches and sit-ins. In dozens of cases between the years 1955 and 1965, the US Supreme Court never once upheld a state attack on the press or the NAACP, and never once upheld a conviction of a sit-in demonstrator or civil rights marcher.
p.198 The states that practiced Jim Crow had typically wielded the legal machinery at will, and now they were not prepared to defend their methods under real scrutiny.
…The Court enforced the equal protection clause of the Fourteenth Amendment and established important constitutional principles under its due process clause as well as the free speech, free assembly, and free press guarantees of the First Amendment.
p.199 Demagogues applied pressure for resistance at the grassroots level. Membership in a reemergence of the Ku Klux Klan mounted. Hangings, shootings, drownings, and church burnings were epidemic. Local and state enforcement agents had little interest in finding the culprits—and indeed, some of these agents were the culprits. More popular among “moderates” was the Klan’s better-dressed counterpart, the White Citizens’ Councils, which used the businessmen’s pen to inflict economic damage more widespread and effective than the Klansman’s gun. Formed in 1955 in Indianola, Mississippi, to maintain segregation and suppress dissent, the organization soon had chapters across the South
p.202 Massive Resistance had several components, including a legal strategy using state laws and lawsuits and an extralegal strategy that enlisted or encouraged economic and physical harassment and violence. These all fit together. New state and local anti-integration laws and spurious libel suits against national media reporting about the South were common. Many states had special state commissions, typically with secret functions like tapping telephones and “fixing” jury verdicts.
p.209 The period of Massive Resistance in the 1950s and 1960s was a terrifying time. There was also an irony of timing: legal tools for combating Massive Resistance were both too late and too early. They were too late, because federal arrests and prosecutions might have stemmed or prevented mob violence in Little Rock, Oxford, Birmingham, and elsewhere, but that power had been removed by the nineteenth-century Supreme Court. On the other hand , they were too early, because the doctrine that laws intended to discriminate are invalid would have swept aside hundreds or even thousands of bad faith laws in the 1950s and 1960s, but that doctrine was not developed until 1976.
p.214 Before the Warren Court, southern states (and some other states) had long been accustomed, especially in race cases, to simply charging whatever crime came to mind, convicting on whatever evidence was presented, if any, and having their appellate courts rubber-stamp those convictions
p.217 These cases showed graphically how so-called private behavior was controlled by official state segregation policy, with no room for any alleged “freedom” to choose otherwise. Four other cities—Birmingham, Durham, Arlington, and Lynchburg—involved in this group of cases segregated their dining areas by local ordinance. The fifth city, New Orleans, carried out the segregation function by a proclamation of the mayor and police chief. Greenville argued that he manager might hve made the same choice to segregate on his own, so state action was not necessarily involved. The Supreme Court rejected that argument, saying the state’s criminal enforcement of racial segregation was a “palpable violation of the Fourteenth Amendment [that] cannot be saved by attempting to separate the mental urges of the discriminators.” The city’s notion that the owner or manager could choose “freely” whether or not to segregate was a fantasy. Long-standing, pervasive segregation laws, and the rigid community control created by those laws, eliminated any choice but segregation.
p.227 These cases, widely known today, are called “Section 1983” cases. Before this decision, the number of cases brought in federal court under this statute was miniscule. Cases under the section were limited to those alleging that a state law itself, such as a grandfather clause or white primary law, was itself unconstitutional. Today tens of thousands of Section 1983 cases are filed in federal court each year alleging violation of federal rights “under color of state law.”
p.256 The Supreme Court, in Milliken v. Bradley (1974) blocked this remedy [the metropolitan plan] 5-4 siding with the parents opposed to busing. The majority ruled that a violation of the Constitution was a prerequisite for imposing a remedy, and that this rule applied to each suburban school district separately. In other words, a suburban district could not be included in a desegregation plan unless that district itself had acted to create or maintain segregation. A majority of the Supreme Court now seemed to view a desegregation order less as a remedy for a condition of inequality than as a punishment to be visited only on those who had committed the actual wrong or caused the problem.
p.259 On appeal, the Burger Court, in Runyon v. McCrary(1976) , reaffirmed its 1968 ruling and held that the 1866 act barred race discrimination in private contracts just as in private property transactions. This far-reaching decision covered all types of contracts , not only school admission but also buying and selling all manner of goods and services, including the right to be served without discrimination at lunch counters and, in this case, application for day camp and nursery school.
p.265 In 1974 the Supreme Court said that a plan to integrate Detroit’s schools could not force suburban children to attend city schools. In 1995, the Court said a desegregation plan could not even encourage suburban children to attend city schools. The chief justice’s view was in line with his 1952 memo supporting Plessy v Ferguson. He further reflected this view in another part of the opinion. The Kansas City school board argued that he all-white schools in the suburbs were in part a “vestige” of segregation, that “white flight” was ultimately traceable to Missouri’s long-standing segregation laws. The chief justice rejected this view by saying that “ white flight may result from desegregation, not de jure desegregation. Of course, it is true that desegregation can be an immediate stimulus for white flight, but denying that white flight has its roots in de jure segregation is a common nostrum of pro-segregation thinking.
