A Different View of Our High Court, Part I

THE OPEN MIND
Host: Richard D. Heffner
Guest: A. Leon Higginbotham, Jr.
Title: A Different View of Our High Court: Religion, Race and Gender
VTR: 1/13/95

I’m Richard Heffner, your host on The Open Mind. And my guest today, A. Leon Higginbotham, Jr., who two years ago retired from the federal bench as Chief Judge Emeritus of the United States Court of Appeals for the Third Circuit, joins me today to discuss an intriguing new publication of the Supreme Court Historical Society entitled, “The Jewish Justices of the Supreme Court Revisited: Brandeis to Fortas”.

Now, no one would pretend that the presidents who have nominated, the senators who have confirmed, or the American public that ultimately has embraced the honorable justices of the Supreme Court of the United States have ever been blind to their gender or color or religion, any more than to their personal or political philosophies. But while African-Americans and women only recently have joined our high court, Jewish justices have long since made their individual marks upon Supreme Court history. And hopefully by now one can, without undue sensitivity or even caution, evaluate their contributions by way of gaining insight into whether and/or what differences likely surface on the bench because of religion, race, or gender.

When Supreme Court Justice Thurgood Marshall retired in 1991, my guest today wrote that, “To laud this great American solely for improving the options of African-Americans would be too simplistic a tribute for person who has touched so many lives.” Yet when Clarence Thomas went to the high court, Judge Higginbotham reminded him of the special responsibilities that adhere to becoming the only sitting justice ever to be called “nigger.” Well, we’ll return to that reminder, of course. But first, I want to ask Judge Higginbotham whether he would actually identify special qualities with the five Jewish justices of the Supreme Court in its historical society’s new study of Brandeis, Cardozo, Frankfurter, Goldberg and Fortas revisited, with, of course, Justice Ruth Bader Ginsberg and Justice Stephen G. Breyer yet to be visited.

Is there something special that one can legitimately, in your estimation, identify?

HIGGINBOTHAM: Well, you can do it in a variety of ways. You’re talking about seven justices out of 107. I think that if you took the five on whom this volume is focused versus the other 100, that as a composite view, the Jewish justices have been more sensitive to the issues of fairness and liberty and justice than if you took a random selection of other justices. Now, if you took what I call the “Higginbotham’s great nine,’ the Jewish justices would not be profoundly different, and some of them would not be as thoughtful as if you put up on my all-star list, I would start with Earl Warren, Hugo Black, Justice Brennan, Justice Douglas. I think I mention Warren. And if you put all of those justices together, they are no more liberal.

Let me give you my list correctly: Earl Warren, William Douglas, Harry Blackman, John Paul Stevens, Thurgood Marshall, Frank Murphy, Wiley Rutledge, William Brennan, and Hugo Black. Now, if you look at those nine, and you look at the Jewish justices, there’s no substantial disparity. In fact, those nine might be more liberal as a composite than the five Jewish justices. But if you look at the type of justices who were on the court from the time when Justice Brandeis went on in 1916, you have the Jewish justices, I think, demonstrating two qualities. One, as a group, they were extraordinarily competent. The presidents of the United States, when they chose each one of those, seemed to have had clearly in mind that we’re putting a minority justice on the court and we want that person to be stellar in every way. And that’s what happened when you go all the way from Brandeis to Breyer, in every instance. When they put other justices on the court, the court did not, the presidents were not thinking necessarily of the person being extraordinarily competent. Take, for instance, Justice McReynolds, who went on the court, and I believe was appointed by President Wilson. McReynolds is the one who, you may recall from my articles, who referred to Howard University as a “nigger university.” When McReynolds went on the court, for whatever reason he was appointed, he did not go in the court with some perception that this is, quote, “a minority,” and that he has to be better than any of the others. And I could pick a whole series of other justices who, looking at in balance, were pretty mediocre. But each one of the Jewish justices was extremely competent as lawyers, as craftsmen, and they had demonstrated that before they got on the court.

HEFFNER: So that scholarship was an important characteristic.

HIGGINBOTHAM: That’s right. And they were chosen bearing that in mind.

HEFFNER: But then you also said something about fairness. And the question of fairness does surface in this Supreme Court Historical Society text. Why? What does it mean, fairness?

