Edward B. Burling’s Years at Harvard University, 1890-1894

This series about the life of Edward B. Burling commenced with a post about his connections with Katherine Graham, the owner and publisher of the Washington Post, and then retreated in time to a post about his birth and early years in Iowa, 1870-1890. Now we look at his four years at Harvard University in Cambridge, Massachusetts.[1]

 Harvard College, 1890-91

For the  academic year, 1890-91, a wealthy relative (Perkins Bass) paid for Ned (and his brother James) to attend Harvard College, where they each earned another B.A. degree in 1891. Again Ned worked hard at his courses, earned good marks and made no friends.

Harvard Law School, 1891-94

In the Fall of 1891, at the suggestion, and again with the financial assistance, of Perkins Bass, Ned started at the Harvard Law School. The three years there, in contrast to his other years of higher education, were “very happy, satisfactory.” He did very well in his classes and was a member of the Harvard Law Review, finishing with “highest honors” and a LL. B. degree in 1894. Moreover, Ned became good friends with classmates, especially with Learned and Augustus Hand, both of whom became noted federal judges, and with George Rublee, who became a public-spirited U.S. lawyer who involved himself with state and national political reform during the Progressive Era (1910-1918) and with international affairs from 1917 to 1945.

Immediately after law school, Perkins Bass financed a nine-month tour of Europe for Ned to accompany one of the Bass sons. Later Ned commented that the trip turned out to be a handicap or burden, rather than a blessing, because it exposed him to the glamorous life of the wealthy and “diverted my attention from my main undertaking, which was to earn a living.”  As that old song goes, “How are you going to keep them down on the farm, after they’ve seen Paree [Paris]?”

Conclusion

The next installment of the Burling saga will discuss his years as a Chicago attorney, 1895-1917.

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[1] Citations to the sources for this post are found in this blogger’s Edward Burnham Burling, The College’s Quiet Benefactor (April 2008)(18-page essay and bibliography; on file in Grinnell College’s Special Collections and Archives). A subsequent post will discuss Burling’s life-long friendship with Learned Hand.

 

 

 

 

 

Edward B. Burling’s Early Years in Iowa, 1870-1890

Edward B. Burling (known familiarly as “Ned”) had a distinguished career as a prominent lawyer in Washington, D.C. and as we saw in a prior post was a friend of Katherine Graham, the owner and publisher of the Washington Post, whom Merl Streep played in the current film “The Post.”

Now we commence a chronological examination of Burling’s life. This first installment looks at his humble and modest early years in Iowa. [1]

Eldora, Iowa, 1870-87

Burling was born in the small, frontier village of Eldora, Iowa in 1870, during the presidency of Ulysses S. Grant and just five years after the end of the U.S. Civil War, and Ned grew up there in very limited circumstances.[2]

His father, Edward Burling, after his clothing store went bankrupt, apparently never did much work while Ned’s mother, Lucy Burnham Burling, worked hard to raise four children and to send all of them to college, three to Grinnell– James P. (Class, 1889), Ned (Class, 1890) and Helen (Class, 1895). [3]

Thereafter Ned did not forget Eldora. He built a house in the town for his mother in the early 20th century and afterwards returned to visit her several times a year. The surrounding countryside, he said, “is lovely to look at . . . and is the country my eyes first rested on. And that always makes a difference.”

Ned carried a life-long love for his mother and hostility towards his father, who also was named Edward. The son even said, “Meeting him [his father] was a great misfortune for my mother,” who after marrying his father was “very poor.” But having “a ne’er-do-well father,” Ned often said, meant that “he had no psychoses and no omnibrooding [sic] presence to oppress.” [1] To the surprise of this author, Ned apparently never expressed remorse over his not having reconciled with his father before the latter’s death in 1907.

Although Ned’s Burling family is regarded as a major American family whose origins in America go back to the late 17th century, Ned’s dislike of his father carried over to all his Burling ancestors, in contrast to his mother’s family, the Burnhams. As Ned said, “The Burlings, it always seemed to me, were shallow, showy, pleasant, agreeable, irresponsible. The Burnhams were the opposite in every respect, careful, prudent, earnest, intelligent, honorable, high minded.”

This personal background undoubtedly underlay Ned’s  rejecting Grinnell College President Howard Bowen’s suggestion that the Library be named after the successful lawyer alum himself who had made the  major financial contribution for the new library in 1959-60. Instead Burling insisted that it be named in honor of his mother without any mention of his father. Perhaps Ned secretly contemplated having the Library named “The Burnham Library.”

