brown v. board of education

Haley Barbour's Whitewash of History

Mississippi governor and potential presidential candidate Haley Barbour is now trying to backtrack his previous support for the racist White Citizens Councils that existed in the state when he was young.

In a recent interview with the Weekly Standard, he made his feelings quite clear:

You heard of the Citizens Councils? Up north they think it was like the KKK. Where I come from it was an organization of town leaders. In Yazoo City they passed a resolution that said anybody who started a chapter of the Klan would get their ass run out of town. If you had a job, you'd lose it. If you had a store, they'd see nobody shopped there. We didn't have a problem with the Klan in Yazoo City.

Since not everyone in America is wholly ignorant of recent history, Barbour is being forced to backpedal, according to Talking Points Memo. Among other things, he now says:

My point was my town rejected the Ku Klux Klan, but nobody should construe that to mean I think the town leadership were saints, either.

Perhaps we are meant to think that the formation of the White Citizens Councils in the 1950s represented a principled rejection of the Klan. However, neither the timing nor the motivation rings true. As People For the American Way said in a 2003 report:

[I]t is worth noting that by 1967, "even the white establishment of Mississippi had begun to decide that Klan violence was bad for business." Clarence Page, "Fight Over Judges Replays Our Bitter History," Chicago Tribune (Feb. 13, 2002) (citing William Taylor, who at the time was Staff Director for the U.S. Civil Rights Commission).

Barbour’s desperate and unconvincing backtracking should not be the end of the story, because it is simply not credible that he was unaware of what the White Citizens Councils really were ... as if their name wasn’t already a giveaway.

While Barbour today likens them to just another "organization of town leaders," the Mississippi White Citizens Councils show up in contemporaneous federal court cases as anything but a Rotary Club.

For instance, in 1964, a federal district court noted the then-recent formation of the Mississippi White Citizens Councils, including its first priority, in United States v. Mississippi:

In 1954, after the Supreme Court had declared state operation of racially segregated schools unconstitutional, white citizens councils -- not parties to this action -- were formed in Mississippi. The purpose of these organizations was the maintenance of racial segregation and white supremacy in Mississippi. The first statewide project undertaken by these organizations was the attempt to induce the white voters of Mississippi to adopt the proposed amendment to Section 244 of the Mississippi Constitution of 1890.

They succeeded, thereby introducing the literacy and civics tests that government officials subsequently used to keep African Americans disenfranchised.

Four years later, in 1968, their racist mission and funding were said to be common knowledge by the United States Court of Appeals for the Second Circuit in Adickes v. S. H. Kress & Co:

It appears to be common knowledge that, in addition to its own activities promoting segregation, the Mississippi State Sovereignty Commission, an agency created in 1956 and financed by state tax revenues, used a part of its funds to finance some of the activities of various groups, including the White Citizens Council, which promote adherence to the ancient custom of proscribing the mixing of the races in places of public assembly; and that these groups, especially the White Citizens Council, use economic and social power to pressure those who might attempt to disregard custom into adhering to custom. See, generally, J. Silver, Mississippi: The Closed Society, 8, 32, 39-40, 42, 43, 65, 79, 94, 97, 110, 133, 151, 217 (1964).

People For the American Way discussed this key funder of the White Citizens Councils in a 2002 report:

The Sovereignty Commission, a state-funded agency, was created not long after the decision in Brown v. Board of Education in order to resist desegregation, and was empowered to act as necessary to protect the "sovereignty" of the state of Mississippi from the federal government. The Commission infiltrated and spied on civil rights and labor organizations and reported on their activities. It compiled dossiers on civil rights activists and used the information to obstruct their activities. The Commission existed until 1977, when the state legislature voted to abolish it and to seal its records for 50 years.

The White Citizens Councils were a dark stain on the history of our nation. No responsible officeholder - or office seeker - can think otherwise. Had Governor Barbour stated that he did not recognize that at the time because he was a product of the environment he grew up in, it might be believable. But his defense of the White Citizens Council coupled with his unconvincing backpedaling suggests that he still doesn’t understand how repugnant the South’s Jim Crow system really was.

