Orville Vernon Burton *76 and Armand Derfner ’60 Examine the Supreme Court’s Record on Race

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The book: Justice Deferred: Race and the Supreme Court (Harvard University Press) explores the treatment of race in the three-century history of the United States Supreme Court. Analyzing more than 200 cases involving race and ethnicity, Burton and Derfner conclude that the Court is heavily responsible for America’s still-fragile civil rights protections and complicit in the nation’s history of racism. But despite this dark past, Burton and Derfner look to the future, arguing that the Court holds the power to ensure equal rights for all. Justice Deferred offers key insights into the prevalence of race and the Court in our national dialogues and proposes a new way forward.

The authors: Orville Vernon Burton *76 is an award-winning author and historian, a professor of history at Clemson University, and a professor emeritus of history at the University of Illinois. Among his previous books are The Age of Lincoln, winner of the 2007 Chicago Tribune Heartland Prize for nonfiction.

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Orville Vernon Burton *76

Armand Derfner ’60 is a renowned civil rights attorney. He has been practicing civil rights law for more than 50 years and argued his first Supreme Court case in 1968. At Princeton, Derfner earned the Koren Prize in History and the Woodrow Wilson Foundation Fellowship. Burton and Derfner began working together on civil and voting rights cases in 1980.

Excerpt: The words “Law—the Guardian of Liberty” are carved high on the east façade of the U.S. Supreme Court building in Washington, D.C. Americans typically think of the Supreme Court as the guardian of both law and liberty. Even when we rail against some of its particular decisions, Americans recognize it as the institution that ended segregation, guarantees fair trials, and protects free speech and the right to vote. But the reality is more complicated, especially in the area of race and civil rights. In this area, those accomplishments date from a short period in history, from the 1930s to the early 1970s. Before that time, the Supreme Court spent much of its history ignoring or suppressing those rights, and in the half-century since the early 1970s the Court’s record on civil rights has retreated far more than it has advanced.

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Armand Derfner ’60

“Race” is a vexing and perplexing concept. DNA has shown that race is a fiction. No gene defines one’s race; any random person on earth may be far closer genetically to someone of a “different” race than to someone of the “same” race. Race does not even match up with color, as the Supreme Court declared a century ago when it said “white” meant “Caucasian” and then said maybe it did not. Even though classifying people by race makes no biological sense, it has been common practice for a long time. The artificial social and legal construct of race has been made a very real part of the social and legal system; different combinations of parentage and pigment have been the basis for handing out privileges and disadvantages to people. Artificial or not, race and racism have been given a major role in human life by law and society, including in the United States.

Nor is race just “white” and “Black.” Other groups, such as Native Americans, Latinos, and Asian Americans, are part of the story of race and of the U.S. Supreme Court, and they are part of the story of this book. African Americans (the largest minority until the 2000 census) are at the center of this book because so much of U.S. national history and so many Supreme Court cases have focused on slavery and Jim Crow and their aftermath. This book, while covering the entire United States, often looks toward “the South,” the place where most African Americans have lived for most of U.S. history.

Just like the notion of race, the Supreme Court can also be vexing and perplexing. Even if its mission were simply to call balls and strikes, as John Roberts suggested in 2005 when he was a nominee to the Court, how does that work when the umpires keep changing, and each new set of umpires can redefine the strike zone, change the number of balls and strikes each batter gets, and even change decisions by previous umpires?

Put together the vexing concept of race with the perplexing Supreme Court, and you have this book. Fusing the perspectives of a historian and a lawyer, the book views U.S. racial history through the lens of the Supreme Court, from slavery in the colonies to the present day, and even projects a glimpse of possible futures.

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The Supreme Court, of course, does not make history or national policy by itself. It is only a single institution interacting with the president, Congress, the states, and innumerable other public and private institutions. Indeed, its overall influence on events, whether involving race or anything else, varies widely. This book is not aimed at magnifying or minimizing the Supreme Court’s role in the country’s racial history. But the Supreme Court was “there,” even when it did not seem to be, so this book is both the story of the Supreme Court’s race history and a view from one crucial angle of the overall race history of the nation.

This history of race and the Supreme Court covers more than legal analysis; it is also full of politics, personalities, and high drama: President Buchanan’s efforts to “fix” the outcome of the Dred Scott case; Booker T. Washington’s secret financing of lawsuits challenging various aspects of Jim Crow; Chief Justice Fred Vinson’s sudden death and

Earl Warren’s appointment in time for the segregation cases (regarding which another justice said the timing indicated the possibility of divine intervention).

There are other examples: the former slaveholder who became the greatest champion of his time for African Americans—but not for Chinese people; the Union soldier, wounded three times in the Civil War, who wrote strong opinions supporting Jim Crow; the former Klansman who as a justice was a vigorous civil rights supporter—until he was not; and the African American lawyer who could not seem to lose a Supreme Court

case until he became a justice and soon found himself on the losing side of almost every major civil rights decision for his last two decades on the Court.

We leave it to the reader to explore the “what if” questions: 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? Would racial struggles over the right to vote still be so troublesome today if the Supreme Court had not abandoned the Fifteenth Amendment in six cases in a row at the turn of the 20th century? Would the Civil Rights Movement have been crippled if the Court had decided two cases against the NAACP, as it was preparing to do — until two justices suddenly left the Court within five days, one laid low by a nervous breakdown and the other by a stroke?

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Justice Deferred provides a broad-based picture of race in America, past and present, through the lens of the Supreme Court. The sweep of the story touches on the colonies, the Constitution, slavery, Civil War, Reconstruction, Jim Crow, the New Deal, World Wars I and II, the Civil Rights Movement, affirmative action, and today’s world. Over that long course, the story of race and the Supreme Court is really a history of the progress of equality — backward or forward, fast or slow. No institution is better suited than the Supreme Court to define the golden ideals of America; that is why this book is so critical of instances when the Supreme Court seems to have fallen short, and why it celebrates the transcendent moments when the Supreme Court carries the nation forward. In charting the progress of Equality, Freedom, and Justice for All, the line is not straight, but the past links to the present. Ultimately the book speaks to the future.

Review: “This comprehensive history demonstrates a hard truth in America: the highest court has most often been on the wrong side of racial justice. From the heartbreak of Dred Scott to the promise of Brown v. Board of Education to current efforts to roll back voting rights, Justice Deferred reminds us that the fight for justice requires our constant vigilance.”—Ibram X. Kendi, author of How to Be an Antiracist