Monday, December 28, 2020

A Name On A Piece of Paper - by Jacques Chouinard

In 1903, Jackson W. Giles filed a lawsuit alleging that the board of registrars of Montgomery County, Alabama had engaged in widespread disenfranchisement of Black voters.  The case, Giles v. Harris, eventually landed on the desk of Supreme Court Justice Oliver Wendell Holmes, a Union army veteran who fought in the fiercest battles of the Civil War.

Holmes refused to fashion a remedy that would protect Mr. Giles’s voting rights.  Holmes predicted that the Montgomery County registrars would ignore a contrary ruling, conceding the Court’s authority in the face of Southern intransigence.  In a frank admission of judicial incapacity, Holmes wrote, “If the conspiracy and the intent exist, a name on a piece of paper will not defeat them.”  With that, the Court excluded Jackson Giles and thousands of Black Alabamians from another piece of paper: Montgomery County’s voter roll.

Holmes’s opinion in Giles admits a rarely spoken truth in American law: the judiciary depends on the other branches of government to enforce its rulings.  Holmes refused to exercise the Court’s power when it became obvious that Montgomery County would ignore a judicial order curbing racist voter restrictions.  That Montgomery County was engaged in a campaign to deny Black people the vote in post-Reconstruction Alabama made no difference to Holmes; tacit surrender of the Court’s independence was preferable to the ignominy of an unenforced holding.  Holmes implicitly endorsed Southern oppression; the Civil War veteran would not sign a piece of paper that white Southerners would ignore.

Sixty years later, Justice William Brennan was assigned the majority opinion in Baker v. Carr, another voting rights case.  The facts were depressingly familiar.  A Southern state—Tennessee this time—had refused to reapportion its legislative districts for sixty years, even as predominantly Black districts grew in population.  The result?  Black people in urban districts had far less political power than rural whites.  Disenfranchisement was alive and well in Tennessee.

Unlike Holmes, Brennan recognized the value of judicial authority.  Words on a page carry significant weight when authored by a Justice of the Supreme Court, even if those words might not be enforced.  Brennan was acutely aware of the Court’s power to influence not only legal thought, but the lives of the nation’s most vulnerable citizens.  Brennan confronted voter disenfranchisement head on, despite the political questions inherent in redistricting disputes.  Baker’s holding restrained the impulses of racist Tennessee legislators, using the Constitution to defend individual liberty from Southern oppression.  In stark contrast with Holmes, Brennan concluded that voter disenfranchisement could be remedied by an independent judiciary.  The Court’s authority prevailed: Baker was enforced, and Tennessee’s legislative districts were redrawn.

Americans deserve a judiciary that protects their rights—that respects their inherent human dignity.  Judges must recognize that people are more than names on a page.  The judiciary must possess the moral clarity to acknowledge its own power, and more importantly, its own independence.

https://lawprofessors.typepad.com/racelawprof/2020/12/a-name-on-a-piece-of-paper-by-jacques-chouinard.html

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