"Equal Justice Under Law" is inscribed on the front of the United States Supreme Court, but in practice, the law has bent over time to reflect the attitudes of society and justices. What is the history of critical civil rights cases in the United States? A professor, researcher and author share his expertise in this crucial look at groundbreaking civil rights cases.
ACTEC Fellow Sandra J. Chan interviews Professor Christopher W. Schmidt about America's long and continuing march to equality through the lens of critical Supreme Court cases, which in some cases were reverse in later judgments.
Terrence M. Franklin: A few weeks ago, the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization took away abortion as an American right. The decision highlights the complicated history and current status of civil rights in this country. Today, we are joined by an esteemed law scholar, Professor Christopher Schmidt, who discusses cases that have raised issues of discrimination and inequality. ACTEC Fellow Sandra Chan leads this conversation with Professor Schmidt.
Sandra Chan: It is my privilege to introduce to you Christopher Schmidt. Today, Chris will be speaking with us about some of the important civil rights cases we all should know.
Chris is a research professor at the American Bar Foundation, where he researches US, legal, constitutional history. His research focuses on the relationship between intellectual history, social movements, and constitutional change in the 20th century. He is also editor of the ABF’s Law and Social Inquiry Journal and a professor of law at Chicago-Kent College of Law.
Having recently authored the book Civil Rights in America: A History, Chris is uniquely qualified to speak with us today. If you would like more detailed information about Chris’s prolific work, please visit this video’s webpage at actec.org/diversity.
Chris, can you help us identify what is a civil rights case?
Professor Christopher Schmidt: Sure. And thank you so much for that introduction. So, this is a key question. If we’re going to talk about civil rights cases we all should know about, we need to figure out what it actually means to be a civil rights case. And the answer to that is actually not an obvious one.
Although we often use the term civil rights and attach it to all sorts of cases and pieces of history and parts of government, what exactly it means to be a civil rights issue, there’s been different views on that. And people come to different conclusions about that across history, and we still argue about it today. In fact, that’s one reason I wanted to write that book about civil rights, is I found it really intriguing that this term is so commonplace but also very contested.
But I do think if we want to try and get a common definition, what do people generally mean today when they talk about a civil rights case, I think it’s something like this. A civil rights case would be a case that challenges some form of discrimination against a particular group of people, particularly, groups that have been historically oppressed or politically disempowered.
Sandra Chan: Well, taking this as our working definition, what are some of the cases that illustrate how our courts of approached a particular civil rights issue?
Professor Christopher Schmidt: Great. So, I’m going to give you a list of cases, but before I do so, let me just tell you a little bit about my selection process. One is largely for convenience’s sake. I’ve limited the cases to cases of the US Supreme Court. I do think these are probably the most recognize cases and perhaps in some ways the most significant cases. But there’s lots of case law beyond the Supreme Court that also deals with civil rights issues.
I’ll also be presenting my cases as five thematically connected pairs. My goal by using these pairings is it either highlight key changes and how the court has approached or particular civil rights issue, or to try to better capture the scope and complexity of a given civil rights issue.
And lastly, I want to make sure a note that I’m leaving out some big categories of case law that could be categorized as civil rights. So, for example, I’m not going to be talking about voting rights or criminal justice, both topics that are civil rights issues, both topics that simply deserve more time. They deserve a discussion of their own. So, we’ll put those aside for now and focus on civil rights issues other than those categories. So, with that let’s dive in.
The first pairing of cases I have, I’m going to start off with the oldest case of my list, which is a case that goes back to 1883. And it’s called appropriately enough The Civil Rights Cases. I’m pairing this case in 1883 with a case from 1964 called Heart of Atlanta Motel v. United States. And both these cases decided almost a century apart dealt with basically the same issue, which is Congress had passed a law – they called that law Civil Rights Law – and in both cases, Congress’s law primary intended to prohibit racial discrimination in access to public accommodations, things that like hotels, and motels, and restaurants, and things like that.
Congress had passed a law back in 1875, so the court reviewed that in the 1883 case. In that instance, they actually said it’s unconstitutional. It said, “Congress lacks the authority to pass a law prohibiting racial discrimination in public accommodations.” In the second case, the one in 1964, the court revisited the same issue. In this case the Congress had just passed a law, the 1964 Civil Rights Act, which included a provision prohibiting racial discrimination in public accommodations across the country. And this time, they came to the opposite conclusion. They said that Congress, in fact, had the authority to pass this particular law.
So, a few takeaway from this pairing of cases. One is that it’s important to emphasize that courts of far from alone in protecting civil rights, and this these cases, courts were actually the secondary players, right. The key actors in these cases were not courts, but legislatures. It was Congress – Congress passing these laws. So, sometimes a civil rights decision involves the court stepping aside. The court allowing other institutions, other actors to take the initiative.
