Mixed Bag: How a Mostly Homogeneous Supreme Court has Treated African-Americans
by Shaun Terry
The question of how the Supreme Court has related to African-American politics is one best asked of history. There may be persistent trends, but there also seem to be temporal shifts toward and away from more equitable treatments of African-Americans, depending on the makeup of the Court at any given time. On one hand, it is contingent; on the other, the Court has yet to do all in its power to help to free African-Americans from historical legacies of oppression and from discriminations of various sorts. At different times, the Court has provided for African-Americans’ material demands and/or rights-based demands, while at other times, it has denied both. In order to more fully address these issues, we should inspect the history.
If we start by considering the 1856 Dred Scott v. Sandford case, we notice that, as soon as the question of African-American rights was brought before the court, it was summarily dismissed. The Dred Scott case was taken up, but the question of African-American rights was deemed immaterial. What was to be at stake was whether Scott’s owner, Sandford, had physically assaulted Scott, Scott’s wife, and Scott’s children, but the Court deemed that Scott had no legal standing in court, as Scott was not a citizen. Chief Justice Roger Taney, an Andrew Jackson appointee speaking of African-Americans, wrote the majority opinion:
[T]hey are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”
In essence, Taney asserted that the Constitution had been intended for whites and that African-Americans had never been intended to have rights protected under the Constitution, let alone citizenship. In fact, earlier in the opinion, Taney implies that African-Americans are not even “people of the United States.
The Court’s decision bears significance not only for its grotesqueness, but also for the precedent it set. Not only were African-Americans denied citizenship; the Missouri Compromise was deemed unconstitutional, as well, further complicating the matter of slavery, and further compounding the immiseration of African-Americans. This was a bold, harmful political act.
This case helps to illustrate how the Supreme Court has always had a political role. Taney was a close ally of President Andrew Jackson, a slave-owning Southerner, and he served as Jackson’s Secretary of War, Attorney General, and Treasury Secretary, before being appointed to the Court as Chief Justice. If one observes the political leanings of the Court, there is a pattern of ideological shifts that reflect the leanings of the Presidents who appointed the members of the Court. Franklin D. Roosevelt was able to form the Court more-or-less in his image, as Roosevelt served as President for longer than anyone else has been able to, while a one-term President would be unlikely to alter the ideological makeup of the Court very much. Who is President, then, becomes an important question to the Court’s ideological leanings and who the Court tends to represent in its work.
Franklin D. Roosevelt was the first President to have any African-American judge put in federal court, and Lyndon Baines Johnson nominated Thurgood Marshall, the first African-American to sit on the Supreme Court. While Ronald Reagan, a Republican and a racist, appointed the nation’s second African-American, Clarence Thomas (sorry, Dr. Williams), his record for appointing African-Americans to federal courts overall was abysmal. Only 1.9% of his appointees were African-American. To put that into context, 25% of President Obama’s appointees from his first 18 months in office were African-American. Representation on the Court and its ideological leanings can have dramatic effects on outcomes from the Court.
While the Court is said to be in place to interpret the law, cases like that of Dred Scott show that the Court can make decisions that have dramatic effects on the citizenry and how they are treated under the law. In effect, the Supreme Court can shape the law. Following the Dred Scott case, the Supreme Court would follow similar illogic for seventy years. In fact, while the Dred Scott case established lack of standing in United States court for descendants of Africans who were brought to America as slaves, the Supreme Court would further restrict African-Americans.
In Plessy v. Ferguson, the Melville Fuller Supreme Court upheld, in 1896, that a person could be made to use separate facilities on the basis of race, alone. At the time, this meant that someone with any African descendancy was forced to use facilities intended for African-Americans, even if their descendancy were more Caucasian than African. Of course, this is both illogical on various grounds and racist both in intent and in outcome. However, the Court maintained that separate facilities could be equal and were justifiable under the law. Writing for the majority, Justice Henry B. Brown states, “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” This was not the only opinion, though. There was a lone dissenter who would be vindicated in later years. Justice John Marshall wrote a blistering opinion:
The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution…
If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. …The thin disguise of ‘equal’ accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.
Again, the importance of Plessy v. Ferguson was that it established legal precedent and allowed for political—indeed, racist—concerns to trump those of constitutionality, reason, and humanity. While legal scholar Girardeau Spann asserts that the Court is destined to interpret the law in racist ways because the Constitution is essentially racist, there seems to be evidence that the Court is sometimes able to overcome this challenge.
