Posts Tagged ‘US Supreme Court’


Black Southern Voters, Poised to Play a Historic Role

Nate Cohn

The New York Times   July 18, 2014

Southern black voters don’t usually play a decisive role in national elections. They were systematically disenfranchised for 100 years after the end of the Civil War. Since the days of Jim Crow, a fairly unified white Southern vote has often determined the outcome of elections.

This November could be different. Nearly five decades after the passage of the Voting Rights Act, black voters in the South are poised to play a pivotal role in this year’s midterm elections. If Democrats win the South and hold the Senate, they will do so because of Southern black voters.

The timing — 50 years after the passage of the Civil Rights Act and 49 years after the passage of the Voting Rights Act — is not entirely coincidental. The trends increasing the clout of black voters reflect a complete cycle of generational replacement in the post-Jim Crow era. White voters who came of age as loyal Democrats have largely died off, while the vast majority of black voters have been able to vote for their entire adult lives — and many have developed the habit of doing so.

This year’s closest contests include North CarolinaLouisiana and Georgia. Black voters will most likely represent more than half of all Democratic voters in Louisiana and Georgia, and nearly half in North Carolina. Arkansas, another state with a large black population, is also among the competitive states.

Southern black voters have already made their mark on this year’s midterm elections. Last month, Senator Thad Cochran defeated a Tea Party challenger with the help of a surge in black turnout in a Republican run-off in Mississippi.

Black voters in the South have played an important role in a handful of federal elections since 1965, when the Voting Rights Act was passed. In 1976, Jimmy Carter won the presidency with the help of black voters in the Deep South. Democrats also won many competitive Senate seats in the South in 1998. Black voters have even played a decisive role in some states that will be crucial this November: They represented about half of Senator Mary Landrieu’s supporters in Louisiana 2002 and 2008; and in North Carolina in 2008, nearly half of President Obama’s supporters were black.

But there has not been a year since Reconstruction when a party has depended so completely on black voters, in so many Southern states, in such a close national contest. President Carter, for instance, won by a comfortable margin in most of Dixie, with strong support among white voters. In 1998, Senate control was not at stake, and Mr. Obama’s 2008 victory in North Carolina was icing on the cake.

If Democrats win this November, black voters will probably represent a larger share of the winning party’s supporters in important states than at any time since Reconstruction. Their influence is not just a product of the Senate map. It also reflects the collapse in Southern white support for Democrats, an increase in black turnout and the reversal of a century-long trend of blackoutmigration from the South.

State-level Democrats performed fairly well among Southern white voters in the decades after the passage of the Voting Rights Act. A majority of white voters were still self-identified Democrats who formed their partisan allegiances when white supremacist Democrats ruled Dixie. As a result, Southern Democrats did not usually depend on black voters, who generally turned out at lower rates than white voters.

That era has come to an end. Today, the overwhelming majority of voters, white and black alike, reached voting age after the passage of the Voting Rights Act. Southern politics are now defined by the post-Civil Rights era: The old generation of Southern white Democrats has almost entirely departed the electorate, leaving white voters overwhelmingly Republican. Mr. Obama won about 15 percent of white voters in the Deep South in 2012.

Democrats lamented low black turnout for decades, but Southern black turnout today rivals or occasionally exceeds that of white voters. That’s in part because black voters, for the first time, have largely been eligible to vote since they turned 18. They have therefore had as many opportunities as their white counterparts to be targeted by campaigns, mobilized by interest groups or motivated by political causes.

Mr. Obama is part of the reason for higher black turnout, which surpassed white turnout nationally in the 2012 presidential election, according to the census. But black turnout had been increasing steadily, even before Mr. Obama sought the presidency. In 1998, unexpectedly high black turnout allowed Democrats to win a handful of contests in the Deep South; in 2002, Ms. Landrieu won a Senate runoff with a surge in black turnout.

The Supreme Court’s decision last year to strike down a central provision of the Voting Rights Act unleashed a wave of new laws with a disparate impact on black voters, including cuts in early voting and photo-identification requirements.