Ned claimed that his concern for his mother’s poverty inspired him at an early age to earn money and that after the age of 14 he always paid for his own board. As a teenager he got a job at an Eldora grocery store where he soon learned finance and human nature, years he later described after all of his successes in law as “the most important years of my life.”

Grinnell, Iowa, 1887-1890

It, therefore, was with great reluctance that Ned left Eldora and the promise of a job with an express company to go to another small Iowa town, Grinnell, at his mother’s insistence that he obtain a college education.[4]

Because of the inadequacies of his Eldora 8th grade education, he first had to attend the Grinnell Academy, completing in one year its secondary-school course of three years of Latin and one year of Greek.

In his subsequent desire to finish college as soon as possible in order to start making money again, Burling finished his college courses in two years, earning a B.A. in 1890. He did not “enjoy any part of the three years [at Grinnell]. I was poor, inadequately fed, with a blotched complexion, badly dressed, unattractive to the girls.”  He claimed not to have participated in any extracurricular activities, yet the college annuals list him as being a member of the Grinnell Institute (men’s literary society) and the Critical Association (classical studies group) and having the role of Oedipus Rex in a production of that play.[2] His downplaying the influence of Grinnell is belied by his later admission that he had first “found himself” at Grinnell.

The Academy and the College in those years, 1887-90, were very small. Fewer than 200 students attended the Academy; fewer than 300, the College. Only four buildings (Alumni Hall, Blair Hall, Chicago Hall and Goodnow Hall) served the students with one dormitory for women (Ladies Boarding Hall). Other women and the men had to live in private boarding houses.

 Conclusion

The next installment of the Burling saga will move to Massachusetts and Ned’s five years at Harvard’s  College and Law School.

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[1] The references for this post can be found in the blogger’s “Edward Burnham Burling: The College’s Quiet Benefactor” (April 2008), a copy of which is in Grinnell College’s Special Collections and Archives. https://www.grinnell.edu/libraries/archives  One of the sources is now online: Jane Thompson-Stahr, The Burling Books: Ancestors and Descendants of Edward and Grace Burling, Quakers 1600-2000] (Vol. I)I(2001).

[2] In 1870, the year of Burling’s birth, Eldora’s population was 1,268, and its population peak of 3,553 occurred in 1940.   The town’s official website is https://www.eldoraiowa.com.

[3] James P. Burling also was a distinguished Grinnell and Harvard graduate; he became a Congregational minister and received a Grinnell honorary D.D. in 1914. (Burling Books at 901-05.) Two of his children were also Grinnell alums– F. Temple Burling (Class, 1917) and Helen Burling Kronwall (Class, 1920)–as were two grandchildren–James P. Burling II (Class, 1952) and Nicholas B. Kronwall (Class, 1957)–and one great-grandchild–F. Temple Burling (Class, 1985). (Burling Books at 905, 1079-81, 1207-09. Yet Brother Ned apparently ignored James’ happy home life while disparaging James as unenergetic and unambitious. (Burling Books at 902.)

[4] The population of the town of Grinnell, 1897-1890, was approximately 3,000. It now has an estimated population of approximately 9,000.

Ta-Nehisi Coates’ Unsatisfactory “Case for Reparations”

840The June 2014 issue of The Atlantic devotes 20 black-bordered pages to “The Case for Reparations” as the lead and cover article by Ta-Nehisi Coates, its national correspondent.

This is a serious subject by an author who has been obtaining some prominence or notoriety this year occasioned by his best-selling book, “Between the World and Me,” which was discussed in a previous post.

Moreover, on September 28, 2015, the MacArthur Foundation awarded one of its prestigious Fellows or “genius” grants to Coates and asserted that he “brings personal reflection and historical scholarship to bear on America’s most contested issues . . . without shallow polemic and in a measured style.” In “The Case for Reparations,” according to the Foundation, “Coates grapples with the rationalizations for slavery and their persistence in twentieth-century policies like Jim Crow and redlining . . . [and] compellingly argues for remuneration for the economic impact on African Americans denied the ability to accumulate wealth or social status for generations. [The article is] deeply felt and intensely researched.”

I, therefore, was expecting a serious discussion of this important issue.

Instead, I was profoundly disappointed in the analysis as well as the quality of the research and writing of this article and strongly disagree with MacArthur’s glowing commentary on the article.

Coates’ Discussion of Reparations

Coates mentions that certain scholars have discussed how reparations might be implemented. One, he says, suggested multiplying the number of African Americans in the population by the difference between white and black per capita income and then presumably paying that difference to each African American each year for a decade or two. Another, Coates reports, proposed a program of job training and public works for all poor people. (P. 69) But Coates does not endorse either one.

