The Unprofessionals

In the decade after the American Civil War, Congress ratified three Amendments (the Thirteenth, Fourteenth, and Fifteenth) and passed five civil rights statutes (the Freedmen’s Bureau Act of 1866, the Civil Rights Act of 1866, the Civil Rights Act of 1870, the Civil Rights Act of 1871, and the Civil Rights Act of 1875) in an attempt to integrate African Americans into society and provide them with the full rights and privileges of citizenship.  From rights to vote, hold property, and contract, to rights of access to the courts, public infrastructure, and the marketplace, these enactments represented a dream of reconstruction that strove toward a more universal application of the ideals of the Declaration of Independence.  In striking down and interpreting these laws, the decisions of the Supreme Court played a crucial role in curtailing the promise of this older civil rights movement.  The Court’s undermining of the laws led to the legal segregation, discrimination, terrorizing, denial of due process, lynching, murdering, exploitation, and injustice that characterizes the African American experience in the century that followed.

The highlight reel that we all study in Constitutional Law class includes:


The Slaughter-House Cases, 83 U.S. 36 (1873) – In which the Fourteenth Amendment’s Privileges or Immunities Clause was eviscerated “so drastically as to make it all but meaningless,” (Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution 133-36 (2019)), in effect giving states legal authority over issues of citizen’s rights.

The Civil Rights Cases, 109 U.S. 3 (1883) – In which the Court held that the protections of the Thirteenth and Fourteenth Amendments do not apply to racial discrimination by private individuals, in effect allowing for the denial of due process and equal protection that gave rise to Jim Crow and the Ku Klux Klan.

Plessy v. Ferguson, 163 U.S. 537 (1896) – In which racial segregation in public facilities was found to be constitutional, in effect allowing a “separate but equal” doctrine to counteract and subvert the Reconstruction legal framework.

In a strange perversion, the Supreme Court ended up accepting that the equal protection and due process afforded by the Fourteenth Amendment applied to corporations in addition to, and perhaps more so than, natural persons.  (See Santa Clara v. Southern Pacific, 118 U.S. 394 (1886) and Pembina Consolidated Silver Mining Co. v. Pennsylvania,125 U.S. 181 (1888).)  An Atlantic article from last year notes:

As Adam Winkler documents in We the Corporations, from 1868 to 1912 the Supreme Court heard 604 Fourteenth Amendment cases. Fewer than 5 percent involved the civil rights of black Americans, and civil-rights advocates lost nearly all of those. “More than half of all the Fourteenth Amendment cases decided by the Supreme Court—312 in total—involved corporations,” Winkler writes, “which succeeded in striking down numerous laws regulating business, including minimum wage laws, zoning laws, and child labor laws.” The redistribution of civil rights from American citizens to American corporations helped create the greatest disparities in wealth in the nation’s history, until the present day.

Why did the Court take the wrong side of history?  Why give states such latitude?  Why not expand on the Bill of Rights after Congress provided a road map?  And with the application of protections to businesses, why should this constitutional check so overwhelmingly protect the powerful over the vulnerable?

Lawrence Goldstone in Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court (2011) discusses the turnover in the judiciary, from Lincoln to Johnson to Grant, that supplied the Supreme Court with its jurisprudence.  In an interview, Goldstone summarized “[A]s we moved later into the 19th century, most of the appointees had a corporate law background . . . [T]here were a lot of appointments which, when we look back, seem to have more to do with a political philosophy than with excellence on the bench or brilliant legal analysis.”  Regarding the “twenty-four men [who] served on the Supreme Court between 1870 and 1900,” writes Eric Foner (supra at 129), “most hailed from privileged backgrounds and had made livings representing railroads and other corporations before joining the Court . . . few had significant contact with black Americans.”

At the time of his nomination, Morrison Waite, who would become Chief Justice from 1874 to 1888, was “described by the Nation as being among ‘the first rank of second rank lawyers,’” and “had never held a federal office.”  (Goldstone, 2011, at 87.)  After Waite, the Chief Justice from 1888 to 1910 was Melville Fuller, who, when nominated, had no judicial experience and “was described by a critic as the ‘fifth best lawyer in the city of Chicago,’ not meant as a compliment to either the man or the city.”  (Id. at 145-46.)

This past week marked a milestone in the Trump administration’s re-fashioning of the federal judiciary as “a quarter of the nation’s 179 appeals court judges,” are appointees of the current administration.  There have been criticisms of the nominees.  More have received a rating of “not qualified” from the American Bar Association then those of the last four presidents.  Some have never tried a case, been co-counsel, or were even able to answer basic questions about litigation.  One was questioned about involvement with the Alliance Defending Freedom, a conservative Christian organization that was designated a “hate group” by the Southern Poverty Law Center.  That same judge is now the youngest ever to be approved, noteworthy because federal judicial appointments are for life.  Others have refused to answer questions during their confirmation hearings, or been described as having a “lack of humility, an ‘“entitlement” temperament,’ a closed mind and an inconsistent  ‘commitment to being candid.’”

In October of last year, retired Supreme Court Justice John Paul Stevens commented on the Trump administration’s then-nominee for the Supreme Court, Brett Kavanaugh.  Justice Stevens said that prior to the congressional hearings Kavanaugh seemed qualified to serve on the high court, but Kavanuagh’s behavior at the confirmation hearings had made Justice Stevens reluctantly change his mind.  Rather than displaying dispassion, deliberation, empathy, and objectivity, Kavanaugh exhibited extreme partisanship, petulance, and unprofessional conduct.  Justice Stevens referred to analysis “that has demonstrated a potential bias involving enough potential litigants before the court that [Kavanaugh] would not be able to perform his full responsibilities . . . for the good of the court, it’s not healthy to get a new justice that can only do a part-time job.”

The past is never dead.  It’s not even past.” Viewing current events in a more historic context can sometimes lessen the sting of what often seems like the absurdity of national politics.  The question is whether or not we will learn from the past.

Joseph Riepenhoff

Joe Riepenhoff graduated from Marquette University Law School in 2014. While at Marquette, he was a student advisory board member for the Marquette Volunteer Legal Clinic, an intern for the Waukesha County Circuit Court criminal division judges, and research assistant for Prof. Daniel Blinka. Since graduating he has worked as a staff attorney for the Wisconsin State Public Defender Office, a conflicts analysts at Foley and Lardner, and is now a staff attorney at the Legal Aid Society of Milwaukee.

This Post Has One Comment

  1. David R Papke

    Don’t overlook the importance of the Federalist Society in shifting the federal judiciary to the right. Affiliation with the Federalist Society has become the key indicator that one is a conservative legal thinker, and recent Republican Presidents have almost required that nominees for the federal bench be Federalists. As of the beginning of 2019, 25 out of 30 appellate court nominations made by President Trump were current or former members of the Federalist Society. These conservative nominees’ opinions are likely to be well received by the Supreme Court of the United States, where 5 members (Alito, Gorsuch, Kavanaugh, Roberts, and Thomas ) are proud of their Federalist Society credentials.

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