These laws will disenfranchise an unknown number of eligible voters, but probably not so many as to have a big effect on election results. In Georgia, where a voter ID law has been in place since 2007, the black turnout rate has increased to nearly match that of whites.

The post-Jim Crow era also led to the end and eventual reversal of the Great Migration, the exodus of blacks from the South to escape racist laws and seek better economic opportunities. The South was home to about 90 percent of the nation’s African-Americans until the beginning of the 20th century. By 1970, 53 percent of blacks lived there.

This trend reversed in the decades after the passage of the Civil Rights Act. Today, 57 percent of black Americans live in the South; more than one million black Southerners today were born in the Northeast.

Nowhere has the remigration done more to improve Democratic chances than in Georgia, where Democrats have a chance to win an open Senate seat this November. Since 2000, as the black population has risen, the share of registered voters who are white has dropped to 59 percent, from 72 percent.

The Democratic nominee in Georgia is Michelle Nunn, a candidate symbolic of generational change in her own right. She is the daughter of Sam Nunn, a conservative Democratic former senator from rural, downstate Georgia who was first elected in 1972. If Ms. Nunn wins this November, it will be with only a handful of the rural, Southern white voters who adored her father.

The state’s growing black population will give her a chance to win with less than one-third of the white vote, a tally that would have ensured defeat for Democrats just a few years ago. Her pathway to victory would be unrecognizable to her father, who never won re-election with less than 80 percent of the vote.


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Brown v. Board of Education


The Warren Court (1953)

This page lists articles that put into historical perspective the changes wrought by the Supreme Court decision Brown v. Board of Education (1954). Click here to read the Brown decision.

Commentary on Recent Supreme Court Decisions Involving Brown


  • Bonnie Goodman Interview with Michael J. Klarman, Winner of the 2005 Bancroft Prize
  • Christopher W. Schmidt The Delusions Behind the Brown Decision
  • Ian Haney Lopez The Supreme Court Case that Got Right What Brown Got Wrong
  • Kansas State Historical Association«Brown v. Board of Education: The Case of the Century»–The Kansas Bar Association created a 70-minute video,»Brown v. Board of Education of Topeka: The Case of the Century,» and related teaching materials as a project for the 50th anniversary of the landmark decision. The video features a reenactment of the 1952 and 1953 oral arguments presented to the U. S. Supreme Court. The video will run continuously during the exhibit, Equal Education: The Fight, The Right May 1 – 30, 2004, at the Kansas History Center and Museum.
  • Eric Foner & Randall KennedyBrown at 50
  • Michael Klarman The Supreme Court Has Never Been in the Vanguard of Social Reform
  • Robert Jackson Symposium To commemorate and consider Brown at 50, the Robert H. Jackson Center recently hosted three special events in Jamestown, New York, and at nearby Chautauqua Institution. The symposium featured Nicholas Katzenbach, law clerks from the Supreme Court of 1954, and the sisters Linda Brown Thompson and Cheryl Brown Henderson, daughters of the late Oliver Brown of Topeka.
  • Newsweek Photo Gallery from the Era of Brown
  • Ellis Cose Why Brown Seems to Be a Bust
  • Suzanne Sataline Charles Sumner Made the Case Against Segregated Schools a Century Before Brown
  • Thomas Sowell We Are Still Paying the Price for the Faulty Reasoning in Brown
  • Sara Hebel 50 Years After Brown Inequities Remain at Universities
  • James Patterson Why It’s Right to Remember Brown
  • William Kashatus Despite Brown We Are Re-Segregating Our Schools
  • Cass SunsteinBrown Reconsidered?
  • Drew Jubera Why Wasn’t It Brown vs. Alabama or Brown vs. South Carolina?
  • Michael Klarman Why Brown Had Such an Impact
  • Chronicle of Higher Education What New Books Are Saying About the Impact of the Brown Decision
  • Justin EwersBrown V. Board of Education: 50 Years Later
  • Rick Shenkman The Panel Devoted to Brown at the 2004 OAH Convention


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The Ambivalent Legacy of Brown v. Board

Jelani Cobb 

The New Yorker  May 16, 2014


Brown v. Board plaintiffs, Topeka, Kansas, 1953. Photograph by Carl Iwasaki/Time Life Pictures/Getty.

