Table Of ContentShades of Freedom
RACE AND THE AMERICAN LEGAL PROCESS
A. Leon Higginbotham, Jr.
VOLUME I
IN THE MATTER OF COLOR
Race and the American Legal Process:
The Colonial Period
VOLUME II
SHADES OF FREEDOM
Racial Politics and Presumptions
of the American Legal Process
Shades of Freedom
Racial Politics and Presumptions
of the American Legal Process
A. LEON HIGGINBOTHAM, JR.
Oxford University Press • New York • Oxford
Oxford University Press
Oxford New York
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Copyright © 1996 by A. Leon Higginbotham, Jr.
First published by Oxford University Press, Inc., 1996
First issued as an Oxford University Press paperback, 1998
Oxford is a registered trademark of Oxford University Press
All rights reserved. No portion of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means,
electronic, mechanical, photocopying, recording, or otherwise,
without the prior permission of Oxford University Press.
Library of Congress Cataloging-in-Publication Data
Higginbotham, A. Leon (Aloyisus Leon), 1928-
Shades of freedom : racial politics and presumptions
of the American legal process
A. Leon Higginbotham, Jr.
p.cm. — (Race and the American legal process)
ISBN 0-19-503822-3
ISBN: 0-19-512288-7 (Pbk.)
1. Afro-Americans—Legal status, laws, etc.—-History.
I. Title. II. Series.
KF4757.H535 1996 346.7301'3—dc20 [347.30613] 96-8718
The collage on the cover was designed by Karen Watson. The individuals featured,
starting clockwise from the bottom left, are an anonymous member of the Ku Klux
Klan, Judge William Henry Hastie, Chief Justice Earl Warren, Charles Hamilton
Houston, Justice Thurgood Marshall, and Chief Justice Roger Brook Taney. The fig-
ure in the center is Linda Brown, the plaintiff in the seminal civil rights case, Brown
v. Board of Education. The collage also features portions of the Preamble of the
United States Constitution and the numerals of the XIII, XIV, and XV Amendments
that were intended to ensure that the phrase, "We the People," would thereafter
include all Americans, regardless of race.
98765432
Printed in the United States of America
With considerable affection and admiration, this book is dedicated to Evelyn
Brooks Higginbotham, Harry A. Blackmun, Curtis Bok, William J. Brennan,
Jr., Richardson Dilworth, John P. Frank, William Henry Hastie, Bessie Hill,
Charles Hamilton Houston, Nelson Mandela, Thurgood Marshall, Bernice
Munce, J. Austin Norris, Jessie Treichler, and Earl Warren. In different
ways, they have profoundly and positively influenced my life. They have
given me the encouragement to seek institutional changes that move from
shades of freedom to the fuller sunlight of justice, freedom and equity.
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PREFACE
I
T HAS BEEN eighteen years since my first book, In the Matter of Color,
was published. It is twelve years since I gave the Du Bois Lectures at
Harvard University, when I first publicly summarized my tentative
thoughts on the issues that now comprise the core of this Race and the Ameri-
can Legal Process series.
In many ways, some of the intervening years since I delivered those
lectures have been painful for me. Progress toward racial equality has been
halting, at best. Instead, the nation often seems to be retreating from the
values of a time in which there existed substantial consensus on the need for
racial pluralism in positions of power and for the opportunity of upward mo-
bility. We have lost one of the nation's most effective civil rights lawyers and
wisest Justices—Thurgood Marshall—and he has been replaced by a person
of considerably less compassion for minorities, the weak, the poor, and the
powerless.*
My disenchantment has been shared by others. In 1989, concerned about
a seemingly consistent majority of five Supreme Court Justices making very
conservative decisions on key civil rights and race relations cases, Justice
Blackmun wrote, "[s]adly, . . . [o]ne wonders whether the majority [of the
Supreme Court Justices] still believes that . . . race discrimination against
nonwhites is a problem in our society, or even remembers that it ever was."**
In 1993, in response to the majority's opinion in Shaw v. Reno, one of the
key congressional redistricting cases that invoked a new standard that could
cause the elimination of ten to seventeen African-American and Latino Mem-
*See A. Leon Higginbotham, Jr., Justice Clarence Thomas in Retrospect, 45 HASTINGS
L.J. 1405 (1994); A. Leon Higginbotham, Jr., Open Letter to Justice Clarence Thomas From a
Federal Judicial Colleague, 140 U. PA. L. REV. 1005 (1992); A. Leon Higginbotham, Jr., A
Tribute to Justice Thurgood Marshall, 105 HARV. L. REV. 55 (1991).