So, we’re going to see some civil rights cases where the court is taking the initiative. But in this pairing of cases, it’s the legislature that take the initiative, and the court’s role is to judge that law. And again, I think they play their most important role protecting civil rights this this instance by simply allowing the legislation to take effect.
This issue about the relationship of courts to Congress when Congress is attempting to protect civil rights has been very much in the news recently, particular around the case called Shelby County v. Holder in 2013, which the Supreme Court struck down a key provision of the 1965 Voting Rights Act. And it’s a very couldn’t controversial decision. And for a lot of people, their frustration with this one was that the court was taking away the ability of Congress to do a particular civil rights protection.
In some ways harkening back. Some people said it was very similar to what the court was doing back in the late-19th century and different from what the court had done in the 1960s, where they pretty much across the board upheld these major acts of protecting civil rights when Congress passed these laws.
Next pair of cases. This is a pair of cases which is probably going to be most familiar to our viewers. This is a pairing of Plessy v. Ferguson in the 1896 case and Brown v. Board of Education in 1954, probably the most famous of all civil rights cases, the Brown case. The 1896 Plessy case was a case in which the Supreme Court reviewed a state law requiring racial segregation. In this case it was taking about rail roads. And it upheld that law and said that, “A state law that requires racial segregation does not violate the Equal Protection Clause of the 14th Amendment,” the key provision that protects civil rights in the constitution.
Move ahead to 1954, Supreme Court comes to app opposite conclusion. And it’s saying that when a state has a racial segregation policy, in this case having to do with public education, that that in fact does violate the 14th Amendment, the Equal Protection Clause. And very soon after the Brown case in 1954, the court would extend the reasoning of brown beyond public schools to any official public facility or public action. Basically, racial segregation was unconstitutional, was dead as official policy after 1954.
So, important things to think about when looking at Plessy and Brown, putting them together. One is, what changed? Why in 1896 get this so wrong? And why in 1954 were they able to get it right? And put more generally, this is a question about, well, how does civil rights change even happen? And let me just highlight a few key developments that occur between 1896 and 1954.
What are the efforts of lawyers, litigation campaigns? The Brown decision was built on the effects of a concerted group of lawyers who were dedicates to getting rid of racial segregation and using the courts to do this. The NAACP was leading that charge, and leading the NAACP lawyers team at this point was Thurgood Marshall, who would go on to be a member of the US Supreme Court in 1967.
Another factor you need to recognize that changed from 1896 and 1954 are politics change. So, there’s political support for fighting against Jim Crow, fighting against segregation. That existed in the 1950s, which simply didn’t exist in the 1890s. And also public opinion. Public opinion was not fully supportive of Brown v. Board of Education, but it was divided. Whereas, public opinion in the 1890s was much more antagonistic or simply ambivalent, or didn’t really care about the issue of racial segregation, particularly in the South.
So, these things change, right. So, one thing about how civil rights change take place, it takes place by the efforts of individuals, of activists and lawyers. It takes place by broader changes as well – changes in the political atmosphere, changes in public opinion. That’s important to keep in mind.
My next pairing of cases. These are cases that are designed to emphasize the limits of civil rights protection, in particular, the limits of the equal protection clause as a tool for protecting civil rights. The first case is Washington v. Davis, which was decided in 1976. I’m pairing that case with a case called McCleskey v. Kemp from 1987.
In the Davis case, we have a challenge to a qualifying test for Washington DC police officers that had a clear racially disparate impact, in that black candidates who took the test failed at much higher rates than white candidates. The case itself didn’t include a direct allegation of discriminatory intent, meaning they couldn’t locate a particular decision-maker who employed a policy as a way to discriminate against African-Americans. It just focused on the impact of the policy. The test itself had this effect that made it much more difficult to diversify the DC police force.
The court in this case held that a claim that’s based solely on disparate impact is not a valid race discrimination claim under the Equal Protection Clause. So, in other words, policies in which there are clear racially disparate effects but no intent, or at least no showing of intent, don’t get the same careful review that policies get when there’s actually that showing of racially discriminatory intent.
Second case, McCleskey case, 1987. McCleskey was a black man who was sentenced to death for killing a white police officer, and he challenged his death sentence as a product of racial discrimination. As evidence of this discrimination, he relied on a statistical study that showed clear racial disparities in the death penalty. Black defendants were more likely to receive the death penalty than any other racial group. And black defendants who killed a white person were the most likely to receive the death penalty.
The court in this instance held that it will not find an Equal Architecture violation until you can have a showing of racial discrimination against that particular defendant. So, the defendant himself who to show that there’s this active discrimination during the course of the trial that produced a discriminatory sentence. But because this was an argument that was based on statistical evidence, the court said that that’s not enough to show it.