In March of 1863, a fugitive slave named Gordon found his way to the Union Army lines in Baton Rouge, Louisiana. Exhausted from his efforts to escape his slaveholders and their dogs, he showed up in tattered rags. When doctors examined him, they saw that his back was marred by a lattice of keloid scars, evidence of the severe whippings he’d endured in bondage. He was photographed, and the image of this former slave, stripped to the waist, with lash marks inscribed on his skin like a bas-relief, was widely distributed in the North—as indisputable evidence of the evil that had brought the nation to the brink of self-destruction. Unlike the authors of slave narratives, Gordon’s ruined flesh could not be accused of hyperbole.

Gordon enlisted in the Union Army, and the image of his lacerated back came to represent an imperative in future struggles for racial equality. Merely highlighting the existence of injustice was insufficient; you had to show the brutal consequences of that injustice, as vividly as possible.

This kind of scar-bearing was an integral part of the twentieth-century movement to uproot Jim Crow, which reached its zenith sixty years ago this Saturday, with the Supreme Court’s ruling in Brown v. Board of Education. Thurgood Marshall’s assault on the edifice of segregation had been confounded by the question of whether the Fourteenth Amendment prohibited racial segregation. The Supreme Court’s decision in Plessy v. Ferguson, in 1896, had held that a putatively benign social separation could coexist with the amendment’s guarantee of equal protection under the law. The majority opinion, in fact, went so far as to argue that efforts to overturn segregation had been motivated by blacks’ misperceptions of the practice:

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

To combat the notion that the evils of segregation were so much hyperbole, Marshall and the other lawyers at the N.A.A.C.P. Legal Defense Fund called upon the psychologists Kenneth and Mamie Clark, whose famous “doll tests” had demonstrated that racism was damaging to the minds of black children. Beginning in 1939, the Clarks had conducted experiments showing that, when presented with two dolls identical in every way except color, black children consistently attributed favorable characteristics like beauty and intelligence to the white dolls, while reserving their most negative assessments for the dolls they most resembled. The Clarks’ work demonstrated that scars need not be visible in order to be indelible, and their data helped to bolster Marshall’s contention that racial separation violated the Fourteenth Amendment’s equal-protection clause.

The nascent civil-rights movement drew its moral authority, in some measure, from the image of African-Americans who were psychologically “damaged” by the legacy of slavery and the ongoing travesty of segregation. But those arguments, about the extent to which racism had wounded the African-American mind, have had a far more complicated legacy than the celebration of Brown would suggest. As the historian Daryl Michael Scott argues in his 1997 book, “Contempt and Pity”:

Liberals used damage imagery to play upon the sympathies of the white middle class. Oppression was wrong, they suggested, because it damaged personalities and changes had to be made to promote the well-being of African Americans. Rather than standing on the ideals of the American creed and making reparations for the nation’s failure to live up to the separate but equal doctrine set forth in Plessy v. Ferguson, liberals capitulated to the historic tendency of posing blacks as objects of pity.

Six decades after the Supreme Court struck down de-jure segregation, vast swaths of the American education system remain separated by race—indeed, there has been a trend toward resegregation in many areas, particularly in the South. But the most telling indicator of the ambiguous legacy of Brown may be the way we perceive the kinds of arguments that led to the decision.

In 1986, the anthropologist John Ogbu conducted a study of African-American academic performance, and he concluded that many black students viewed high educational achievement as a form of “acting white.” Ogbu’s conclusions were widely disputed by other researchers, yet the term—succinct in its oversimplification—leapt from scholarly journals into public debates about race. The Clarks’ doll tests were seen as an indictment of white racism, but the notion of “acting white”—fundamentally rooted in a similar tendency to ascribe virtue to whiteness—was nonetheless deployed as a means of pointing toward African-Americans’ own self-defeating behavior.