The Court has advocated for various kinds of policies. In a class discussion, Ronald Williams described the Court’s decisions, as, at times, wildly inconsistent and “just weird.” In part, this may have to do with the fact that the court is appointed, that its members are not accountable to the public, and that they serve lifelong appointments. As previously stated, Roosevelt was nearly able to completely remake the Court. In his life, FDR appointed eight Justices. This makes for an interesting case study as the Court relates to the Constitution.
Initially during FDR’s administration, the Court found his New Deal programs to be unconstitutional. FDR threatened to add seats to the Supreme Court so that he could pack it with Justices who would be friendly to his programs, but he was eventually able to pass his agenda without having to do so. For African-Americans, this meant that, while the country’s institutions did not support all of African-Americans’ rights-based demands, material-based demands were more adequately met than they previously had been, although this comes with caveats.
New Deal programs were administered through more localized controls. In the South, this meant that poor whites were tended to before poor African-Americans. Thanks to FDR’s programs, many African-Americans came into the Democratic fold, even though their rights-based demands were still unmet, and there was still, at that time, little attempt to meet those demands. What is somewhat significant here, though, is that the Court’s position was malleable and that it contributed to different outcomes for African-Americans. Because the Constitution is open to interpretation and because contemporary understandings shift policy imperatives, the Supreme Court’s role is one that allows it to rule in wildly differing ways, depending on the makeup of the Court and the contemporary context. So while the Constitution is, indeed, racist, it is not the case that every decision by the Court has been racist.
Brown v. Board of Education pitted African-American children from Kansas, South Carolina, Virginia, and Delaware against the institutions that denied them the right to go to the only schools (as Harlan seemed to have rightly known) equal to white schools: the schools that white people in power had designed for their children to go to. Charles Hamilton Houston, with the help of future Supreme Court Justice Thurgood Marshall; Houston’s cousin and future federal judge, William Hastie; and others, led a long crusade to establish precedents that would lead to the eventual unanimous decision by the Earl Warren Supreme Court to reverse the Plessy v. Ferguson decision.
Houston once said, “A lawyer is either a social engineer or a parasite on society.” It seems clear which Houston decided to be. In 1929, he became Dean of Howard Law School, cultivating a young group of lawyers to help lead his crusade, which he fought from his post as the special counsel to the National Association for the Advancement of Colored People, starting in 1935. They won Murray v. Maryland, leading to the integration of Maryland’s schools. They won several teachers’ salary cases, as they showed that some school districts were paying more to white teachers than to their African-American teachers. In Gaines v. Missouri, Houston won in the Charles E. Hughes Supreme Court, as the Court ruled that states providing schooling to whites must provide equivalent schooling to African-Americans. In Sweatt v. Painter and McLaurin v. Oklahoma Regents, Houston further laid the groundwork for desegregation through wins in the Fred M. Vinson Supreme Court.
By establishing legal precedents in these landmark cases leading to Brown v. Board of Education, Houston forced the Court to acknowledge that separate necessarily precluded equal. They could no longer justify segregation under the framework that they had used previous to that point. In 1954, the Earl Warren Court ruled in the Brown case that the Equal Protection Clause in the 14th Amendment guaranteed the right to access to equal facilities to all people, and that race could not be a consideration for segregation. The Court would be forced in the next year, 1955, to put added pressure on schools to integrate, after schools, primarily in the South, delayed the policy.
This marked a significant victory for African-Americans and was one of many victories leading to, and taking place during, the Civil Rights Movement. But while the arc of moral progress may be long and just, that does not mean that it is, without exception, increasingly just all along the way. In fact, more recently, there is growing concern over the fact that segregation does not seem to be diminishing. Reactions to Brown v. Board of Education eventually culminated in a complex system of bussing children across cities in order to try and ensure the fairest possible treatment for historically oppressed people. That system has since been removed, and issues around educational attainment can seem impossibly intractable. An American web of institutions, culture, media representation, and power has failed to fully address problems associated with race. As a further example of the persistent inequity, despite African-Americans making up about 12% of the population, roughly 1.5% of elected officials in the US are African-American. Contemporary efforts are not all on the side of racial justice.