Instead Coates hides in generalizations. He says reparations means “the full acceptance of our collective biography and its consequences” and “a revolution of American consciousness, a reconciling of our self-image as the great democratizer with the facts of our history” (p.70).

On the last page of the article (p. 71) Coates becomes more specific by advocating congressional adoption of a bill for a federal study of the issue of reparations that has been offered by Representative John Conyers (Dem., MI) for the last 25 years. Without examining the details of the bill or the arguments advanced for the bill by Conyers, Coates states, “No one can know what would come out of such a [study and] debate. Perhaps no number can fully capture the multi-century plunder of back people in America. Perhaps the number is so large that it can’t be imagined, let alone calculated and dispensed. But I believe that wrestling with these questions matters as much as—if not more than—the specific answers that might be produced. An America that asks what it owes its most vulnerable citizens is improved and humane.”

This is not, as MacArthur suggests, a compelling argument “for remuneration for the economic impact on African Americans denied the ability to accumulate wealth or social status for generations.”

The Conyers’ Bill

An examination of the Conyers bill itself does not buttress the claimed genius of the Coates article. In the current session of Congress this bill is H.R.40: The Commission to Study Reparation Proposals for African Americans Act. A quick examination of the Library of Congress THOMAS website reveals that the bill (in sections 4, 5 and 7) would establish a commission of seven members (three to be appointed by the U.S. President, three by the Speaker of the House of Representatives and one by the president pro tempore of the U.S. Senate) to hold hearings and issue a report of its findings and recommendations.

The key to the bill is section 2(a), which would make the following factual findings that Coates takes most of 20 pages to elucidate:

“(1) approximately 4,000,000 Africans and their descendants were enslaved in the United States and colonies that became the United States from 1619 to 1865;

(2) the institution of slavery was constitutionally and statutorily sanctioned by the Government of the United States from 1789 through 1865;

(3) the slavery that flourished in the United States constituted an immoral and inhumane deprivation of Africans’ life, liberty, African citizenship rights, and cultural heritage, and denied them the fruits of their own labor; and

(4) sufficient inquiry has not been made into the effects of the institution of slavery on living African-Americans and society in the United States.”

Section 2(b) of the bill  then states the commission would examine and report on these factual predicates plus the “de facto discrimination against freed slaves and their descendants from the end of the Civil War to the present, including economic, political, and social discrimination.” With such factual determinations the commission would be charged to “recommend appropriate ways to educate the American public of the Commission’s findings” and “appropriate remedies.”

Representative Conyers’ website  contains a discussion of the bill that at least alludes to the following challenging sub-issues that would face such a commission and that are not examined by Coates: “whether an apology is owed, whether compensation is warranted and, if so, in what form and who should be eligible.”

Resolution for Rectification of Misdeeds Against African-Americans

More importantly, Coates’ article does not mention a resolution (H.Res.194) adopted in 2008 by the U.S. House of Representatives that has lengthy factual preambles about the evils of slavery and Jim Crow. [1] The House in H.Res.194 more importantly also:

  1. “acknowledges that slavery is incompatible with the basic founding principles recognized in the Declaration of Independence that all men are created equal;”
  2. “acknowledges the fundamental injustice, cruelty, brutality, and inhumanity of slavery and Jim Crow;”
  3. “apologizes to African Americans on behalf of the people of the United States, for the wrongs committed against them and  their ancestors who suffered under slavery and  Jim Crow; and”
  4. “expresses its commitment to rectify the lingering consequences of the misdeeds committed against African Americans under slavery and Jim Crow and to stop the occurrence of human rights violations in the future.”

Yes, this is only a resolution by only one chamber of the Congress, but it is closer to the result apparently being advocated by Coates than the Conyers’ bill.

U.S. Presidential Statements About Slavery

H.Res.194 in a preamble asserts that “on July 8, 2003, during a trip to Goree Island, Senegal, a former slave port, President George W. Bush acknowledged slavery’s continuing legacy in American life and the need to confront that legacy when he stated that slavery `was . . . one of the greatest crimes of history . . . The racial bigotry fed by slavery did not end with slavery or with segregation. And many of the issues that still trouble America have roots in the bitter experience of other times. But however long the journey, our destiny is set: liberty and justice for all.”[2]

In another preamble H.Res.194 asserts, “President Bill Clinton also acknowledged the deep-seated problems caused by the continuing legacy of racism against African-Americans that began with slavery when he initiated a national dialogue about race.”

