Justice Deferred: Race and the Supreme Court

by Orville Vernon Burton, Armand Derfner

Overview

“[A] learned and thoughtful portrayal of the history of race relations in America…authoritative and highly readable…[An] impressive work.”
—Randall Kennedy, The Nation

“This comprehensive history…reminds us that the fight for justice requires our constant vigilance.”
—Ibram X. Kendi

“Remarkable for the breadth and depth of its historical and legal analysis…makes an invaluable contribution to our understanding of the US Supreme Court’s role in America’s difficult racial history.”
—Tomiko Brown-Nagin, author of Civil Rights Queen: Constance Baker Motley and the Struggle for Equality

From the Cherokee Trail of Tears to Brown v. Board of Education to the dismantling of the Voting Rights Act, Orville Vernon Burton and Armand Derfner shine a powerful light on the Supreme Court’s race record—uplifting, distressing, and even disgraceful. Justice Deferred is the first book that comprehensively charts the Supreme Court’s race jurisprudence, detailing the development of legal and constitutional doctrine, the justices’ reasoning, and the impact of individual rulings.

In addressing such issues as the changing interpretations of the Reconstruction amendments, Japanese internment in World War II, the exclusion of Mexican Americans from juries, and affirmative action, the authors bring doctrine to life by introducing the people and events at the heart of the story of race in the United States. Much of the fragility of civil rights in America is due to the Supreme Court, but as this sweeping history reminds us, the justices still have the power to make good on the country’s promise of equal rights for all.

Product Details

ISBN-13:	9780674295445
Publisher:	Harvard University Press
Publication date:	05/01/2024
Pages:	464
Product dimensions:	6.12(w) x 9.25(h) x 1.25(d)

About the Author

Orville Vernon Burton is a prizewinning author of many books, including The Age of Lincoln. He is Judge Matthew J. Perry Chair of History at Clemson University and Emeritus University Scholar at the University of Illinois. Inducted into the Morehouse College Martin Luther King Jr. Collegium of Scholars, he is also a recipient of the Southern Historical Association’s John Hope Franklin Lifetime Achievement Award.

Armand Derfner has been a civil rights lawyer for nearly sixty years as well as a scholar and teacher of constitutional law. He has helped shape the Voting Rights Act in numerous Supreme Court arguments and worked on desegregating state university systems and state legislatures across the South.

Table of Contents

Note to the Reader ix

Introduction 1

1 The Constitution, the Supreme Court, and the Road to Civil War 12

2 A New Birth of Freedom 34

3 The Supreme Court in Reconstruction 56

4 The Supreme Court and the Jim Crow Counterrevolution 84

5 Beginning the Long, Slow Turnaround 112

6 Breaking New Ground 140

7 The End of Separate but Equal 167

8 Opposing Forces: Massive Resistance and the Civil Rights Movement 197

9 A New Birth of Freedom, Again 223

10 Change in the Court 246

11 The War of Words: "Purpose" and "Effect" 274

12 Affirmative Action: Color Blind or Color Conscious 295

13 The Color of Criminal Justice 320

Conclusion 338

Notes 345

Acknowledgments 419

Illustration Credits 423

Index of Cases 425

General Index 435

Editorial Reviews

Show[s] with heartbreaking clarity how the Supreme Court has typically been more a foe than a friend to the pursuit of racial equality…[An] impressive work…Burton and Derfner’s discussion of recent Supreme Court jurisprudence offers high levels of insight, and they provide reliable guidance on controversies involving affirmative action, capital punishment, regulation of police, and other vexing subjects.

The Nation - Randall Kennedy

The sensitive and unsparing analysis that accompanies the wonderfully rich detail in this important book makes it a necessary work for anyone who wants to understand race in America through the critical lens of the Supreme Court’s powerful influence.

Sherrilyn Ifill

Eminent historian Vernon Burton and distinguished civil rights lawyer Armand Derfner have produced a marvelous, comprehensive history of race and the Supreme Court. Justice Deferred is a thoroughly engaging and accessible book on an essential subject.

Mary Frances Berry

An engaging, accessible, and elegantly written analysis of the history of American race relations, framed around roughly two hundred Supreme Court cases…A superb study.

Criminal Law and Criminal Justice Books - Jeffrey Adler

A vivid narrative and analysis of social and political conflict whose issues made their way to the highest court for resolution. Written in a lucid, readable style, Justice Deferred traces the ways in which the Supreme Court sustained slavery, upheld the Thirteenth, Fourteenth, and Fifteenth Amendments during the early years of Reconstruction, shamefully succumbed to a racist retreat from equal rights until the 1940s, and led the way in a second Reconstruction from the 1950s to the 1980s, but has stumbled into a second and erratic retreat during the past thirty-five years.

James M. McPherson James M. McPherson

Remarkable for the breadth and depth of its historical and legal analysis, Justice Deferred makes an invaluable contribution to our understanding of the US Supreme Court’s role in America’s difficult racial history.

Tomiko Brown-Nagin

A fluent, illuminating but dispiriting book…Ingeniously shows how widely the badge of servitude—the presumption that Blacks are unfit for equal rights and opportunities—has continued to haunt race relations.

Patterns of Prejudice - Stephen J. Whitfield

The first book to comprehensively chart the Supreme Court’s race jurisprudence. For reasons obvious to many, this book could not have come too soon. We are lucky to finally have this important history reference at a time when it seems the lessons of history can too easily be forgotten.

