White robes and black

Confessions extracted under duress or torture are inherently suspect. Perhaps the best summary of the evils of torture and confession-based convictions was the U.S. Supreme Court decision in Chambers v. Florida, announced on Lincoln’s Birthday in 1940. Following a lurid show trial, Florida convicted four African-American tenant farmers of murder, based on confessions extracted after six days of nonstop questioning. The state courts upheld the ruling, but the Supreme Court reversed the convictions and declared, “Under our constitutional system, courts stand, against any winds that blow, as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered or because they are nonconforming victims of prejudice and public excitement.”

The author of those words, Justice Hugo Black, was a 1937 Roosevelt appointee who provided support for emergency recovery programs designed to pull the country out of the depression. Justice Black was attacked by many conservatives because of his support for Roosevelt’s programs and his efforts to use the Bill of Rights to protect vulnerable minorities. Despite these accomplishments, it is misleading to describe Black as an unalloyed hero for justice and supporter of the weak and downtrodden: 17 years before he wrote the Chambers v. Florida decision, Black joined the Robert E. Lee Klan No. 1 of Birmingham, Alabama, and remained an active member for two years.

In the treatise “Amoris Lætitia,” Pope Francis called on the Church to be more attentive to the good that can be found “in the midst of human weakness.” There was a lot of good to be found in Black, but his greatest weakness may have been a pragmatic tendency when faced with a difficult situation. Black’s own explanation for joining the Klan as a young lawyer speaks to this inclination: “I was trying a lot of cases against corporations, jury cases, and I found out that all the corporation lawyers were in the Klan. A lot of the jurors were too, so … I wanted that even chance with the juries.”

Black’s low point as a jurist was his 1944 opinion for Korematsu v. United States, which supported the relocation of Japanese-American citizens from the West Coast after the attack on Pearl Harbor. In dissent, Justice Frank Murphy said, "Such exclusion goes over the very brink of constitutional power and falls into the ugly abyss of racism." Black's explanation for the court’s decision upholding Roosevelt’s removal order was chillingly expedient: “We … were at war. People were rightly fearful of the Japanese in Los Angeles, many loyal to the United States, many undoubtedly not, having dual citizenship — lots of them.” At a time when “prejudice and public excitement” focused on a group of people seen as the enemy within, Black came up disappointedly short.

The Rev. Martin Luther King Jr. provided a caution and some hope when he said, “The arc of the moral universe is long, but it bends towards justice.” Fortunately for the legacy of Black, he was blessed with a long life, and more opportunities to apply his love of the constitution to seek justice for his fellow man. Almost two decades after the shame of Korematsu v. United States, the Supreme Court had the opportunity to rule on a series of cases that clarified the worth of the individual in the true currency of democracy — the right to vote.

The landmark 1962 Baker v. Carr decision struck down a Tennessee scheme established in 1901 that led to a disparity in voting power of 23-to-1 (rural-to-urban) by 1960 for state House districts, declaring that the Court could review equal protection of the law as guaranteed by the 14th Amendment.  Subsequent cases (Gray v. Sanders in 1963 and Wesberry v. Sanders in 1964) tackled voting dilution strategies used by Georgia to favor rural areas, establishing the principle of “one person, one vote.” Black’s opinion in Wesberry v. Sanders reestablished him as a champion for individual worth, as he parsed the writings of James Madison on the Bill of Rights and proclaimed, “No right is more precious in a free country than that of having a voice in the election of those who make the laws. … Other rights, even the most basic, are illusory if the right to vote is undermined.”

Recently, the Court reaffirmed the “one person, one vote” standard in Evenwel v. Abbott. The Court held that a proposed arrangement by Texas conservatives to ignore non-citizens, children, felons and other ineligible voters in establishing the number of people in a voting district unconstitutionally denied equal protection to the uncounted. The opinion by Justice Ruth Bader Ginsburg cites with approval Black’s words from Wesberry v. Sanders, “While it may not be possible to draw congressional districts with mathematical precision, that is no excuse for ignoring our Constitution's plain objective of making equal representation for equal numbers of people the fundamental goal… . That is the high standard of justice and common sense which the Founders set for us.”

Justice Clarence Thomas wrote a separate opinion in Evenwal v. Abbott, ignoring 50 years of precedent on voting rights, complaining that the Court’s Wesberry v. Sanders opinion “ … failed to provide a sound basis for the ‘one-person, one-vote’ principle because no such basis exists.” In a convoluted and highly-targeted reading of Madison’s notes, he discovered near total relinquishment of voting matters to the states. In seeking the splinter of states’ rights in Madison’s eye, Thomas ignored the crushing beam of racial discrimination that is at the core of these nefarious schemes to dilute voting rights. Black shed the white robe of ignorance and racism, and left a legacy that, while flawed, contains epic defenses of personal rights. Unfortunately, the weighty responsibility of protecting the rights of us all that attends the justice’s black robe seems to diminish and enfeeble those out of harmony with the arc of the moral universe.