This rhetoric was not confined to white conservatives. In 2004, at a dinner sponsored by the N.A.A.C.P. Legal Defense Fund to mark the fiftieth anniversary of their victory in the Brown case, Bill Cosby departed from his notes and launched into a tirade against the shortcomings of impoverished African-Americans. Speaking of Kenneth Clark, by then an elderly widower, Cosby said:

Kenneth Clark, somewhere in his home in upstate New York … just looking ahead. Thank God, he doesn’t know what’s going on, thank God. But these people, the ones up here in the balcony fought so hard. Looking at the incarcerated, these are not political criminals. These are people going around stealing Coca-Cola. People getting shot in the back of the head over a piece of pound cake! Then we all run out and are outraged, “The cops shouldn’t have shot him.” What the hell was he doing with the pound cake in his hand?

Cosby’s remarks were applauded by many on the right, as well as by more than a few African-Americans. What was once considered “damage” had been transformed—by the passage of a few decades and by the insistence that racism was behind us now—into “pathology.” Cosby’s intemperate rhetoric tapped into a vein of frustration, seldom voiced in public, that, a half century beyond the most crucial judicial decision of the civil-rights era, the problems once attributed to legal segregation managed to persist. Despite Cosby’s invective, it was never clear where that frustration should be attributed. There are no metrics for how quickly a group should recover from legally enforced subordination, and no statistical rendering of ongoing racial inequalities could match the explanatory power of a “Colored Only” sign. If these complexities confounded people like Cosby, who’d actually lived through segregation, there was scant hope that they’d be readily perceived by many people who hadn’t.

Yet some things have remained constant. Alarmingly, versions of the Clarks’ doll test conducted in the past few years still yield results similar to those of the original experiments. In 2011, the sociologist Karolyn Tyson showed that concerns over “acting white” among black students tended to arise not in overwhelmingly black schools but precisely in settings in which black students were underrepresented. And yet, sixty years after Brown, the prevailing idea in these debates remains one that is similar to the argument presented in Plessy: that the major, and perhaps the only, problem with ongoing segregation is the way black people perceive and respond to it.

The United States may not be “post-racial,” as many claimed in the wake of Barack Obama’s election, but it clearly sees itself as post-racism, at least when it comes to explaining the color-coded disparities that still define the lives of millions of its citizens.

Jelani Cobb is Associate Professor of History and Director of the Institute for African American Studies at University of Connecticut.



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Church and the State in America: a Brief Primer

Ira Chernus

HNN      May 5, 2014


Congregational Church, Chicago, Illinois

The Supreme Court has ruled, 5-4, that Greece, New York, can open its town meetings with a prayer, even though nearly all the prayers have contained distinctively Christian language. No doubt advocates and critics of the opinion are scouring American history, looking for proof that their view is correct.

If they look with an unjaundiced eye, they’ll quickly discover one basic principle: Whatever position you hold on this issue, you can find some support in our nation’s history. So history alone cannot resolve the ongoing debate. But it can help inform the debate.

To understand that history we have to begin in the European Middle Ages, when the Roman Catholic Church held sway over the religious life of almost all western Europeans. Politically each area was usually ruled by a single a monarch.  Since «Church» and «state» were both monolithic institutions, it made sense to talk about «church-state relations» quite literally.

In principle, both sides usually agreed that the state ruled over the affairs of this world and the church ruled over the affairs of the soul as it headed toward the next world. In practice, though, each side often tried to extend its power over the other.

When the Protestant reformation came along in the 16th century, it refuted the Catholic church’s claim to control other-worldly affairs. But it did not challenge the basic idea that each area should have one secular ruler and one established church, and the two should live side by side, each respecting the other’s domain. So tensions between church and state inevitably continued.

Since nearly all the early European colonists in what would become the United States were Protestants, they brought that Protestant view with them. Different denominations had majorities in the various colonies, and each had its own model of church-state relations.

But nearly everyone assumed that it could make sense for a colony to have one established church, which would have special privileges from and influence upon the colony. Most of the colonies did, in fact, have established churches.

By the early 1700s, though, the colonies were filling up with immigrants from different places who held different religious views. So the established churches everywhere had to tolerate dissent from the official religion, to a greater or lesser degree.  At the same time, the colonies were experimenting with all sorts of different political structures.

