Justice Deferred: Race and the Supreme Court

People who are terrified by critical race theory almost always prove unaware of what it actually is: a legal studies framework that examines how race has been affected (and, in part, created) by law. It is patently inaccurate to claim that race and the law have NOT gone hand-in-hand in American history or that the effects of that relationship are not felt in the present.

This is demonstrated in a recent history book that I have mentioned in these pages before –“Justice Deferred: Race and the Supreme Court” by Orville Vernon Burton and Armand Derfner. In roughly 350 pages, it traces the intertwined story of race and law, from the colonial period to the 2020s. (Full disclosure- Vernon Burton was my grad school co-adviser and mentor.) The authors make a sobering point early in the work: for 300 years, the law was used to justify racial oppression and maintain white supremacy, and, then for four decades (the 1930s to the 1970s), it was used to fight against, and try to turn the tide of, that oppression. This was followed by another half-century (the 1970s until now) of largely walking back the gains made in that 40-year period. For the vast majority of American history, the law - as ultimately interpreted by the Supreme Court - has, in fact, served to buttress racism rather than to dispel it.

Slavery, after all, was legal for most of that time - and protected by law. The infamous Dred Scott Decision of 1857 said that even free black peoples “had no rights the white man was bound to respect.” Even when slavery was ended after the Union victory in the Civil War, Southern states had repressive slave codes and, starting after Reconstruction, legally enforced segregation which the Supreme Court upheld in Plessy v. Ferguson (1896). SCOTUS ruled in the 1820s and 1830s that Native Americans had never had the right to own their own land and that they were “domestic dependent nations” whose relationship to the United States “resembles that of a ward to his guardian.” In 1889 SCOTUS upheld the Chinese Exclusion Act of 1882, which banned Chinese people from immigrating to the U.S., saying the country had a right to prevent “vast hordes of its people from crowding in on us.” In 1922 the Court ruled in Ozawa v. United States that immigrants must be, not only white so far as skin tone, but specifically Caucasian. The following year, when Indian immigrant Baghat Singh Thind’s counsel pointed out that people from India are technically Caucasian, the Court ruled that they weren’t white enough to be U.S. citizens, Caucasian or not.

Many advances toward racial equality were then made over the following decades, especially during the Civil Rights era. However, the authors point out that, after 1970, the question became, “Are discriminatory results of a law enough for the Court to strike it down, or is proof also required that the people who wrote and passed the law intended it to discriminate?” Conservative justices in recent decades have almost always taken a very narrow view of that question, with the least latitude possible, even when they give extremely broad latitude to questions of religion or the second amendment. In other words, they have been strict constructionists only when it suits them, and not on a consistent basis - the inconsistency coming on questions of race.

The book ends by observing that American democracy is not a thing that is broken but rather a thing that is unfinished. That simple statement, whose truth seems so obvious to some, is somehow threatening to others. So threatening that, despite the historical accuracy of everything I have cited from this book, it is a discussion that would currently be illegal for high school teachers to have in Tennessee, and, if some have their way, might even be illegal in college history classes.

On second thought, maybe things are becoming broken.

--Troy D. Smith, a White County native, is a novelist and a history professor at Tennessee Tech. His words do not necessarily represent TTU.