A Different View of Our High Court, Part II

THE OPEN MIND
Host: Richard D. Heffner
Guest: A. Leon Higginbotham, Jr.
Title: A Different View of Our Courts…Continued
VTR: 1/13/95

I’m Richard Heffner, your host on The Open Mind. And this is the second of two programs with A. Leon Higginbotham, Jr., who two years ago retired from the federal bench as Chief Justice Emeritus of the United States Court of Appeals for the Third Circuit. Judge Higginbotham and I began our program last time by discussing an intriguing new publication of the Supreme Court Historical Society entitled “The Jewish Justices of the Supreme Court Revisited.” Ultimately, of course, that discussion involved us in an examination of race as well as religion on the high court. We carry on today.

Judge Higginbotham, last time we were talking about Clarence Thomas, and I was asking you how you accounted for the fact that Justice Thomas has ruled and opined in a way that you find unacceptable in terms of his status as an African-American. And you were offering an interpretation. What was that?

HIGGINBOTHAM: Well, I guess the problem cannot be explained merely by looking at the muted language of the law. I think it has psychological components. In some way Clarence Thomas seems to be a victim of racial self-hatred.

Now, let me give you a classic example. In 1987, on the 200th anniversary of the Constitution, the bicentennial, Justice Marshall wrote a thoughtful article – it couldn’t have been too radical; it was published in the Harvard Law Review — on the bicentennial. He talked about what perspective one should have. And in it, what Justice Marshall says is that while the beginning was important, the greatness about America was the evolutionary aspect. So therefore it was the Thirteenth Amendment of 1865, the Fourteenth Amendment of 1868, the Fifteenth Amendment of 1868, the Nineteenth Amendment, which gave women the right to vote, that these amendments are what made us the truly great nation that we have the potential to be. And Justice Thomas then, at that time he was with EEOC, wrote an op-ed piece – now, this is under his name — and he condemned Justice Marshall for criticizing the Forefathers. Now, therefore, one has to say, “Why do you, Clarence Thomas, get aggravated because Justice Marshall says Thomas Jefferson, George Washington, and James Madison had slaves?” And the only reason why you can be upset and condemning Thurgood Marshall for stating that truth is that you have started to identify with the victims, so that in some way something curious has happened in Clarence Thomas’s mind. And it’s this: he’s been working with Reagan and Bush so long that he looks at the corridor of history as if, in 1776, that he would have been the confidant of Thomas Jefferson, or the confidant of James Madison. And therefore, when they’re criticized he has to come to their defense.

Now, the truth of the matter is that had he been living then he wouldn’t have been invited to Philadelphia on July 4th, 1776; he would have been planting the corn and the tobacco for Thomas Jefferson. So that when you see him in 1987 criticizing Thurgood Marshall for talking about slavery, then you know that something’s gone on in the man’s mind. And it’s that mindset about which I think explains why, in a whole series of matters, he has voted so consistently against the interests of Black people.

`Now, we were talking earlier about prison and Eighth Amendment problems. You can look at that in voting. A case comes down before the United States Supreme Court: Shaw v. Reno. Now, there is major article on this in Fordham Law Review. It’s an issue as to whether it is constitutionally permissible for the State of North Carolina to take race into consideration in the formation of the congressional districts. Now, we know that they can do it by rule, we know that they can do it for a variety of other reasons. Now, can you take race into consideration? And the Supreme Court, in a five-to-four decision, says that this may cause a constitutional problem, and they remanded the case back to the Fourth Circuit, which, incidentally, upheld this congressional redistricting. But what had happened in North Carolina? John White, the last Black member of the United States Congress in 1901, when he had been defeated at the polls through violence, through all types of manipulations, and he leaves the United States Congress and says, “This is our temporary farewell. But someday we will rise again and come back.” And he leaves the United States Congress in 1901 with tears streaming down his face. And then, from 1901 to 1992, not one Black ever a member of the United States Congress from North Carolina, even though Blacks constitute 20 to 30 percent of the population and the register. And now, finally, you have two extraordinarily competent Blacks who are, who become a member of the United States Congress, and a Duke Law professor challenges the congressional districting. The case goes off five to four. Close case, admittedly. But what is so astonishing is that you know who’s in that five? In that five is Justice Thomas. Why is it, Richard, you explain to me, that Justice Blackman from the lakes of Minnesota, who has not had this in-depth racial experience, understands the importance? How is it that the great Justice Suiter of New Hampshire, who has not had the experiences which a Clarence Thomas has had, understands it? How is it that Justice Stevens of Illinois or Justice White of Colorado all understand? The dissent by Justice White was probably his most eloquent. And it was written during his last term. Why is it that these justices understand the importance of pluralism in this country, and Clarence Thomas votes against it?