PFAW

Americans Still Oppose Court’s Citizens United Decision

Nearly ten months since the Supreme Court drastically expanded the ability of corporations to influence the political process, the public is still greatly troubled by the Court’s ruling in Citizens United. The majority Americans do not buy the absurd arguments of Congressional Republicans that Citizens United was as significant a step forward as the Court’s landmark decision in Brown v. Board of Education, as most people believe that corporations should not be allowed to spend unlimited sums from their general treasuries to fund political efforts. A Hart Research poll conducted on behalf of People For the American Way found that 77% of Americans want Citizens United to be overturned, and that corporations already have too much political power.

A recent “Constitutional Attitudes Survey” by Harvard and Columbia University professors found that while self-described liberals and conservatives all found Court decisions they agree with, Citizens United stands out as the most unpopular among all respondents:

One notable decision that stuck in respondents' respective craw, however, was Citizens United v. Federal Election Commission, the January 2010 opinion that struck down a federal law prohibiting corporations from airing advertisements endorsing a political candidate.

Fifty-eight percent of survey respondents disagreed with the statement, "Corporations ought to be able to spend their profits on TV advertisements urging voters to vote for or against candidates." Only 40 percent agreed with the statement.

Additionally, an overwhelming 85 percent of respondents answered yes to the question, "Should corporations be required to get approval from their shareholders for expenditures related to political campaigns?" Indeed, Persily told the Spokane, Washington-based Spokesman Review that the Citizens United opinion is "very out of step with public opinion."

The survey's results are consistent with those of a Washington Post-ABC News poll taken in February, shortly after the case was decided. A full 80 percent of respondents in that poll disagreed with the court's holding, and 65 percent labeled themselves "strongly" opposed. Surprisingly, that poll found that views of the decision did not split along party lines -- fully 76 percent of Republicans and 81 percent of independents, along with 85 percent of Democrats, disagreed with the decision.
PFAW

Julian Bond: In the Kagan Hearings, Echoes of the Past

Last month, Republican senators turned to a surprising strategy in their questioning of Supreme Court nominee (and now Supreme Court Justice) Elena Kagan. They attempted to smear Kagan by connecting her with a figure who most of us don’t see as a liability—the revered civil rights leader Justice Thurgood Marshall. The attacks Senators Charles Grassley, Jon Kyl, and Jeff Sessions levied at Marshall rang a bell for former NAACP member and People For board member Julian Bond. Bond writes in today’s Des Moines Register:

These attacks didn't surprise me because they're completely consistent with a party locked in the past, echoing the anti-civil rights message of those who opposed Justice Marshall's own confirmation in 1967.

Grassley, Sessions and their fellow Republicans roasted Solicitor General Kagan with the same attacks used against Marshall four decades earlier. Then, the late Sen. Sam Ervin of North Carolina complained about the likelihood that Marshall would be "a judicial activist," which he defined as someone "unable to exercise the self-restraint which is inherent in the judicial process when it is properly understood and applied, and who is willing to add to the Constitution things that are not in it and to subtract from the Constitution things which are in it."

When Ervin spoke of adding rights to the Constitution, there was no doubt that he was referring to the court's ruling in Brown v. Board of Education, which he had fervently opposed. Ervin went on to join with 10 other southern Senators in voting against Marshall's confirmation.

Faced with the inevitable backlash for their attacks, today’s senators have tried to equivocate by saying they have no problem with Justice Marshall, just with his “judicial philosophy.” As Bond makes clear, that’s not a new—or convincing--argument.