p.275 The era of Massive Resistance during the 1950s and 1960s gave Congress and the Supreme Court a growing awareness of government actions with a hidden racial purpose, and of other actions having a discriminatory effect, even if not accompanied by a discriminatory purpose. Congress incorporated that lesson in the Voting Rights Act of 1965 by making certain voting procedures invalid if they had either a discriminatory purpose or a discriminatory effect.
p.320 Throughout slavery and Jim Crow, “law enforcement” and the “criminal law process” were often means of controlling and even terrorizing African Americans, particularly in the South. After a twentieth century in which the Supreme Court led the way to moderating the worst of the excesses, the nation faced a twenty-first-century version of law enforcement and a criminal process that has certain protections. And yet the protections are uneven, and the new century has also been one of mass incarceration.
p.327 The past fifty years have witnessed an explosion in the prison population, especially concentrated among African Americans and other racial minorities. There were about 200,000 people in state ad federal prison in 1970 , a number that had been relatively constant over the previous two decades. Beginning in 1970 and accelerating after 1980, however, the number began to climb at a dizzying rate, until it reached approximately 1.6 million in 2010, before levelling off somewhat
Many factors played into this rush to imprison, but a useful place to start is the law enforcement push of the late 1960s, including the Omnibus Crime Control and Safe Streets Act of 1968 and the “law and order” campaign of that same year, which helped put Richard Nixon in the White House
p.328 [Terry v Ohio (1968)] These “Terry stops” have overwhelmingly targeted African Americans and their neighborhoods. Since the 1980s the Supreme Court has upheld more and more intrusive uses of the Terry stop.. Thus, the Warren Court unlocked the door, and subsequent Supreme Court decisions have pushed it wide open.
August 9, 2022
Anyone concerned about the actions of the US Supreme Court over the last several years, particularly the recent overturning of Roe V Wade, should read this book. Burton and Derfner, two eminent legal scholars, have written a thorough and easily readable review of the Court's decision regarding race and equity since the Civil War. Their history follows the Court's decisions almost case by case in a way that avoids "legalese" in plain and clear language.
Martin Luther King said, “the arc of the moral universe is long, but it bends toward justice.” This book shows difficult that "bending" is. More importantly, the authors disabuse the reader of the idea that the ultimate arbiter of justice is the Supreme Court. Rather, by pointing out how often the Court has regressed from the ideals and goals of the 13th, 14th, and 15th amendments as well as the numerous Civil Rights and Voting Rights act that have been passed over the years, the authors make clear that the assurance of justice for all lies in the hands of "we, the people". Through the representatives, we elect at the Federal, state, and local levels we direct the moral compass of the United States.
"Justice Deferred" puts the Supreme Court not on a pedestal but within the context of our three branches of government. The justices are clearly shown as human beings with all the prejudices and propensity for error of anyone else. And, while they have a significant say regarding the security of our rights and freedoms, they can be - and often have been - wrong in their interpretations of the Constitution and the law, particularly regarding racial discrimination. Even when supposedly adhering to the concepts of "textualism" and "originalism".
The single greatest lesson I derived from this excellent book is this: Voting is a profound responsibility. My vote cannot simply be based on my economic circumstances of the moment. Voting requires critical thought and inquiry. Every politician has an agenda that may be obscured by fatuous words and empty phrases designed more to elicit emotions than critical thought.
Voting has consequences. While the consequences of our votes for legislators and the President can have relatively short-term consequences lasting, perhaps, several years, Supreme Court justices have lifetime tenure, and the impact of their decisions can endure for decades. Unless... we use our votes to guide, direct, and change the other two branches of government.
Martin Luther King said, “the arc of the moral universe is long, but it bends toward justice.” This book shows difficult that "bending" is. More importantly, the authors disabuse the reader of the idea that the ultimate arbiter of justice is the Supreme Court. Rather, by pointing out how often the Court has regressed from the ideals and goals of the 13th, 14th, and 15th amendments as well as the numerous Civil Rights and Voting Rights act that have been passed over the years, the authors make clear that the assurance of justice for all lies in the hands of "we, the people". Through the representatives, we elect at the Federal, state, and local levels we direct the moral compass of the United States.
"Justice Deferred" puts the Supreme Court not on a pedestal but within the context of our three branches of government. The justices are clearly shown as human beings with all the prejudices and propensity for error of anyone else. And, while they have a significant say regarding the security of our rights and freedoms, they can be - and often have been - wrong in their interpretations of the Constitution and the law, particularly regarding racial discrimination. Even when supposedly adhering to the concepts of "textualism" and "originalism".
The single greatest lesson I derived from this excellent book is this: Voting is a profound responsibility. My vote cannot simply be based on my economic circumstances of the moment. Voting requires critical thought and inquiry. Every politician has an agenda that may be obscured by fatuous words and empty phrases designed more to elicit emotions than critical thought.