Thus «church» and «state» were no longer monolithic entities as they had been in medieval times. Gradually, the term «church» became a code word for religion in general, including the many different religious beliefs and practices held by different groups and individuals. And the term «state» became a code word for the many various political structures — town, city, county, colonial legislature, royal council, etc.

Things got more complicated in the 18th century as people found their identity based less in fixed social institutions and more in open-ended individual conscience. The Enlightenment philosophers taught that religion was a matter of private belief and individual relationship with God. They also taught that every individual was free to choose their own political views and that the state should base its policies on the will of the majority.

A large Christian revival movement called the Great Awakening reinforced the idea that religion is a matter of inner experience and personal relationship with God more than membership in a church. So the Enlightenment and the Awakening combined to promote individualism and the notion of religion as a private matter.

By the time of the American Revolution, then, there was a complex triangular structure, with private individuals, political institutions («state»), and religious institutions («church») all interacting. So the term «church-state relations» meant, more than ever, an endlessly complex set of changing relations among all the different forms of religious and political life.

But there was a growing belief in the colonies that the private individual had highest priority, that the main role of the state was to protect the individual’s rights, including the right to decide on one’s own religion.

The colonists who joined the Revolution against England all agreed on one thing: the English political system was a tyranny, and the Church of England was part of that tyranny. So there was growing fear of the very idea of an established church.

It was only natural, then, that the new United States would want to protect its citizens from an established church. So the first words of the Bill of Rights said that «Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

But there was no clear agreement then, as there is none now, about exactly what those words mean.

Some see the two clauses making two opposites points. «No law respecting establishment of religion» makes it illegal to force people to practice  a religion; «no law prohibiting free exercise» makes it illegal to stop people from practicing religion. The «no establishment» clause protects the people and the government from religion. The «free exercise» clause protects religion from the government and the will of the majority.

But some say that both clauses actually make the same point: They both protect individuals from the federal government. The government cannot impose a religious institution on any individual, nor can the government restrict any individual’s religious life. In fact some religious institutions supported the 1st amendment when it was ratified and refused to take any support from the government because they feared such support would entitle the government to impose controls upon them.

The debate about the meaning of the 1st amendment and the intentions of the founders still rages on because they did not bequeath to us any single consistent view on church and state. They all claimed to be Christian. But they had many different ideas of what it meant to be Christian. Each individual could hold what we might see as contradictory views and practices.

To take one important example: Thomas Jefferson created the image of a «wall of separation between church and state» and wrote powerfully about the need to protect the religious freedom of every individual. Yet in the Declaration of Independence he based the entire political philosophy of the new nation on the idea that all men are endowed by their Creator with certain unalienable rights. Without God, Jefferson’s whole political philosophy makes no sense. Jefferson was also devoted to the teachings of Jesus, but only as he understood them; he even created his own version of the Gospels. Jefferson also supported, on occasion, legislation to create public prayer days and to punish people who broke Sabbath laws.

If we cannot expect logical consistency even from Thomas Jefferson, we certainly can’t expect it from the founding fathers as a group.

The 1st amendment was the product of political compromise among the founders. So perhaps it is best to see it as the beginning of a conversation or debate about the relation of political and religious life. Perhaps many of the founders knew that all they could agree on was the need to continue the debate.

Though the founders disagreed on what it meant to be Christian, they all assumed that some version of what each one saw as the «basics» of Christianity was more or less necessary as a foundation of an orderly society. Most of them assumed that Christian values were the basis of political liberty.

Even those who were wary of Christian bias would probably have agreed with Justice Anthony Kennedy, who wrote the majority opinion in the recent Greece case:

«Prayer is but a recognition that, since this nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define.»

So most of the founders saw no contradiction between the federal government guaranteeing freedom of religion and the states having established churches that could get special privileges from government, provide prayers for political occasions, and dictate the teaching of religion in schools

But by the late 18th century all the states had so much diversity that the power of established churches was rapidly fading. Massachusetts was the last state to end its established church, in 1833. By the 19th century, then, Americans did not merely believe in the right to dissent from the dominant church. They assumed that there would no longer be any dominant church.