`HIGGINBOTHAM: Fairness, I think, sort of goes back to that biblical commandment to do unto others as you would have done unto you. Does one have the capacity to look at the issue before and say, “If I had been the victim, would I think that I had received due process and justice and fairness?” And you get that in a whole variety of different ways. Perhaps the worst decision ever issued by a United States Supreme Court – not perhaps – in fact, the worst decision ever issued by a United States Supreme Court was a case called Dred Scott. And in that case, Roger Brooktonney, who happened to be a Roman Catholic justice, and the first Roman Catholic justice to be in the court, said that under the United States Constitution – and this is a verbatim quote – “a Black man had no rights which the White man was bound to respect.” And six other justices joined with him. And in contrast, Justice Curtis of Massachusetts and Justice McLean of Ohio challenged that. And, as you look at the two opinions, you really see values percolating. And that explains more how the court came out in that case. Another example would be Plessy v. Ferguson if you’d like to discuss that in detail.

HEFFNER: But, you know, before we talk about Plessy, again this question of fairness. You were talking about two fair justices at the time of Dred Scott. And certainty they brought a sense of humanity and a sense of fairness and a sense of decency and a sense of what this country was and should be all about, having nothing to do with minority status. Why would we expect, if we indeed do, from these Jewish justices, that they would be overwhelmingly concerned, to a person, with fairness? Because Jews had been mistreated? Because Jews had been singled out throughout history?

HIGGINBOTHAM: I think that has to be a factor. Oliver Wendell Holmes once said, in his famous Holmes Lectures more than a hundred years ago, that “A page of history is worth a volume of logic.” And anyone who is familiar with the character of history and feels it can deal with certain logical arguments and put them in an appropriate perspective. And there are other people who understood this and had this sensitivity. I mean, Earl Warren understood this. And you saw it in a whole series of events. There’s a story which a Black judge told me about Earl Warren on the University of Southern California football team. And Earl Warren, I don’t think, was as great a tackle as some people suggest he was. But when they were playing against another school, which I will not name, there was a Black back, I believe his name was Gordon, and they said, “Nigger, we’re going to get you on the next run.” And Earl Warren stood up and said, “You’ve got to get the others first.” And that just came out. And Judge Gordon talked to me time and time again what Earl Warren demonstrated on the football field saying, “Listen, I’m not going to let anyone hurt you if I’ve got a chance.” And I think that, therefore, a person like Warren sod of seems to understand these things instinctively. There are other individuals who, either because they have not had the associational experience, or because they’ve lived a particular type of sheltered or isolated life, who have more difficulty in coming to grasp with it. But anyone who’s Jewish, anyone who understands the history of the Holocaust, anyone who understands all of the injustices which they’ve sustained, it seems to me does not have to walk as long a distance to understand why unjustice and treated differently is essential to the society.

HEFFNER: Okay. Now, would you say that, in fact, that understanding, that realization, that sensitivity did surface in the decisions of these Jewish justices?

`HIGGINBOTHAM: More often than not. More often than not. The one thing you can’t do, Richard, is to call all Jewish justices as if there’s some monolitic perspective. There’s a profound difference between Justice Frankfurter and Justice Goldberg. And you see it in a whole series of issues. Justice Frankfurter was very, very much concerned about what he called “judicial restraint.” At times he seemed to be very, very much concerned to make it clear that he was not a radical. Let me give you a couple of examples. One of the most important cases argued before the Supreme Court in the 1940’s was a case called Morgan v. Virginia. It was argued by William Henry Hasty, a former student of Frankfurter, and whom Frankfurter admired greatly. And as you may know, William Hasty became the first Black judge to be a, the first Black to become a federal judge. And on this issue the question was: Was it a violation of the interstate commerce laws for Virginia to have regulations which required Black people to have to sit in the back of the bus? And the justices of the Supreme Court, in an eight-to-one decision, because of an earlier case called Hall v. DeCurr, said that that was a violation of the interstate commerce laws. No problems. But then Frankfurter writes an incredible concurring opinion, and goes on to suggest that if it is possible under certain regional compacts, that you can deal with this interstate commerce burden problem. Why he raised it I shall never know. But as I read it, he seemed to be concerned about not being viewed as radical, and being more mainstream. Never could I imagine Justice Goldberg or Justice Fortas or Justice Brandeis or Justice Cardozo having filed such a concurring opinion.