Takeaway for these two cases, the David case ask McCleskey case, civil rights protections and particularly civil rights in which the Equal Protection Clause is the tool that’s being used to advance those claims, they’re limited in their ability to challenge entrenched patterns of racial inequality, what today we often refer to as structural racism.
Sandra Chan: Great. This historical analysis is so interesting. But what makes these cases so important for us to know now?
Professor Christopher Schmidt: There’s a few things I think we can think about by walking through these cases and putting these cases together. One is we want to recognize that the Supreme Court has often decided very important civil rights cases that has advanced civil rights by their decisions, but they haven’t always, right. And that’s one important thing about putting The Civil Rights alongside the Heart of Atlanta Motel, by putting Plessy alongside Brown. The Supreme Court gets it right; the Supreme Court also gets it wrong. And sometimes the Supreme Court has corrected itself; and other times some people think that maybe they’ve gotten it wrong and have yet to correct themselves.
A lot of people look at the David case and McCleskey case as instances in which the court has an interpretation of the Equal Protection Clause that maybe could be broadened, and maybe a different interpretation could be more effective at dealing with civil rights issues, with racial inequality, at least in its modern form in which it’s not often traceable to direct acts of racial discrimination, right. That was very effective back during the civil rights era when there were a lot of people in the United States who openly embraced racism, white supremacy.
I get situations in which we clearly haven’t rid ourself of that. We have situations in which racial inequalities are much more embedded in practices that we have. And then the question about how do you actually get at those? How do you actually tackle those? That’s more difficult. I do think civil rights cases is an imperfect tool to get at those. But certainly we can think about ways in which we could do better, how the courts could do better in using the law to try and protect civil rights.
Sandra Chan: Yes, thank you. So, we’ve talked about cases relating to racial discrimination. Is there another group of cases you want to discuss with us and why?
Professor Christopher Schmidt: Yeah. So, the next two pairings I have are going to move beyond discrimination based on race and look at other forms of discrimination. My next pairing’s going to look at discrimination based on sex. So, these two cases – first one is Reed v. Reed, decided 1971, and the second one is United States v. Virginia, decided in 1996. Like I said, these cases deal with expanding of civil rights to protections for women.
The first case, Reed v. Reed, 1971, was the very first case in which the US Supreme Court struck down a sex-based classification as a violation of the Equal Protection Clause. But this point, the court had reviewed acts of discrimination against women, basically laws the treated men and women differently, laws that disadvantaged women when they treated them differently. And instead, it’s now a violation of the Constitution.
1971, they start to look at this issue differently. And the Reed case initiates a long line of cases in which the court applies closer scrutiny to policies that applied differential treatment to women and men, and this line of cases culminated in this 1996 case of United States v. Virginia. In which, after the Virginia case, the Supreme Court applies Equal Protection Clause in a quite rigorous way – not quite as close of application as they would if it’s a race discrimination claim, but pretty close to that in terms of looking at sex discrimination claims.
A really neat thing about this pairing is that it shows a key role played by one individual particularly, who’s Ruth Bader Ginsburg. Ruth Bader Ginsburg was a lawyer at the time of Reed v. Reed. And she had worked on the drafting of the briefs that were submitted to the court arguing for a more expansive reading of the Equal Protection Clause to protect women back in that case in 1971. Through the 1907s, she was a lawyer working for the American Civil Liberties Union, advance a cause of equality for women through litigation, through constitutional litigation.
Then, of course, she gets on the US Supreme Court in the 1990s. In 1996, she has the opportunity to write the opinion of the court in this United States v. Virginia case, which really takes the next step in expanding protections against discrimination based on sex under the Equal Protection Clause. So, she sort of had this role that she played throughout this long story, which shows this slow development but quite steady development of strengthening protections of civil rights in these cases under the Equal Protection Clause.
The other case – and this is going to be the last pairing I’m going to offer – looks at discrimination based on sexual orientation. Two cases here, Loving v. Virginia, decided 1967, and Obergefell v. Hodges in 2015. So, the Loving case in 1967 is a race case that dealt with discrimination laws that discriminated against people who wanted to marry people of different races, right. So, a number of states still had on their books at this point laws prohibiting marriage between races, prohibit marriage between white people and people who are nonwhite.
The Supreme Court struck this down in 1967 and said it’s a violation both of a right to be free from racial discrimination as well as a violation of protections of a fundamental right because the court in that case said that marriage is a fundamental right. And if government wanted to regulate marriage, it has to have very good reasons for doing so. Then we can move forward to 2015, and this very same rationale is applied to discrimination based on sexual orientation.
So, in the Obergefell decision of 2015, the Supreme Court struck down state limitations, state prohibitions on same-sex marriage. So, Obergefell said that it is a violation of the Constitution to discriminate against people based on their sexual orientation if they want to get married to someone of the same sex. And that’s also a violation of the fundamental right to marry. So, the very same principles used in the race cases were then expanded to discrimination against database and lesbians, and the right to same-sex marriage was protected in that 2015 case.