**See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 662 (1989) (Blackmun, J., dis-
senting) (citing City of Richmond y. J.A. Croson Co., 488 U.S. 469 (1989)).
viii Preface
bers in the United States House of Representatives, Justice White observed in
a dissent that even under North Carolina's new redistricting plan, "whites
remain a voting majority in a disproportionate number of congressional dis-
tricts." He stressed that it was "both a fiction and a departure from settled
equal protection principles" for the majority to void a redistricting plan
whereby North Carolina "sent its first black representatives since Reconstruc-
tion to the United States Congress."*
After the high-profile launching of the rhetorical "Contract with
America" in 1995, the House of Representatives brought in sixty-five new
pages—high school or college students who deliver messages and perform
other functions in the House. Of the new pages, sixty-four were white and
one was Asian American. According to a former Clerk of the House, in past
years, fifteen to twenty pages were Latino, African-American, or from other
minorities. As Congressperson Cynthia McKinney observed: "I suppose they
couldn't find any Latino or African-American youngsters qualified enough to
carry flags."** This exclusion of minorities occurred at the same time that
many of these very political leaders were condemning affirmative action con-
cepts. Concurrently, innumerable substantive programs that would have aided
the poor and the powerless were being eliminated or modified. Since a dispro-
portionate number of the poor are from minorities, African Americans sus-
tained significant setbacks.
The retreat from pluralism within the federal judiciary was perhaps the
most heartbreaking development for me. From 1980 to 1992, there was an
intentional reduction of the number of African-American judges on the federal
courts. From 1980 to September 1992, of the 115 persons appointed to the
U.S. Courts of Appeals, only two were African-American.*** More than fifty
judges were appointed to the federal courts of the Sixth Circuit, a region
comprising the states of Michigan, Ohio, Kentucky, and Tennessee, and not
one was African-American. Four African-American judges in the Southern
District of New York went on senior judge status and all were replaced by
white judges. One could fairly say that under twelve years of Republican
administrations, African-American judges were becoming an endangered spe-
cies, soon to be extinct.**** Fortunately, we have begun to see a reversal in
*Shaw v. Reno, 113 S. Ct. 2816, 2834 (1993) (White, i., dissenting).
** See Juliet Eilperin, New Page Class Is Virtually All-While, ROLL CALL, Sept. 25,1995, at 1.
***Of the two, one was Larry Pierce, whose age made it evident that he would be retiring
in a few years; the other was Clarence Thomas, appointed to the U.S. Court of Appeals for the
District of Columbia.
****See A. Leon Higginbotham, Jr., The Case of the Missing Black Judges, N.Y. TIMES,
July 29, 1992, at A21.
Preface . ix
the trend to an appointment policy that considers racial and gender pluralism
as desirable accomplishments.*
Finishing this second volume has taken far longer than I had contem-
plated. One of my acerbic colleagues reminded me that at this pace of finish-
ing a volume every eighteen years, I will be 140 years old when the last
volume is completed. With my resignation from the court in March 1993, I
finally had a sufficient amount of time to continue this intellectual journey.
While this volume focuses almost exclusively on the precept of inferior-
ity, I have also finished most of my writing on the precepts of property,
powerlessness, racial purity, manumission, and free blacks. I expect to pub-
lish the next volume within two years, and it is my hope that several of my
younger colleagues who are now active academicians will continue this series
with far greater expedition.
Many of the chapters in this volume are excerpts of my articles published
in the last fifteen years. A comprehensive bibliography is noted after the Ap-
pendix. While there may have been some significant developments after the
publication of my original articles, I will leave it to other scholars to update
those issues.
This volume is not intended to be an encyclopedia covering all of the
racial legal incidents of the last few centuries—to do that would require many
more volumes. I comment on some aspects of race and the American legal
process during the twentieth century; however, the more comprehensive de-
tails of the twentieth-century history will also be grist for later volumes and
for other authors. As an example, I do not discuss in full context Brown v.
Board of Education and the desegregation cases. I do not explore the alleg-
edly controversial issues of affirmative action, "set asides," the racial implica-
tions of capital punishment, or federal habeas corpus law. I also do not ad-
dress in full the congressional redistricting cases. There is a plethora of books
and articles on all of these issues. My purpose in this book has been to high-
light significant legal issues that exemplify the precept of racial inferiority.
With the passage of the years, it has become an increasing distraction
as to what should be the preferable terminology when referring to "African
Americans." When my first major article was published in 1973, the term
*Compare Democratic President William Jefferson Clinton's judicial appointments with
those of Republican Presidents Ronald Reagan and George Bush. In the first three years of the
Clinton administration, thirty-six African Americans were appointed to the federal judiciary. In
contrast, during the previous twelve years under the Reagan and Bush administrations, eighteen
African Americans were appointed. See ALLIANCE FOR JUSTICE, JUDICIAL SELECTION PROJECT:
ANNUAL REPORT 8 (1995). See also Sheldon Goldman and Matthew D. Saronson, Clinton's
Nontraditional Judges: Creating a More Representative Bench, 78 JUDICATURE 68 (Sept. 1994).
Description:Few individuals have had as great an impact on the law--both its practice and its history--as A. Leon Higginbotham, Jr. A winner of the Presidential Medal of Freedom, the nation's highest civilian honor, he has distinguished himself over the decades both as a professor at Yale, the University of Pen