For a refresher, take a look at the compilation of Marshall attacks Talking Points Memo put together after the first day of the Kagan hearings:
 

PFAW

GOP’s Citizens United Hypocrisy

As we witness the growing influx of corporate spending in elections from Kentucky to Minnesota as a result of the Citizens United ruling, campaigns across the country are bracing for a barrage of corporate expenditures. Senate Republicans claim that by refusing to allow the DISCLOSE Act to come up for a vote, they are defending free speech rights established by the Court. But Norman Ornstein of the American Enterprise Institute criticizes the Republicans’ dangerously selective view of the Citizens United decision. While the 5-4 decision grants for-profit corporations the same free speech rights as individuals, the Court also ruled 8-1 to affirm the government’s right to enact rigorous campaign disclosure laws:

Senate Minority Leader Mitch McConnell, who holds the undisputed twin titles of No. 1 campaign finance anti-reformer and No. 1 hypocrite, once said he didn't understand why a little disclosure is better than a lot of disclosure. Now the Kentucky Republican is leading his party and outside activists in spurning the clear, 8-1 mandate of the Roberts Supreme Court in the Citizens United decision to encourage robust disclosure, as they call the disclosure they once championed a horrendous burden and even an unconstitutional blockage of free speech.

Even though Senate Republicans defend Citizens United, going so far as to compare it to Brown v. Board of Education, they appear to dismiss the Supreme Court’s approval of disclosure requirements to prevent secretive and misleading campaign practices by corporations. Like candidates running for office, CEOs of corporations should appear in their advertisements and go on record with their political expenditures, and publicly report money used for political purposes. As constitutional law expert Lawrence Tribe writes:

[F]ederal legislation should, at a minimum, build on the disclosure and disclaimer requirements that the Court upheld by an 8-1 vote in Citizens United, requirements specifying that electioneering communications funded by anyone other than the candidate must disclose who is “responsible for the content of this advertising” and must display on screen “in a clearly readable manner” for at least four seconds the name and address or website of whoever funded the communication.


 

 

PFAW

Epstein Echoes Sessions: “Massive Resistance” to Citizens United

Today I went back to the Heritage Foundation for their annual “Scholars and Scribes” panel reviewing the recent and upcoming activities of the Supreme Court. There was some discussion of judicial activism, but most of the panelists seemed to have finally given up on the claim that conservative Justices have acted as neutral “umpires” in the past year.

What is surprising is that, now that the Court’s decision in Citizens United ruined the “judicial activism” mantra for the Right, a new tactic has apparently taken hold. During a question and answer session, conservative legal scholar Richard Epstein echoed Senator Jeff Sessions in comparing the Citizens United decision to, of all things, Brown v. Board of Education. His take was slightly different and, if possible, even more unhinged from reality. Those of us who oppose and are working to overturn the Citizens United ruling, Epstein said, “look a little bit like the same kind of massive resistance” engendered by Brown v. Board.

To compare the 93% of Americans who think that there should be limits on corporate political spending to the recalcitrant racists who tried to stop the desegregation of public schools is absurd and offensive. If conservatives are trying to paint corporations as victims akin to those who have suffered from institutionalized racism, they’re going to be fighting an uphill battle.

PFAW

Thurgood Marshall Roundup

We were far from the only ones noting the surprising volume of GOP attacks on Justice Thurgood Marshall on Monday. Talking Points Memo counted the number of references to the illustrious Justice on the opening day of Kagan’s hearings:

In an example of how much the GOP focused on Marshall, his name came up 35 times. President Obama's name was mentioned just 14 times today.

Harpers Magazine shared my confusion about what might have motivated Republican Senators to engage in these attacks:

So what made Marshall the image of an “activist judge”? Was it his role in Brown v. Board of Education, the decision that put an end to the lie of “separate but equal” education across the American South, forcing desegregation in public education? Or perhaps it was the fact that he won nearly all of his Supreme Court cases, most of them on behalf of the NAACP, and all of them testing the official refuges of bigotry and racism?

The attacks were led, predictably, by neoconfederate senator Jeff Sessions of Alabama, the Republican ranking member and the Theodore Bilbo of his generation, who snarled that Kagan’s affection for her former boss “tells us much about the nominee”—a comment clearly intended as an insult. But so many other Republican senators joined in—Orrin Hatch, John Cornyn, and Jon Kyl, for instance—that it appears to have been an agreed talking point. (I see Dana Milbank reports that Republican staffers were actually handing out opposition research on Marshall’s voting record after the hearing–another sign that the war on Marshall was a formal strategy.)