Trial News - Talis Abolins

A comprehensive portrait of the centrality of race in some of the Court’s most momentous decisions…We would do well to internalize the lessons of Justice Deferred as we consider the current attacks on Critical Race Theory (which isn’t taught in K-12 schools, by the way) and Nikole Hannah-Jones’ ‘1619 Project’ as they attempt to shed light on the persistence of white supremacy in America. While it, too, may be demonized for its unflinching portrayal of our racialized legal history, Justice Deferred should be required reading for anyone seeking a deeper understanding of the impact of race on American political, economic, and legal structures.

Post and Courier - John L. S. Simpkins

This comprehensive history demonstrates a hard truth in America: the highest court has most often been on the wrong side of racial justice. From the heartbreak of Dred Scott to the promise of Brown v. Board of Education to current efforts to roll back voting rights, Justice Deferred reminds us that the fight for justice requires our constant vigilance.

Ibram X. Kendi

Justice Deferred plumbs, with magisterial sweep and resonant clarity, the Supreme Court’s wrestling with white America’s commitment to the politics of domination. For ten of our nation’s twelve generations, no massacre has been too bloody, no injustice too stark, for the Court to defend. Excruciating legal battles have brought evanescent victories. Always, justice requires us to struggle against the sin of forgetfulness, and this book strikes a mighty blow, calling us to the struggles of our time and reminding us that higher ground awaits.

Rev. Dr. William J. Barber II

When we reflect on the past, patterns emerge that explain the present. This remarkable book about race and the Supreme Court comes at a time when Americans are reckoning with the injustices of our past and the inequities they have wrought on our present. The fascinating narrative by Burton and Derfner, both of whom I know and admire, is especially relevant and can be helpful as our nation continues its pursuit of ‘a more perfect Union’ in the days and years to come.

Congressman James E. Clyburn

Weaving together sweeping trends and telling detail from cases both (in)famous and unknown, Justice Deferred is invaluable. Burton and Derfner go beyond constitutional cases to examine statutory cases as well, from fugitive slave lawsuits to decisions interpreting the anti-discrimination statutes of the Second Reconstruction, offering a far richer explanation for the current state of the law and racial justice. Written with a clarity that general readers can follow but with a sophistication that will deepen law students’ and practicing attorneys’ understanding, it is exactly the right book at the right time.

Pamela S. Karlan

In this magisterial history, Burton and Derfner demonstrate how the law both reflects society and shapes it. Explaining landmark Supreme Court cases through the entire sweep of American history, they reveal that the key dividing line in American judicial ideology is between justices who interpret our laws broadly to bring our fundamental principles to life and justices who interpret them narrowly in order to starve them. This book is smart, accessible, and important.

Heather Cox Richardson

At best, the US Supreme Court has a mixed record when it comes to issues of race and civil rights…Justice Deferred offers a needed refresher course for faded memories on the Supreme Court’s unequal history with one of the key issues not only of our day, but one that has always been key in this country’s development—one that still requires more work.

New York Journal of Books - Mike Farris

Extremely important and timely…When it comes to SCOTUS’s racial decisions, Burton and Derfner let the history speak for itself…It is hard to read this story…as anything other than a disappointing and dispiriting betrayal of African Americans, Native Americans, Asian immigrants, other minorities, and civil rights…Many of the stories and cases considered in Justice Deferred are utterly heart wrenching. Taken together, they are enough to make us question our trust in the Supreme Court.

Los Angeles Review of Books - R. Owen Williams

An important contribution…Burton and Derfner argue that most of the Supreme Court’s accomplishments happened from the 1930s to the early 1970s. Before then, the court ‘spent much of its history ignoring or suppressing those rights, and in the half century since the early 1970s the Court’s record on civil rights has retreated far more than it advanced.’ With clear and accessible prose, Burton and Derfner trace this disheartening story, which began during slavery and has not stopped.

The Progressive - Frye Gaillard

A vivid narrative and analysis of social and political conflict whose issues made their way to the highest court for resolution. Written in a lucid, readable style, Justice Deferred traces the ways in which the Supreme Court sustained slavery, upheld the Thirteenth, Fourteenth, and Fifteenth Amendments during the early years of Reconstruction, shamefully succumbed to a racist retreat from equal rights until the 1940s, and led the way in a second Reconstruction from the 1950s to the 1980s, but has stumbled into a second and erratic retreat during the past thirty-five years.

James M. McPherson

03/22/2021

Clemson history professor Burton (The Age of Lincoln) and civil rights attorney Derfner deliver a comprehensive survey of the Supreme Court’s role in the battle for racial equality. Analyzing more than 200 rulings, the authors make clear that the court has more often been an impediment to progress than an ally of it. They put famous cases, including Dred Scott and Brown v. Board of Education, in the context of judicial precedents and contemporaneous politics, and spotlight the importance of more obscure rulings, including the 5-4 decision in Wards Cove Packing Co. v. Atonio (1989), which shifted to the plaintiff the burden of proving that “racially different results” produced by a company’s hiring practices didn’t have a legitimate business justification. Spanning American history from the colonial era to the present day, Burton and Derfner offer copious evidence that justices have been influenced by the politics of their respective eras, and, in some cases—including an 1876 decision striking down key parts of a law protecting voting rights for African Americans—have ignored a statute’s wording in order to rollback minority rights. This meticulous deep dive into the court’s mixed record on civil rights is a must-read for legal scholars. (May)

Publishers Weekly