Yet the 19th century was dominated by one religious view: evangelical Christianity. Evangelicals emphasized individual experience as the basis of religion. So religion became, more than ever, a matter of individual choice, which led to the creation of many new churches. But the evangelical fervor also strengthened the idea that all Christians share basic values in common, and that these were the core values of the American way of life — a view that would surface again in some 20th century Supreme Court decisions.

For evangelicals, the «wall of separation» meant that everyone was free to influence the government as much as possible according to their own version of Christian values, with the goal of making America the kingdom of God on earth. For some that meant causes we would consider liberal, like free public schools for all and the abolition of slavery. For some it meant causes that we would call conservative, like prohibition of alcohol and teaching the Bible in public schools. Many felt comfortable supporting all these reform movements.

From the 1840s on large waves of Catholic immigrants came to the U.S.. They learned to accept religious pluralism and reject the old Catholic tradition of one universal church for everyone. But they created their own schools, raising new questions about state support for religious education. These problems, like nearly all problems of church and state in the 19th century, were dealt with at the local and state levels.

After the Civil War, the 14th amendment made all states subject to rule by the federal constitution, opening the way for federal courts to apply the 1st amendment and rule on church-state issues. In 1879 the Supreme Court issued its first opinion directly dealing with church and state. It ruled that the government could forbid Mormons from practicing polygamy. The Court cited words written by Jefferson indicating that the wall of separation prevents the government only from controlling religious beliefs. But the government could forbid behaviors it deemed harmful to society.

However it was not until the 1940s that the Supreme Court began addressing the church-state question in earnest. By that time the federal government was playing a much larger role in the life of every American, while a slowly rising tide of secularism was undermining the notion of America as a Christian nation. For growing numbers of Americans, «the American way of life» meant a dedication to pluralism, diversity, and the fullest protection of individual rights. These factors combined to bring many issues related to religion before the Court.

In 1940 the Court took on the case of Jehovah’s Witnesses who argued they should be able to go door to door without a state license. The Court agreed, declaring for the first time that the 1st amendment’s «free exercise of religion» clause applied to local and state governments as well as the federal.

In the same year, though, a group of Jehovah’s Witnesses argued that their children should not be required to salute the flag in school because it violated their free exercise of religion. The Court ruled against them. Then two years later, in an almost identical case, it ruled that the Jehovah’s Witness children did not have to salute the flag.

Why the abrupt turnaround? There is some evidence that the Court was influenced by a wave of criticism of its first decision from scholars and newspapers, and also by dismay over a wave of anti-Jehovah’s Witness prejudice after the first ruling. This case reminds us that the Court is never making its decision in some abstract realm of pure legal rationality. It is always, to some extent, a barometer of the climate of public opinion.

In the Everson case of 1947 taxpayers argued that their town, which paid for children’s bus rides to public school, should not pay for Catholic children’s bus rides to Catholic school. Writing for the majority, Justice Hugo Black penned a famous, stirring defense of the wall of separation, arguing that the 1st amendment’s «no establishment of religion» clause applied to local and state as well as federal law. This became an accepted principle of later Court cases. Yet Black and the majority decided in favor of the Catholic children getting public money because it was going to them as individuals, not to the church.

This case, and the Court’s reversal in the Jehovah’s Witness cases, foreshadowed the history of church-state cases ever since then. There has been no consistent pattern, but rather what Justice Robert Jackson called a «winding, serpentine» wall of separation, full of all sorts of unpredictable twists and turns in the Court’s views.

Vagueness often prevails. In the Lemon case of 1971, the Court ruled that no law may «have the primary effect of either advancing or inhibiting religion» and left it for later Courts to figure out what that means.  Now the Court has added another contorted brick to that wall, by a 5-4 margin, as has so often been true in recent church-state cases.

The Court still reflects the climate of public opinion, which remains divided and uncertain about the proper relation of religious life to the body politic and the lives of individuals, or what we have come to call «church and state.» So the debate initiated by the 1st amendment goes on — which may be just what the founders intended.

Ira Chernus is professor of Religious Studies at the University of Colorado, Boulder.


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