HEFFNER: Why do you make the demands you make upon Clarence Thomas?

HIGGINBOTHAM: Because… First of all, I would make the demands of all the justices. I mean…

HEFFNER: But you really don’t. You really don’t.

HIGGINBOTHAM: Well, I do. I do. Read my articles. I talk about pluralism. I talk about its importance. I talk about its values. But Clarence Thomas, I must confess, is to me more salt in the wound when I see him take a position, not occasionally, but consistently, time and time and time again. And I guess when I recognize that he got there solely because of Justice Marshall. If Justice Marshall had not given up his seat, do you think that there’s any possibility that Justice Thomas could have been nominated with his slim credentials to the Supreme Court? I guess the best example of that is Judge Calabrese, former dean of Yale Law School. A magnificent dean, I know he’s going to be a great judge, one of the finest thinkers. Here he is, dean of Yale Law School. He’s called down to testify about Clarence Thomas.

HEFFNER: And he went.

HIGGINBOTHAM: And he went. But what did he say? Read the record. Look at my footnotes. What does he say? He says, “The best thing you could say about Justice Thomas is that he’s got the potential.” Now, since when do you put someone on the United States Supreme Court because they’ve got, theoretically, the potential? And the tragedy of it is that Justice Thomas has not lived up to the potential which Justice Calabrese hoped he would. And that is why I think I probably feel that when Black people have struggled all of these years to try to get into the door… Brandeis went on the court in 1916. Cardozo in the 1920’s. Frankfurter in the 1930’s. And you’ve had this magnificent half-century of great judges. And Thurgood goes on; I think, in ‘66, ‘67. Fine justice. And after the two decades we’ve had with Justice Marshall, then we go to the bottom. And the difference between Justice Thomas and Justice Marshall is like what physicists would call the difference between zero and infinity.

HEFFNER: You know, Thurgood Marshall was here at this table long before he went on the bench. And, as you do, I remember him with not just great fondness but enormous admiration. I don’t think you’ll ever forgive Justice Thomas for his attack on Thurgood Marshall at the time of the bicentennial.

HIGGINBOTHAM: Well, I’ll tell you what, I certainly will if he becomes as enlightened as Justice Suiter, if he becomes as thoughtful as Justice Blackman. I will not only forgive him, I will write him a letter of apology. But until that day arises, I’m not prone to forgiveness.

HEFFNER: Now, you’re going to make these same demands, do you make the same demands upon women who sit upon the high court?

HIGGINBOTHAM: Well…

HEFFNER: That they vote as women?

HIGGINBOTHAM: Well…

HEFFNER: You want Justice Thomas to vote as an African-American.

HIGGINBOTHAM: No, no, no, no, no, no. No. No. No.

HEFFNER: No?

HIGGINBOTHAM: No. No. Clarence Thomas is an African-American.

HEFFNER: Right. You want him to vote as such.

HIGGINBOTHAM: I want him to vote with a sensitivity to that. And I would hope that women who go on the court would have some sensitivity to the whole issue as to what’s occurred to women in this country. And what we’re always dealing with is that magnificent phrase Justice Cardozo used in “The Nature of the Judicial Process.” And Cardozo talks about the “interstitial spaces of the law.” And what he meant by the “interstitial spaces” is that you get to a point very, very often where there is no clear, undisputed answer as to whether one must go one way or the other way. And at that point values have everything to do with it. And I would hope that women would bring into their adjudication some understanding of the plight that women have sustained, and evaluate that within that context. I think I saw some of that in Justice O’Connor in Casey versus Planned Parenthood.

HEFFNER: And if she hadn’t voted the way she had?