At first it was unclear to me what possible complaint about Justice Marshall the Republican Senators could have had. But Dana Milbank at the Washington Post cleared things up:

Republicans saw trouble in this Marshall fellow. "In 2003, Ms. Kagan wrote a tribute to Justice Marshall in which she said that, 'in his view, it was the role of the courts in interpreting the Constitution to protect the people who went unprotected by every other organ of government,' " Kyl complained.

Protecting the unprotected? Say it ain't so!

And that wasn't all. Kagan also emphasized Marshall's "unshakable determination to protect the underdog," Kyl said.

Let’s take a moment to remember all the great things Justice Marshall did for this country. Stephanie Jones’ thoughtful piece in the Washington Post this morning details his vital role in fulfilling the promises of the Constitution. She summarizes:

Marshall was a great jurist who used his skills to move this country closer to being a more perfect union. As a lawyer and a justice, he protected us from activist judges and the cramped thinking of politicians who tried to keep our country in the muck. And he never forgot how the high court's rulings affect the least of us.

So what do Republicans have to gain from attacking this giant? Out west at the Seattle Post-Intelligencer, columnist Joel Connelly reminded us that attacks on Marshall are just part of a larger right wing trend to de-legitimize American heroes with whom they disagree:

The political right has taken to beating up on great American presidents, with the "progressive" Theodore Roosevelt demonized by Fox's Glenn Beck, and Thomas Jefferson ordered banished from textbooks by the Texas Board of Education.

At confirmation hearings for Supreme Court nominee Elena Kagan, Senators from the party of Abraham Lincoln have discovered -- literally -- a new black hat. They are denouncing and labeling Thurgood Marshall, our country's greatest civil rights lawyer.

 

UPDATE: even conservatives are perplexed by the Republicans' anti-Marshall strategy. Check out Joe Scarborough mocking Senate Republicans:

 

PFAW

Sessions: Citizens United was just like Brown v. Board!

You do have to feel for the big corporations who were being discriminated against before the Supreme Court decided they could spend unlimited amounts of money in elections, right? Jeff Sessions, for one, is standing up for corporate underdogs who have fallen victim to moral injustice. Talking Points Memo reports:

Last night, elaborating on his criticisms of former Supreme Court Justice Thurgood Marshall, Sessions made the unusual comparison of Citizens United v. FEC to Brown v. Board of Education of Topeka.

"[Marshall] was right on Brown v. Board of Education. It's akin in my view to the Citizen's United case. The court sat down and we went back to first principles--What does the Constitution say? Everybody should be equal protection of the laws," Sessions told me after a Senate vote last night.

"Is it treating people equally to say you can go to this school because of the color of your skin and you can't?" Sessions asked rhetorically. "We've now honestly concluded and fairly concluded that it violates the equal protection clause."

Come again?

Let’s break this down into a few points that I guess we shouldn’t assume are obvious:

  1. Brown v. Board of Education ended the systematic segregation of the American school system. Citizens United v. FEC struck down a law that didn’t let corporations spend as much as they wanted to on electioneering communications.
  2. The GOP has spent a large part of the past two days attacking Justice Marshall for what they call his “activist” judicial philosophy. They define that philosophy as an insufficient reverence for the Constitution as originally written and intended.
  3. Brown v. Board of Ed (which Marshall argued) is a classic example of a case in which the Supreme Court interpreted part of the Constitution—the 14th Amendment—in a way at odds with the original intent of its writers, but in line with evolving social mores and values. Elena Kagan made that very point herself this morning, as did former Justice David Souter a few weeks ago.
  4. Sessions says that the same philosophy led to Brown v. Board and Citizens United, but continues to slam Thurgood Marshall, the architect of the Brown argument, while praising the results of Citizens United.