In 1978, the University of California Regents v. Bakke case presented interesting arguments regarding the Civil Rights Act of 1964 and the Equal Protection Clause to the 14th Amendment. Until this point, cases before the Supreme Court having to do with race generally did not assert the preposterous notion that the racial group in power could be discriminated against by the institutions that the power-laden racial group had built for its own use and its own empowerment. UC Regents v. Bakke marks an apparent point of departure. In this case, it was asserted that Bakke, a prospective medical student had been discriminated against in the admissions process to the UC-Davis Medical School. The Warren E. Burger Court held that affirmative action policies were justifiable in order to account for historical oppressions that complicated contemporary race issues. Justice Lewis F. Powell wrote the majority opinion, finding that there was not a compelling interest for treating races differently to the point of establishing quotas, especially as UC-Davis Medical School had not shown a history of racially discriminatory admissions practices. In his view, not granting access to the positions designated to minorities was discriminatory against whites. William Rehnquist concluded unequivocally that consideration of race during admissions processes was discriminatory against whites.
Since the UC Regents case, which was decided in 1978, several cases have gone back-and-forth on issues of considerations of race in educational decisions as well as racial considerations in other contexts. The Michigan cases ruled that The University of Michigan could not consider race as a factor in its admissions in one case and could in another. These cases were on the same 2003 docket. The rulings are distinct enough that they could be viewed as not contradicting, assuming that you can hold them up at just the right angle, in just the right light. In all seriousness, the distinction to draw between the rulings is narrow. In 2007, the Meredith v. Jefferson City Board of Education and Parents Involved in Community Schools v. Seattle School District cases held that the facts of the Michigan cases could not be extrapolated to the high school level and that the considerations of race for drawing school district lines were unconstitutional. In North Carolina, similar redistricting concerns have come up.
In 1993, the Supreme Court found, in Shaw v. Reno, that redistricting in North Carolina had been unjust in its attempt to create an additional majority-minority district. The Court relied on precedents in 1961’s Baker v. Carr and 1963’s Wesberry v. Sanders, which helped to establish that each voter should have access to an equal voice in elections. North Carolina’s redistricting had been the result of the Department of Justice calling to form an additional majority-minority district, as the initial districting map had packed many African-American voters into one district to lessen their ability to influence the number of officials elected by African-Americans. The Court found that the standard set by the 1977 United Jewish Organizations v. Carey case, stating that racial consideration in redistricting could be just, did not apply. In 2001, the Court found, in Easley v. Cromartie, that the same redistricting in North Carolina had been based on racial grounds, not merely on political ones, making it unjustifiable. To be clear, the districts were drawn, the DOJ ordered them redrawn, the Court found the redrawing unconstitutional, so they were redrawn again, and the Court found the re-redrawing unconstitutional.
In the 1980 case, Fullilove v. Klutznick, the Supreme Court found that Congress could set aside funds to ensure provision of goods and services from minorities in order to account for the historical legacy of oppressions, but 1989’s J. A. Croson v. City of Richmond resulted in the Supreme Court ruling to disallow the use of strict quotas in the awarding of public contracts on the local level. In 1990, the Supreme Court took on Metro Broadcasting v. FCC, finding that the FCC could, in its policies, show preference to minorities as a way of attempting to remedy past discriminations. In 1995, the Metro Broadcasting case was overruled by the Court’s decision in Adarand Constructors v. Peña: race could not be considered in the awarding of contracts on the federal level. The decision in a 1989 case, Ward’s Cove v. Antonio, contradicted the 1971 decision in Griggs, et al. v. Duke Power, in which the Supreme Court had found that standardized testing in hiring could be discriminatory against nonwhites. In the Ward’s Cove case, the Court determined that a company that hired nonwhites for some jobs and whites for other jobs was not necessarily discriminating on the basis of race and needed not provide evidence that the disparity was justified. In 1999, the decision in Ricci v. DeStefano determined that hiring could not, for the sake of avoiding racial disparity, ignore aptitude testing. Again, to summarize, the Court initially said that standardized testing could be discriminatory against nonwhites; then, the Court decided that companies did not need to prove whether or not they were discriminating; then, the Court decided that not using the scores on standardized tests could be discriminatory against whites. Weird, indeed.
The Supreme Court has played a major role in interpreting key questions essential to African-American politics. At times, the Supreme Court has been the single factor leading to greater oppression of African-Americans, while at other times, the Court has been the single factor leading to greater freedom for African-Americans.