Now, it is nice for people who are minorities to suggest that, you know, that here I am, some objective individual, and I put all of these things out of the way, and my life experiences have not impacted. But sometimes, just by the very, very way you phrase an argument, it becomes clear. And the classic examples are two cases. One is Minorsviile School District versus Gubaitis, which was an issue as to whether it was unconstitutional to force children to pledge allegiance to the flag and all the religious significance. When the case first came before the Supreme Court in 1940, when Justice Frankfurter was on the court, they reversed the Third Circuit. A magnificent opinion by Judge Marris, a Quaker District judge, said, “Under the Constitution, this is not permissible.” But the Supreme Court, in an eight-to-one decision, reverses. Justice Stone, I, think, was the only one who dissented. And then, four years later, here we have the case coming up before the Supreme Court again. Now, this time the Supreme Court reverses, and they say that this compulsory taking of the oath, of forcing someone to pledge allegiance, or to be-thrown out of school, where these were not individuals who have been involved in any violence, in any disrespect, as Justice Stone said, “These are just responsible kids,” but their religious beliefs precluded them from taking that oath of allegiance. Now, does religion matter? Let me read to you how Justice Frankfurter’s dissent starts. “One who belongs to the most vilified and persecuted minority in history is not likely to be insensitive to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant, I should wholeheartedly associate myself with the general libertarian views in the court’s opinion representing, as they do, the thought and acts of a lifetime. But as judges we are neither Jew nor gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution. And he ends up by holding in dissent that there was no constitutional violation.

So, when you look at the Jewish justices, it’s extremely important that you do two things. One is that you isolate what they did prior to when they got on the bench. And then, to isolate their specific holdings after they got on the court. And Justice Goldberg, in a whole series of cases and opinions which he wrote, one of which I think was Gault, which involved the right of a juvenile to have counsel, was that a very, very different view as Frankfurter to the vitality of the Fourteenth Amendment and its absorption of fundamental rights.

HEFFNER: Well, it’s interesting, when you read the way Justice Frankfurter began…

HIGGINBOTHAM: Yes.

HEFFNER: …his dissent, because, I mean, the world knows of the comments that you have made to and about Justice Clarence Thomas. And in this absolutely fascinating piece from August 1994 which appeared in the Hastings Law School Journal, you say, ‘The Holocaust was a brutal, devastating, inhumane, unjustifiable tragedy. Everyone, be they Jew or gentile, Protestant or Catholic, Muslim or atheist, White or Black, should condemn the Holocaust. However, I think that it would be even more disturbing if persons who were the heirs of the individuals who died or were brutalized in Auschwitz and other concentration camps spoke tolerantly of religious cruelty, religious oppression, and genocide. I also feel the same way about those African-Americans who disavow their roots on fundamental matters and become participants in unjustified efforts to limit rational Black aspirations.” You seem to be saying here that, first place, there’s no way, and the second place, there is no justifiable way in which one rejects that isolated part of their lives from before sitting on the court. And by quoting Frankfurter as you do, it seems to me, in combination with this comment addressed to Clarence Thomas, you’re saying you cannot anticipate, you cannot accept the notion that someone separates himself so, or herself so, from life’s experience. Does that mean that you would expect Clarence Thomas to reflect the fact that he is an African-American as you would expect Felix Frankfurter and these others to reflect the fact that they were Jewish?

HIGGINBOTHAM: Yes. But let me refine it a little bit. I’m not saying that there’s only one African-American position, just as there’s one Jewish position. But let me give you a couple examples of Justice Thomas. There’s a case called Hudson v. McMillan, which came before the United States Supreme Court, where a prisoner was beaten, lips burst, teeth loosened, bruised under the eye, dental plate broken. The question was: Was that a violation to cruel and unusual punishment? An opinion by Justice O’Connor, she says, ‘Of course, in a civilized society, you cannot shackle a prisoner as they did, and without justification beat them without violating the cruel and unusual punishment clause.” And seven justices saw that without any question. I mean, justices who are as conservative as Justice Rehnquist, moderates like Justice Kennedy. Everyone said you can’t allow that in a civilized society. And who writes the only dissent? And that is Justice Thomas, joined in by Justice Scalia. And it seems to me that it is incredible that anyone who knows how police power has been so abused could join in writing that dissent. When he did it, The New York Times said that he was the cruelest youngest justice on the court. And I think their statement was an understatement.