HIGGINBOTHAM: Well, I tell you, if she hadn’t voted the way she did in that case, I wouldn’t be unduly harsh. I would only be harsh if every time a case came up involving a woman, when there’s a rational compelling argument which could be made on either side that she voted consistently against women.

HEFFNER: I hear what you’re saying. I hear what you’re saying. Do you want there to be, how do you respond to this, how do you feel about — now sound like a news reporter, holding out a microphone — how do you feel about a Jewish seat, an African-American seat, a woman’s seat on the Supreme Court?

HIGGINBOTHAM: Good question. I think you need pluralism, and over a period of time you want a substantial number of people of different groups. You’ve had nine justices on the Supreme Court who were Roman Catholic. I’m including Clarence Thomas in that. You’ve had 39 Episcopalians. Now, conceivably the President of the United State could say, “Oh, we’ve only had 39 Episcopalians. So the next five people I’m going to put in are Episcopalians.” So instead of putting in Brandeis, you put in an Episcopalian. Instead of putting in Cardoza, you put in an Episcopalian. Instead of putting in Frankfurter, you put in an Episcopalian. You run it out. So therefore, the seven Jewish justices on the Supreme Court, wiped out, never got on. But what you did was you put five or seven more Episcopalians. Now, I’m not anti-Episcopalian. But I do think that it is very, very important that in the long run of the court that there be pluralism and that there be some diversity. And it is in that context that I’m delighted that there have been Jewish justices on the court. It is in that context that I’m delighted that there has been some diversity. And it is in that context in which I’m delighted that women have gone on.

What we’ve go to do is to say, “Why is it that it took so long?” I mean, let me give you a classic example. Harry Truman, whom I have a lot of admiration for. There was a woman who was a judge on the Court of Appeals for the Sixth Circuit. And her name came up as a possible candidate for the United States Supreme Court. And the story is that Truman thought about it, and some justices on the Supreme Court said no, you know, that there were plumbing problems, and all of those. Well, the tragedy in this country, Richard, my friend, is that we started as a nation only with Forefathers. We had no Foremothers in this country. And if we had Foremothers and if we had people with the sensitivity of an Abigail Adams, who wrote a letter to her husband in 1776, and she said two points: she raised the issue of slavery, and she raised the issue of women. And she said, “Men are natural tyrants. And that unless you do something about it, we will ultimately take over.” Well, it was a threat, 1776, and you go 200 years and not one woman is on the Supreme Court until then.

I think that we’ve got a great country, and much to be proud of. But I think that we have not done, in terms of pluralism, what we should.

Now, John F. Kennedy — and as you know, I was with the Kennedy administration a million years ago — he used to often end up some speeches with a line something like this: “We love our country, though it has always been great. We love it because of what it is, and of this we’re deeply proud. But we love our country most for what, with the efforts of us all, it someday will be.” And I guess that I am pushing on what it someday will be. And I therefore integrate these questions of pluralism and making it that type of nation.

HEFFNER: Do you think the Supreme Court does literally play a major, major role in that unveiling, that revealing, that becoming of the great nation?

HIGGINBOTHAM: No doubt about it. And it’s done it two ways. It’s done it closing the door in Dred Scott, of Roger Brooktani. It did it in Plessy v. Ferguson. Now, Plessy v. Ferguson was a case which the issue was whether it was constitutionally permissible for Louisiana to require the segregation of Colored and White on trains. And in the argument before the court – and you see it in the briefs — counsel for Plessy had said, ‘Well, if you segregate on the basis of race, then you could segregate on the basis of religion. And you could therefore pass a statute where Methodists would be in one section and Baptists would be in another.’ And then he talks about hair color. “Blondes would be in one, and redheads would be the other.’ And he puts out what lawyers call “a parade of horribles.” So how does Justice Brown try to deal with this intrusiveness? And what he says is, “Well, of course it must be reasonable.” Translated, what it meant was: You can’t segregate Irish, you can’t segregate Germans, people of German origin, you can’t segregate Jews; only one group you can segregate, and that would be people on the basis of their color. And that was a tragedy in Plessy v. Ferguson in 1896, and there was a great dissent by John Harlan.

