Tag Archives: Brown v. Board of Education

On Same-Sex Marriage

In 1952 William Rehnquist, the former Chief Justice of the Supreme Court, wrote a memo he called “A Random Thought on the Segregation Cases”.  At that time, Rehnquist was clerking on the Supreme Court for Justice Robert Jackson, and the memo was apparently addressed by Rehnquist to his then boss.

In his memo, Rehnquist mapped out his vision for how the Court should deal with a series of cases brought by the NAACP challenging the practice of racial segregation that were working their way through the lower courts and almost certainly bound for the Supreme Court.

Rehnquist, for the most part, urged restraint.  Rehnquist thought that because public opinion had already spoken on the topic of racial segregation — largely receptive of the practice — it would be inappropriate for the Court to get involved simply because its members  “dislike[d] segregation” or considered it “morally wrong[]”.  Only in “extreme cases”, Rehnquist cautioned, would it be appropriate for the Court to step in to “thwart public opinion”.  In Rehnquist’s mind racial segregation did not meet that test.

In concluding his memo, Rehnquist offered the following observation:

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleagues, but I think Plessy v. Ferguson [the case that established the principle of “separate but equal”] was right and should be re-affirmed.  If the Fourteenth Amendment did not enact Spencer’s Social Statios [sic], it just as surely did not enact Myrddahl’s American Dilemna [sic].

Rehnquist’s view, we know now, did not prevail.  The Court ultimately took the so-called “segregation cases” and voted unanimously to strike down as unconstitutional the practice of racial segregation in its landmark decision of Brown v. Board of Education.

Chief Justice Robert’s recent dissent in the same-sex marriage case makes a lot of the same points Rehnquist made in this memo, which is not surprising.  Like Rehnquist, Roberts is a conservative.   And he had at one time clerked for Rehnquist.  At one point in his dissent Roberts uses the same reference to Spencer’s Social Statics and the Fourteenth Amendment that Rehnquist used at the end of his memo, language which Roberts correctly attributes to Judge Friendly and Justice Holmes, but he almost certainly had Rehnquist and perhaps his 1952 memo in mind in writing that and the rest of his dissent.

The approach advocated by Rehnquist and Roberts — that is, let the legislators and voters decide — has some appeal.  One might counter however that they only suggest this approach because they know it is one that is self-defeating; that there will always be a majority of lawmakers and their supporters somewhere who will refuse to recognize the fundamental right at issue.

Right approach or not, what matters ultimately are the facts on the ground.  And that, to a large extent, is determined by the hearts and minds of everyday folks and how they wish to shape the society in which they live.  Court rulings and statutes carry some influence in that respect.  More so, however, is the unwritten code of life that governs how we treat one another  — with dignity, respect and fairness.  That it took years of hard-fought litigation and a sharply divided Supreme Court to confer on homosexuals the right to marry is proof that this code is sorely lacking in this country, or is simply not being observed to the extent that it should.  Were the opposite true, the debate about gay marriage would have ended a long time ago and with the “self-evident” conclusion that “all men [and women] are created equal….”

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Odds and Ends: Representing the Invisible Man

The Times had two interesting profiles the other week that are worth reading.  One is on Lloyd Gaines, a litigant in a Supreme Court case that was a precursor to Brown v. Board of Education.  Here is how it begins:

Lloyd Gaines was moody that winter of 1939, acting not at all like a man who had just triumphed in one of the biggest Supreme Court cases in decades. And oddly, even though it was raining and the sidewalks of Chicago were clogged with slush, he felt a need to buy postage stamps one night.

Or so he told a friend just before he left his apartment house on March 19, 1939, never to be seen again. Had he not vanished at 28, Lloyd Gaines might be in the pantheon of civil rights history with the Rev. Dr. Martin Luther King Jr., Thurgood Marshall and other giants whose names will be invoked at the centennial convention of the National Association for the Advancement of Colored People, which started this weekend in Manhattan.

Instead, Mr. Gaines has been consigned to one of history’s side rooms, his name recalled mainly by legal scholars and relatives, like Tracy Berry, an assistant United States attorney in St. Louis whose grandmother was Mr. Gaines’s sister.

“He was taken away and more than likely killed,” Ms. Berry said when asked to speculate on his fate. She said Mr. Gaines was known in family lore as “a caring, loving brother and son” who would not have chosen to disappear or commit suicide, despite the pressure he was under.

The full story can be read here.

The other profile deals with Ramon J. Jimenez, an attorney in the Bronx who like Sonia Sotomayor is of Puerto Rican descent and a graduate of Harvard Law School.  Instead of going the route of prosecutor, Big Law attorney, and federal judge, however, Mr Jimenez returned to his working class roots, setting up shop in the Bronx as a solo practitioner.  The articles has this description:

For more than 30 years, Mr. Jimenez has been a South Bronx litigator and agitator, representing low-income families, injured workers, community groups and others in the poorest Congressional district in the country. Many of the cases he takes on pro bono. In recent years, he has earned about $40,000 a year.

Mr. Jimenez has been an outspoken critic of Bronx Democratic political leaders. He has sued the city, federal housing officials, landlords and labor leaders. On Tuesday, as Judge Sotomayor answered questions from senators about her “wise Latina” comment, the right to bear arms and the 14th Amendment, Mr. Jimenez was preparing for a meeting later in the evening with black and Latino workers at Woodlawn Cemetery who say they are being discriminated against.

The full profile on Mr. Jimenez can be found here.