HEFFNER: But you have there one African-American and one person who is not African-American, Scalia, saying the same thing.

HIGGINBOTHAM: Well, let’s put it in context. If you had to choose out of all of the justices on the Supreme Court since 1900, Justice McReynolds would be clearly the most conservative. And I think, if you had to choose the five most conservative, Justice Scalia and Justice Thomas would be in hat context. Now, don’t think that Hudson v. McMillan was aberrational. The next term there was a case of a person who was in prison where his cellmate smoked five packs of cigarettes a day. And he said, ‘This affects my health adversely.” It gets up before the United States Supreme Court as to whether he had a civil rights claim being in prison having to breathe the air from a cellmate who smokes five packs of cigarettes a day. Again, this opinion is not written by Justice O’Connor. This is written by Justice White. Seven justices say he had a cause of action. And guess what happens? Two justices say no violation of the Constitution. And he goes on to say because no serious injury has been proven. If you follow Justice Thomas’s logic in that case, this poor guy has to inhale so much smoke until he has apneumatoniosis, until he has carcinoma, and then he goes before the court and says, “Look, that’s what happened.” The Constitution can’t mean that. The seven justices, I think, were absolutely right. And think that Justice Thomas’s opinion was totally astonishing.

HEFFNER: Was Justice Thomas – and we only have three minutes left on our program now – but was Justice Thomas joined by Justice Scalia?

HIGGINBOTHAM: Scalia. That’s right. Those two.

HEFFNER: Well, you’re ticked off by the fact that an African-American can be that conservative. Is that a fair thing to say?

HIGGINBOTHAM: It disturbs me, particularly when that African-American has been the beneficiary of federal constitutional benefits. Let me go for the jugular vein. Clarence Thomas is married to, obviously, a thoughtful woman, who happens to be White. In Virginia, under the laws, under the racial integrity statute, that marriage was illegal. And in the case called Loving v. Virginia, a person was sentenced for 25 years in prison just because there was an interracial marriage. And the sentence was modified. But the Supreme Court of the United States says that’s unconstitutional. So that what it really means that his attack on the activist court, that one court opinion which says it is legal for him to be married to his wife preserves his privacy. And if you follow the states rights views, which was the unanimous opinion of the state court, Clarence Thomas today would not be on the United States Supreme Court, but could be in the penitentiary. Now, how someone who’s been the beneficiary of the protection of federal constitutional rights can now, after he’s made it and after he’s gotten the benefits, close his eyes to the vitality of that to the weak and the poor and the powerless, in my view, is incomprehensible.

HEFFNER: But is the case?

HIGGINBOTHAM: Yes.

HEFFNER: So that I would ask – We have a minute left, and I had asked you to stay where you are so that when we finish this program we can carry this on, because we’re not going to conclude it in one minute — but I would ask then how so the fact is that Clarence Thomas is an African-American, the fact is that he is deeply conservative, the fact is that he attacked the rulings of the Warren court, and the facts are, as you describe them, about what his own lot would be if the Warren court had not ruled in the matter of intermarriage as it did. Now, how do you explain it?

HIGGINBOTHAM: Well, my daughter is a clinical psychologist Ph.D. She says you explain it only by racial self-hatred. And that’s a very, very extensive theme. But to summarize it, I think that Clarence Thomas is a victim of racial self-hatred. And if you look at my Hastings article, you will see others, significant social scientists, say that you can only explain it why. And that is almost like someone who looks at the Holocaust…

HEFFNER: And denies it.

HIGGINBOTHAM: Yes.

HEFFNER: Stay where you are, and we’ll come back to this question in a moment. Meanwhile, Judge Higginbotham, thank you so much for joining me today on The Open Mind.

HIGGINBOTHAM: It’s been a pleasure, Richard.

HEFFNER: And thanks too, to you in the audience. I hope you join us again next time also. And if you’d like to share your thoughts about today’s program, please write: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts, send $2 in check or money order.

Meanwhile, as an old friend used to say, ‘Good night, and good luck.”