Voting has consequences. While the consequences of our votes for legislators and the President can have relatively short-term consequences lasting, perhaps, several years, Supreme Court justices have lifetime tenure, and the impact of their decisions can endure for decades. Unless... we use our votes to guide, direct, and change the other two branches of government.
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August 16, 2023Orville Vernon Burton
ΦBK, Furman University, 1986
Author
From the publisher: In the first comprehensive accounting of the US Supreme Court’s race-related jurisprudence, a distinguished historian and renowned civil rights lawyer scrutinize a legacy too often blighted by racial injustice.
The Supreme Court is usually seen as protector of our it ended segregation, was a guarantor of fair trials, and safeguarded free speech and the vote. But this narrative derives mostly from a short period, from the 1930s to the early 1970s. Before then, the Court spent a century largely ignoring or suppressing basic rights, while the fifty years since 1970 have witnessed a mostly accelerating retreat from racial justice.
From the Cherokee Trail of Tears to Brown v. Board of Education to the dismantling of the Voting Rights Act, historian Orville Vernon Burton and civil rights lawyer Armand Derfner shine a powerful light on the Court’s race record―a legacy at times uplifting, but more often distressing and sometimes disgraceful. For nearly a century, the Court ensured that the nineteenth-century Reconstruction Amendments would not truly free and enfranchise African Americans. And the twenty-first century has seen a steady erosion of commitments to enforcing hard-won rights.
Justice Deferred is the first book that comprehensively charts the Court’s race jurisprudence. Addressing nearly two hundred cases involving America’s racial minorities, the authors probe the parties involved, the justices’ reasoning, and the impact of individual rulings. We learn of heroes such as Thurgood Marshall; villains, including Roger Taney; and enigmas like Oliver Wendell Holmes and Hugo Black. Much of the fragility of civil rights in America is due to the Supreme Court, but as this sweeping history also reminds us, the justices still have the power to make good on the country’s promise of equal rights for all.
ΦBK, Furman University, 1986
Author
From the publisher: In the first comprehensive accounting of the US Supreme Court’s race-related jurisprudence, a distinguished historian and renowned civil rights lawyer scrutinize a legacy too often blighted by racial injustice.
The Supreme Court is usually seen as protector of our it ended segregation, was a guarantor of fair trials, and safeguarded free speech and the vote. But this narrative derives mostly from a short period, from the 1930s to the early 1970s. Before then, the Court spent a century largely ignoring or suppressing basic rights, while the fifty years since 1970 have witnessed a mostly accelerating retreat from racial justice.
From the Cherokee Trail of Tears to Brown v. Board of Education to the dismantling of the Voting Rights Act, historian Orville Vernon Burton and civil rights lawyer Armand Derfner shine a powerful light on the Court’s race record―a legacy at times uplifting, but more often distressing and sometimes disgraceful. For nearly a century, the Court ensured that the nineteenth-century Reconstruction Amendments would not truly free and enfranchise African Americans. And the twenty-first century has seen a steady erosion of commitments to enforcing hard-won rights.
Justice Deferred is the first book that comprehensively charts the Court’s race jurisprudence. Addressing nearly two hundred cases involving America’s racial minorities, the authors probe the parties involved, the justices’ reasoning, and the impact of individual rulings. We learn of heroes such as Thurgood Marshall; villains, including Roger Taney; and enigmas like Oliver Wendell Holmes and Hugo Black. Much of the fragility of civil rights in America is due to the Supreme Court, but as this sweeping history also reminds us, the justices still have the power to make good on the country’s promise of equal rights for all.
January 8, 2023
This book is indispensable for studying the integral role of the U.S. Supreme Court shaping how we discuss all issues permeating race in the United States since it’s founding. It should be accessible and appreciable for non-lawyers and non-law students, but for those in or entering the profession, it comes all the more recommended. It should serve as an excellent accompaniment for those studying other major areas
of study, such as U.S. Urban History, U.S. Labor History, and history of U.S. Social Movements.
I am immensely grateful to have been a student of Armand Derfner in law school over a decade ago, and it was an exciting privilege to pick up and read this book.
of study, such as U.S. Urban History, U.S. Labor History, and history of U.S. Social Movements.
I am immensely grateful to have been a student of Armand Derfner in law school over a decade ago, and it was an exciting privilege to pick up and read this book.
March 14, 2022
The monstrosity of Governmental bureaucrats: so the Government that enslaved the Blacks, the Government that gave laws to hunt down runaway slaves, the Government that segregated, the Government that sends the Black to fight the White man's wars, that is the sole god to which the Blacks should bring their body and souls and sacrifice in hopes of eternal bliss in an improbable distant future.
November 1, 2021
I learned a lot. My only complaint is that this book gets a little disorganized and quick at the end - wish there had been more about criminal justice, less about property covenants and 1983 suits. The audiobook narrator is absolutely dreadful - avoid the audiobook and read the real thing.
August 16, 2021
This book delivered great insight into the Supreme Courts decisions on race for the entire history of the USA.
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