The confusing logic aside, the main point here is that Sessions just compared limits on corporate spending in elections with systematic racial segregation. This is the top Republican on the Senate Judiciary Committee. And abstract arguments about judicial philosophy aside, that’s just appalling.
 

PFAW

Who in the World is Thurgood Marshall??

It isn't just Republican senators on the Senate Judiciary Committee who are attacking Thurgood Marshall, the NAACP attorney and American hero whose brilliant long-term litigation strategy led to Brown v. Board of Education, the end of Jim Crow, and eventually to a seat on the Supreme Court. In fact, if they and their compatriots had their way, the next generation might not even know who Thurgood Marshall was. As our affiliate PFAW Foundation has reported, Justice Marshall just barely survived the recent ideological purge of Texas textbooks, despite urgings from Religious Right "advisors" that he be erased from history.

What we're seeing at the Kagan hearings is just part of a larger far right campaign to vilify a man who symbolized the best of America.

PFAW

Judicial Activism?

In response to the GOP’s repeated accusations of Elena Kagan’s so-called judicial activism, Senator Dick Durbin (D-IL) fired back with a quote from Justice John Paul Stevens’ sharp dissent in Citizens United: “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

As Senator Durbin pointedly noted, the Court’s reversal of decades of precedent was “espoused by men who swore they would never engage in judicial activism” – men like Chief Justice John Roberts, who during his own confirmation hearings spoke about how judges are like umpires because they “don’t make the rules, they apply them” and must have “the humility to recognize that they operate within a system of precedent”…and then went on to author the majority opinion in Citizens United. “If that isn’t judicial activism,” said Durbin, “then I don’t know what is.”

And as for the “well-known activist judges” with whom Ms. Kagan has been “associating”, Sen. Durbin spoke out against Republicans’ criticism that Kagan might be a judge in the mold of Thurgood Marshall, for whom she clerked. He instead praised the former justice, citing his critical role in successfully arguing the landmark case of Brown v. Board of Education, and saying that Marshall had changed America for the better. “If that is an activist mind at work, we should be grateful as a nation.”

PFAW

Souter’s Case Against Originalism

In his commencement address at Harvard last week, former Supreme Court Justice David Souter offered up an eloquent and thorough debunking of the popular conservative delusion of constitutional “originalism.”

E.J. Dionne sums it up nicely:

At issue is "originalism," an approach to reading the Constitution whose seeming precision has given conservatives a polemical advantage over the liberals' "Living Constitution" idea that appears to let judges say our founding document means whatever they want it to mean.

Justice Antonin Scalia, the court's leading orginalist, summarized his opponents' attitude toward the Constitution with four words: "You know, it morphs."

Now, thanks to Souter's commencement address at Harvard last week, Scalia's critics have fighting words of their own. Souter, who did not mention Scalia by name, underscored "how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments."

The problem is not only that "constitutions have a lot of general language in them in order to be useful as constitutions," but also that the U.S. Constitution "contains values that may very well exist in tension with each other, not in harmony."

This means that "hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another."

Souter focused on the example of Brown v. Board of Education, the 1954 decision that declared segregated schools unconstitutional. "For those whose exclusive norm of constitutional judging is merely fair reading of language applied to facts objectively viewed,” he said, “Brown must either be flat-out wrong or a very mystifying decision.”

The Supreme Court’s conservative wing has shown itself willing to depart from originalism when it serves their purposes. What’s surprising is that the originalist “balls and strikes” argument is still dominates discussions on the courts.
 

PFAW

Obama's First Judicial Nomination: A Good Start

News reports state that David Hamilton, a federal district court judge in Indiana, will be President Obama’s first judicial nominee. He will apparently be nominated to serve on the United States Court of Appeals for the Seventh Circuit.

I am just learning about Judge Hamilton. In 2005, according to the New York Times, "he made news by ruling that the legislature was prohibited from beginning its sessions with overtly Christian prayers. The decision drew widespread criticism in the legislature and across the state."

