U.S. Supreme Court – Page 5 – Marquette University Law School Faculty Blog

The Mirror of Racial Tyranny in The Civil Rights Cases

Post author:Atiba Ellis
Post published:November 11, 2018
Post category:Civil Rights Constitutional Interpretation Constitutional Law Legal History Public Race & Law U.S. Supreme Court

Political cartoon from the nineteenth century showing an African American holding a copy of the Civil Rights Act of 1875 while standing at the Gates of Heaven — This 19th Century Thomas Nast cartoon shows an African American at the Gates of Heaven, telling Saint Peter that the Civil Rights Act of 1875 opens all gates for him. Nast’s caption calls on white churches to desegregate.

On the 135th Anniversary of the Supreme Court’s opinion in The Civil Rights Cases, it is worth reflecting on how that opinion — which came after Reconstruction but before Jim Crow—reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the power of the history of slavery and the salience of race, contributes to enduring white supremacy.
This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.

The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments.

Two Supreme Court Experts Warn About Impact of Partisan Nomination Fights

Post author:Alan J. Borsuk
Post published:September 20, 2018
Post category:Political Processes & Rhetoric Public Speakers at Marquette U.S. Supreme Court

Two experts on the United States Supreme Court expressed concerns Thursday during an “On the Issues with Mike Gousha” program at Marquette Law School that the level of partisanship in confirmation processes for justices is causing damage to the court itself.

David A. Strauss, the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago, said, “Things have become a lot more partisan in a way that I think is really damaging for the court as an institution.”

Strauss said, that, even though partisanship has long been a part of confirming court nominees, among senators overall, “there was a consensus that we really have to kind of make sure that we take care of the court.” That meant approving well-qualified candidates who would be respected and do their jobs well, with less attention paid to their partisanship. That has eroded, he said.

“I think it has taken a turn for the much more partisan,” Strauss said. ”What’s really troubling about it . . . Once that happens, it is very hard to dig yourself out of it.”

Supreme Court Navigates Two Water Disputes, With More On The Way

Post author:David Strifling
Post published:January 10, 2018
Post category:Environmental Law Public U.S. Supreme Court Water Law

On Monday the Supreme Court heard arguments in two interstate water allocation disputes, Florida v. Georgia and Texas v. New Mexico and Colorado. The Court has also accepted a third such case, Mississippi v. Tennessee, and assigned it to a special master. The cases will force the Court to examine the balance between economic development and environmental protection, the federal role in state water disputes, and whether groundwater and surface water allocation should be governed by the same decisional rules.

The trio of pending cases belies the Court’s expressed preference for such disputes to be resolved by interstate compacts entered into pursuant to the Compact Clause (Article I, Section 10, Clause 3). It has previously commented that it approaches interstate water disputes with caution given the “complicated and delicate questions” involved, and has advised “expert administration [via a compact] rather than judicial imposition of a hard and fast rule.”[1] Nevertheless, in these cases at least, an old adage often attributed to Mark Twain trumped the Court’s advice: “whiskey is for drinking, and water is for fighting over.”