Neither of these presidential statements is mentioned by Coates, both of which support his opinion favoring reparations.

Caribbean States’ Reparations Claims

Apparently at least 14 states in the Caribbean are preparing claims for reparations for slavery against their former colonial rulers: Great Britain, France, Spain, Portugal and the Netherlands. Britain’s Prime Minister Cameron recently rejected that reparations idea.[3]

Again there is no mention of these claims by Coates even though they lend credence to his advocacy of similar reparations in the U.S.[4]

Litigation Over Contracts for Deed

Coates leads the article with a lengthy discussion of problems faced by blacks on the west side of Chicago in the 1960’s in financing purchases of homes and as a result being forced to do so on contracts for deed with unscrupulous sellers (pp. 56-59). Coates then enthusiastically endorses these black purchasers’ bringing a federal lawsuit against the sellers for reparations (or money damages). On the next page (p.60), however, Coates tells the reader, without any citation of source, that in 1976 the black plaintiffs lost a jury trial supposedly due to anti-black prejudice of the jury and even later in the article (p.67) he says that as a result of the lawsuit some of the plaintiffs were allowed to own their homes outright while others obtained regular mortgages.

Coates, however, fails to mention that according to a secondary source from the University of Illinois-Chicago, the west-side case went to trial in the Spring of 1976, and in November 1979, the jury decided that the sellers had taken advantage of the buyers for higher profits, but that the sellers were so ruthless they would have cheated anyone, not only blacks, and, therefore, the jury rejected the racial discrimination claim, and the plaintiffs’ lawyers decided not to appeal this decision.

That same secondary source reports that a related case from the south side of Chicago went to trial in 1972 before a federal district judge with a jury. At the close of the evidence, the court directed a verdict against the plaintiffs saying that they had not proved a prima facie case of discrimination. On appeal, the U.S. Court of Appeals for the Seventh Circuit reversed and remanded for a new trial. That new trial occurred in 1979, without a jury, before a district judge who decided in favor of the defendants, and the Seventh Circuit affirmed.

Clyde Ross was prominently mentioned at the start of the Coates’ article about the housing discrimination that led to the above litigation, and after the publishing of the Coates article, Ross said in an interview, “I don’t know why we would even discuss [reparations] . . .when that would never happen. It involves taking money, property, from other people, from the people with power and wealth. How could that ever come to be? In theory, yes it is a good idea, but it’s better to be practical. I support equality under the law. I just want to be able to pay off a mortgage knowing that I am getting the same deal as the white guy. That’s all I ask.”

Coates also did not uncover in his research the successful Minnesota lawsuit in the 1920’s by a black couple against white landlords who after accepting contract-for-deed payments for 25 years denied the couple possession of the Minneapolis house on the false assertion that their payments were only rent. The couple’s attorney, by the way, was Lena Olive Smith, the state’s first black female lawyer who became the leader of the city’s NAACP branch in the 1930s.

Conclusion

I am not a scholar of race relations in the U.S. or of reparations generally or in the U.S. specifically. The above discussion of facts that apparently were not discovered by Coates was based upon this blogger’s perfunctory Internet searching.

The Coates article also is difficult to read because of the lack of an introduction and conclusion and of any headings or subdivisions amidst the parade of often densely packed paragraphs that do not follow in a logical order.[5]

This blogger as a retired lawyer might be seen as engaging in an inappropriate  lawyerly criticism of the Coates’ article. But Coates presumably is advocating for others to embrace the conclusion that reparations are a necessary response to a major societal problem. As an advocate, he should write to be more persuasive.

This blogger as a white American is supportive of civil and human rights generally and is willing to consider a well-written and documented case for U.S. reparations for slavery and Jim Crow. Unfortunately the Coates article does not do that. It needs additional research and a major rewrite. (As always, I invite others’ comments of agreement or disagreement.)

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[1] U.S. House of Reps., 110th Cong., 2nd Sess.,  H.Res.194 (July 29, 2008)..As February 23, 2007, was the bicentennial of the British Parliament’s abolition of slave trading, the 110th U.S. Congress (2007-2009) had 150 bills and resolutions that mentioned the word “slavery,” but this blog has not “drilled down” to determine their details.

[2] President Bush Speaks at Goree Island in Sengal (July 8, 2003)

[3] E.g., Search for “slavery,” Guardian; Bilefsky, David Cameron Grapples with Issue of Slavery Reparations in Jamaica, N.Y. Times (Sept. 30, 2015); Assoc. Press, Cameron Provides Caribbean Aid, Rejects Slavery Reparations, N.Y. Times (Sept. 30, 2015); Room for Debate: Are Trans-Atlantic Slave Trade Reparations Due?, N.Y. Times (Oct. 8, 2015).