I can only imagine.

The overwhelming majority of Indianans are Christian. I’d venture to guess that very few of them have ever lived in a society where theirs was a minority religion, and where the government officially promoted a religion that condemned theirs. The experience of their lives is one where they are comfortably in the majority.

As a Jew who grew up in conservative Texas, my experience is different. I know how it felt in elementary school when public school teachers imposed their Christianity upon the classroom. Officially-sanctioned Christianity regularly made it clear that I was an outsider in my own society: I did not belong.

That is but one of the many excellent reasons that the Founders wisely adopted the First Amendment’s prohibition of the establishment of religion by government. But it’s the one that first occurred to me as I read about the Indiana legislative prayer case.

It is important that judges as a group reflect the diversity of America, so the bench is filled with jurists with a wide variety of life experiences, ranging from the top to the bottom of the social ladder. But that does not excuse the individual judge from being able to step outside their own life experience and recognize that what is not a problem for them can be a severe problem for someone whose life has been different. That is an essential quality for a judge. It’s what made the Brown v. Board of Education decision so different from Plessey v. Ferguson, even though both cases were decided by all-white Courts. Similarly, it’s what made 1976’s Craig v. Boren (establishing a higher level of scrutiny for legal sex-based classifications) so different from 1872’s Bradwell v. Illinois (upholding the state’s prohibition against women attorneys), even though both cases were decided by an all-male Court.

Perhaps Judge Hamilton’s ability to step outside his own experiences helped him decide the legislative prayer case. Either way, he clearly was willing to enforce the First Amendment and clear Supreme Court precedent in a case where he knew that he would be condemned by many people in his state. He put the law over ideology. That’s another quality needed in a judge.

This is an encouraging first judicial nomination from President Obama.

PFAW

Don’t Worry, Sarah. We’ll tell you about the Court!

In an interview with Katie Couric, it appears as if Sarah Palin was unable to name a single Supreme Court case other than Roe v. Wade.

The Palin aide, after first noting how "infuriating" it was for CBS to purportedly leak word about the gaffe, revealed that it came in response to a question about Supreme Court decisions.

After noting Roe vs. Wade, Palin was apparently unable to discuss any major court cases.

There was no verbal fumbling with this particular question as there was with some others, the aide said, but rather silence.

I like to think that if prompted, she could tell us what Brown v. Board of Education accomplished, but I’ve learned not to take anything for granted.

Anyway, Sarah, allow us to tell you about one or two cases that your own running mate has had a hand in bringing about.  Thanks to the confirmation of John Roberts and Samuel Alito, you can use any of these cases to talk about how the Court affects ordinary Americans.

  • Ledbetter v. Goodyear – Makes it harder for women to sue when they’ve been discriminated against.
  • Parents Involved in Community Schools v. Seattle School District No. 1 – Makes it harder to desegregate schools.
  • Hein v. Freedom From Religion Foundation – Makes it harder for to preserve the wall between church and state.
  • Garcetti v. Ceballos – Makes it harder for students to exercise free speech.
  • Gonzales v. Carhart – Makes it harder for women to get abortion procedures they need.

And that’s just the tip of the iceberg!  Thanks to your running mate, there are all sorts of terrible, terrible Supreme Court decisions that limit our rights and freedoms.  Better get studyin’.

PFAW

Brown v. Board of Education: a 54th Anniversary Reminder of the Importance of the Supreme Court

As George Orwell might put it, all Supreme Court decisions are important, but some are more important than others. And in the history of our country, there can be little doubt that one of the Court’s most important decisions was its unanimous ruling in Brown v. Board of Education of Topeka, decided 54 years ago this May 17th. Overturning the shameful “separate but equal” doctrine of Plessy v. Ferguson and striking down school segregation laws, the ruling in Brown gave substance to the Constitution’s promise of equality for all. Without question, May 17, 1954 saw the Supreme Court, led by Chief Justice Earl Warren, at its very best.

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