So, in both the Reed case, Virginia case as well Loving v. Virginia and Obergefell, we see this trend, this idea that protections of civil rights for one group can then be built upon and expanded for protections of other groups. And in particular, you think about the back freedom struggle, the Civil Rights Movement of the 1950s and ’60s which focused largely on racial discrimination that raised a foundation stone for subsequent civil rights claims by women, by gays and lesbians to build upon those claims to expand those rights to different groups. We see these in these cases.
Sandra Chan: These pairings and your analysis of them are just fascinating. But can you tell us a little bit about what is happening around Roe v. Wade and if that case is a civil rights case?
Professor Christopher Schmidt: Yeah. So, I think Roe v. Wade is generally not thought of as a civil rights case, a classic civil rights case. And that’s largely because of the way Roe v. Wade was written and that it was written as a right based upon a right to privacy, or a right to physical autonomy, a right to liberty of some sort. And generally, when we think about those kinds of rights, we put them in a different category. We often talk about those as civil liberties, right, because civil liberties are the kind of rights that anyone would want to have protected. Whereas, civil rights is more about targeting particular groups.
But as we’re looking at the right to abortion, and as we’re potentially seeing a dramatic upheaval in this right, a lot of people are thinking about ways in which we can maybe reconceptualize the right, think about other ways in which we could think about why the right to abortion should be protected. And some people are suggesting that a civil rights frame would actually be a more effective way of protecting and promoting this right, thinking about it not just as a right that’s based in individual privacy and autonomy, but also as a right that protects equality, the of women in society, protects against discrimination against women in society.
So, if you think about the right to abortion as an equality-promoting right, think about the right as something that’s based in a long line of precedence going back to Reed v. Reed and United States v. Virginia, then we have a different lineage that we can connect it too, right. So, we don’t need to think about it as all one or all the other, but maybe it can be both. It can be a right that’s based on privacy and autonomy as well equality. And there we see the value of the civil rights frame for an issue as being potentially a way of reconceptualizing and perhaps strengthening a claim. So, there’s some people thinking about abortion in that context as well.
Sandra Chan: Thank you for that. In the few minutes remaining, what are the big civil rights cases the Supreme Court will be facing in the near future?
Professor Christopher Schmidt: So, the Supreme Court has a very big civil rights case on its docket first next term. So, it should be hearing arguments in this case in late-2022. And it has to do with affirmative action in higher education.
Affirmative action in higher education is not a new issue for the court. They’ve decided these cases going back to 1978. There’s a case called Regents of California v. Bakke. They revisited the issue in the early part of the 21st century in a case dealing with University of Michigan. And they dealt with more recently some cases coming out of University of Texas.
In all these instances, the court has ultimately said that universities can use race as one factor in their admission decisions, but they need to use it very carefully. They need to have a holistic analysis in which race is never the single deciding factor, but it’s one factor among many. But if they use it carefully for purposes of promote racial diversity in the classroom and on campus, then it can be used.
They particular conclusion, which has been law for 40-plus years, has always been challenged. But it’s under particular fire now with these new batch of cases. And we have cases coming challenging the affirmative action policies out of Harvard University and University of North Carolina. So, in some ways, we’re simply revisiting an old issue, and we’re revisiting an old issue because there’s some changing composition in the court. And there’s a question about whether the new court might actually reconsider this long line of precedent in which the court has said you can use affirmative action in a limited manner.
The cases also do have something of new twist in that the plaintiffs in past cases have generally been white applicants who have been denied admissions, and then they claim some form of discrimination. The plaintiffs in the more recent cases are Asian-American applicants saying that they’ve been discriminated against. So, we do have this new question about whether nonwhite plaintiffs have a different claim, a stronger claim of potential racial discrimination in these cases.
So, in these case, the court will be revisiting an issue they’ve looked at a lot of over the last 40-plus years, but also there will be some sort of new issues that also arise within these cases.
Sandra Chan: Well, I’ll look forward to seeing what happens with that.
Thank you so much for speaking with us today. I know we weren’t able to discuss all of the civil rights cases we should know about. But you have furnished us with a list of those cases, and that list will be available at this videos webpage. Thank you again.
Professor Christopher Schmidt: Thank you.
ACTEC Fellow Terrence M. Franklin: Today’s video shows us that Supreme Court rulings have sweeping impacts on how we live our lives as Americans. Having a basic understanding of past decisions of the Supreme Court is critical not only for lawyers but also for anyone who cares about protecting the rights of American citizens. Educate yourself. Know your rights, so you can decide how you will act when they are under threat.
Please visit ACTEC, actec.org/diversity for more information and resources on this topic and make sure you subscribe to ACTEC's YouTube channel to be informed of new videos as they become available.