In the wake of George Floyd’s murder, Black writers have led a bold literary reckoning with this country’s past. . With books like Isabel Wilkerson’s Caste or Eddie S. Glaude’s Begin Again, or Caroline Randall Williams’s powerful essay “You Want a Confederate Monument? My Body Is a Confederate Monument,” they have issued a call for truth and reconciliation. It remains to be seen if the country will listen.
But this effort continues to mount, and with their book Justice Deferred: Race and the Supreme Court (Harvard University Press, 464 pages), historian Orville Vernon Burton and civil rights lawyer Armand Derfner have made an important contribution.
More disasters followed in the second half of the century, as the court played a central role in ending the promise of Reconstruction and setting the legal stage for segregation.
“Americans typically think of the Supreme Court as the guardian of both law and liberty,” they write. “Even when we rail against some of its particular decisions, Americans recognize it as the institution that ended segregation, guarantees fair trials, and protects free speech and the right to vote. But the reality is more complicated, especially in the area of race and civil rights.”
Burton and Derfner argue that most of the Supreme Court’s accomplishments happened from the 1930s to the early 1970s. Before then, the court “spent much of its history ignoring or suppressing those rights, and in the half century since the early 1970s the Court’s record on civil rights has retreated far more than it advanced.”
With clear and accesible prose, Burton and Derfner trace this disheartening story, which began during slavery and has not stopped.
In the case of United States v. Schooner Amistad, decided in 1841, the Supreme Court affirmed the rights of forty African captives who had rebelled and killed the captain of their slave ship. Citing lofty principles of justice, the Supreme Court concluded, “These negroes ought to be deemed free.” The case was an outlier. For the most part, the Justices in the 1800s allied themselves with the rights of slave owners, culminating in 1857 with the most infamous decision in the Supreme Court’s history, Dred Scott v. Sandford.
In that case, Chief Justice Roger Taney wrote a sweeping majority opinion that not only denied freedom to the enslaved Dred Scott, but ruled that no Black person could ever be a citizen of the United States. Those of African descent, he wrote, were “beings of an inferior order, altogether unfit to associate with the white race . . . and so far inferior that they had no rights which the white man was bound to respect.”
It was an assertion so extreme that, as Derfner and Burton point out, it inflamed public passion. “If the Supreme Court majority thought its pro-slavery decisions resolved all disputes over slavery,” they write, “that notion exploded in civil war.”
More disasters followed in the second half of the century, as the court played a central role in ending the promise of Reconstruction and setting the legal stage for segregation.
Immediately after the Civil War, three amendments to the U.S. Constitution sought to assure full citizenship rights for those who had been enslaved: The Thirteenth Amendment abolished slavery; The Fourteenth guaranteed equal protection under the law; and the Fifteenth established the freedmen’s right to vote.
Within a decade, the white South launched an attack against these protections through a combination of legal maneuvering and terror. Critically, if not quite explicitly, the Supreme Court gave its stamp of approval to both forms of resistance.
In United States v. Cruikshank, decided in 1876, the Supreme Court overturned the convictions of three white men in the Colfax Massacre, a violent shootout in Louisiana that killed at least sixty African Americans. Twenty years later, in Plessy v. Ferguson, the Court affirmed the legal fiction of separate but equal. For the next half century, Jim Crow was the law of the land.
In the 1930s and 1940s, often in cases brought by attorney Thurgood Marshall, the Supreme Court quietly foreshadowed a change in direction—an era of racial sensitivity that reached its apex under Chief Justice Earl Warren. Beginning with the Brown v. Board of Education decision in 1954, the Supreme Court resolutely dismantled the legal framework of segregation—in schools and public transportation, even in the matter of interracial marriage, decided in the case of Loving v. Virginia. But times change and the authors argue that the Supreme Court is now on a path of retreat.
The path is not straight. But overall, they write, there has been “a slowdown in momentum for change. . . . Under Chief Justices Rehnquist and Roberts, momentum has stopped altogether and even reversed. Most notably, in 2013 the Court held the heart of the 1965 Voting Rights Act unconstitutional, the first such ruling in more than a century.”
In many ways, this is a personal book for Burton and Derfner. Burton, an award-winning historian at Clemson University, grew up in the segregated South, and has spent his career “writing about a past that we must overcome.”
Derfner, whose parents escaped the Nazis when he was a baby, has spent an equally distinguished career challenging segregation through the courts. In these pages, they are careful to celebrate the moments of triumph—those shining departures from the overall history—when the Supreme Court has expanded the promise of democracy. But they are also careful to document the opposite.
Despite their inevitable disillusionment, they end their story with a leap of faith—a quote from Amanda Gorman, a young Black poet who sees the pursuit of justice as “something that’s unfinished.” Perhaps that is what we must believe, and the authors add their own note of hope: “New generations will continue the work.”