Now, why do I use Plessy v. Ferguson? Because in Casey, Casey versus Planned Parenthood, and the decision opinion by Kennedy, Suiter, and O’Connor. What do they say about Plessy v. Ferguson? That case which plagued us for three-quarters of a century. Quote, “Plessy was wrong the day it was decided.” So therefore, the Supreme Court has made an impact. There would have been no necessity for a Brown case if Plessy had not gone that way. There would not have been a necessity for that. And full of love. Justice Stewart writes a concurrent opinion and says he relies on the dissent of John Harlan. Do you know who joins him in that? Justice Rehnquist.

So that what we’ve had in this country, looking at the corridor from 1896 to 1954, are Black people struggling before the court, the portals which say “Equal Justice Under the Law,” “We want equal justice.” And we didn’t get it as a matter of doctrine until Brown. And the problem of implementation would require another program.

HEFFNER: You got it essentially because of one man.

HIGGINBOTHAM: Well, I think you got it through a group. And, you know, this is where Frankfurter becomes so important. Frankfurter, as a law professor, was a real catalyst. There were three Black lawyers, if I had to name them, who were the key. Charles Hamilton Houston was on the Harvard Law Review. William Henry Hasty, who was on the Harvard Law Review. And Thurgood Marshall, who was taught by William Henry Hasty. And when you go through the correspondence, there’s all of this correspondence between Frankfurter and them as an advocate for social change. In fact, one of his most able clerks was William Coleman, African-American, first Black to clerk in the United States Supreme Court. So that Frankfurter, particularly if you look at that era before he got on the court, he was a very critical catalyst and working with the Hastys and the Hamiltons and the Marshalls.

But what I was trying to stress in that article is a tribute to Thurgood Marshall. And you quoted it earlier. Thurgood Marshall’s impact goes so far beyond race. Because if he had not won Brown v. Board of Education, it would mean that you would have a legitimization of treating people differently in this country. And had he had not won Brown you would not have gotten the 1964 Civil Rights Act, which prohibits discrimination on the basis of religion, national origin, race, and gender. And why is it that, prior to the Brown case, great institutions like Yale, my alma mater, the undergraduate school never had women? Why is it that Princeton University never had women? What Justice Marshall did as an advocate in Brown was he raised the whole consciousness of America, dealing with the issue of disparate treatment.

Now, let me give you one final example. The distinguished president of the University of Pennsylvania is a woman. Magnificent. The distinguished president of Duke University is a woman. Now, I tell you that neither of them — and they clearly merit their positions — would be where they are today if back there in 1950 Thurgood hadn’t been arguing for equal justice for everyone. And therefore, others have won the benefits. The data suggest, if you look at my Harvard Law Review article, that women probably have benefited more than Blacks because of the changes. So that Thurgood Marshall made America potentially the type of nation which it should be. And if we had not won those cases, I think that we could be almost looked upon the way South Africa was before Nelson Mandela got there.

HEFFNER: I was intrigued – and we only have a minute and a half or so left — I was intrigued with your comment that, in fact, in numbers, other minorities probably benefited even more than African-Americans did thanks to Marshall’s work in Brown.

HIGGINBOTHAM: I think that’s clear. And, if you look at women, no doubt about it. I guess I have all of the disadvantages of law professors. I’ve got all of it in my footnotes. And I think my footnotes establish that beyond dispute.

HEFFNER: You write so compellingly about the last speech that Thurgood Marshall made. You describe so well his physical, his deteriorated physical condition then. Will he go down, has he gone down, in your estimation, as one of the truly great justices, as you began by saying…

HIGGINBOTHAM: He’s gone down as one of the truly great justices.

HEFFNER: With the exception of Clarence Thomas’s evaluation of his role.

HIGGINBOTHAM: That’s right. That’s right. I look upon him as one of the truly great justices. I think Justice Brennan, one of the truly great justices. I look at Brennan, I look at Marshall, I look at Earl Warren, I look at Stevens, I look at Blackman. These are people where a hundred years from now, when historians look on it, they will say, “They were the great ones.”

HEFFNER: Judge Higginbotham, I think that’s probably the point at which we bring our program to a conclusion. And I thank you so much for this discussion of the judicial greats.

HIGGINBOTHAM: My pleasure.

HEFFNER: And thanks too, to you in the audience. I hope you join us again next time. And if you’d like to share your thoughts about our program, about our guest today, 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.”