[4] Coates does mention Massachusetts’ granting a 1783 petition for reparations by a black freewoman; 17th and 18th century Quakers’ granting reparations; the 1987 formation of a National Coalition of Blacks for Reparations in America; the 1993 NAACP’s endorsement of reparations; a lawsuit for reparations brought by Harvard Law School Professor Charles Ogletree, Jr. (without mentioning its details or outcome); and Germany’s reparations to Israel for the Holocaust (pp. 61, 70-71).

[5] The online version of the article added headings I through X, but most of them are quotations from sources in the sections, requiring the reader to dive into the sections to discover their significance. Another post discusses Coates’ “The Black Family in the Age of Mass Incarceration,” The Atlantic (Oct. 2015), which also has chapter headings, most of which do not help the reader.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

More about Coates:

 

Brooks: http://www.nytimes.com/2015/07/21/opinion/david-brookss-letter-to-ta-nehisi-coates-about-race.html

 

Ltrs re column: http://www.nytimes.com/2015/07/21/opinion/david-brookss-letter-to-ta-nehisi-coates-about-race.html

 

http://www.salon.com/2015/07/17/david_brooks_scolds_ta_nehisi_coates_i_think_you_distort_history/

 

http://crooksandliars.com/2015/07/dont-be-fooled-all-forelock-tugging-david

 

http://talkingpointsmemo.com/livewire/david-brooks-nyt-ta-nehisi-coates

 

http://talkingpointsmemo.com/cafe/ta-nehisi-coates-david-brooks-american-dream

 

http://jezebel.com/listening-to-ta-nehisi-coates-whilst-snuggled-deep-with-1718506352

 

http://www.alternet.org/media/david-brooks-relies-ignorant-white-privilege-attack-ta-nehisi-coates-new-book

 

http://townhall.com/columnists/marknuckols/2015/07/17/tanehisi-coates-cheers-deaths-of-911-rescuers-david-brooks-apologizes-for-being-white-n2026881

 

http://aaihs.org/ta-nehisi-coates-david-brooks-and-the-master-narrative-of-american-history/

 

http://www.citypaper.com/arts/books/bcp-072915-books-coates-gunnery-20150724-story.html

 

https://www.thewrap.com/new-york-times-columnist-david-brooks-blasted-for-white-privilege-letter-to-ta-nehisi-coates/

 

http://flavorwire.com/528823/the-american-dream-david-brooks-loves-so-much-is-rich-white-americas-greatest-tool-of-social-control

 

Naturalized U.S. Citizens: Important Contributors to U.S. Culture and Economy

U.S. citizens are those individuals who were born in the U.S. as well as those born elsewhere to a parent who is a U.S. citizen. In addition, there are those who choose to become naturalized U.S. citizens by filing an Application for Naturalization, Form N-400, with the U.S. Citizenship and Immigration Services, which is part of the U.S. Department of Homeland Security, and meeting the following requirements of U.S. law:

  • Be at least 18 years of age;
  • Be a lawful permanent resident (green card holder);
  • Have resided in the United States as a lawful permanent resident for at least five years;
  • Have been physically present in the United States for at least 30 months;
  • Be a person of good moral character;
  • Be able to speak, read, write and understand the English language;
  • Have knowledge of U.S. government and history; and
  • Be willing and able to take the Oath of Allegiance. [1]

The average annual number of individuals who became U.S. citizens increased from less than 120,000 during the 1950s and 1960s to 210,000 during the 1980s, and 500,000 during the 1990s. In the 21st century the annual average has increased to nearly 690,000 as shown by the following statistics:

Fiscal Year Total New Naturalized U.S. Citizens Fiscal Year Total New Naturalized U.S. Citizens
2000     888,788 2008 1,050,399[2]
2001     613,161 2009     741,982
2002     589,727 2010     619,075
2003     456,063 2011     690,705
2004     536,176 2012     762,742
2005     600,366 2013     777,416
2006     702,663 2014     654,949
2007     659,233 TOTAL 10,343.445

Until the 1970s, the majority of persons naturalizing were born in European countries. In the 1970s the regional origin of new citizens shifted from Europe to Asia due to increased legal immigration from Asian countries, the arrival of Indochinese refugees, and the historically higher naturalization rate of Asian immigrants. This summary from the U.S. Government, however, fails to aggregate the people from South America, Central America, Mexico and the Caribbean into a Latin American group. For the latest available fiscal year (2013), the new citizens came from the following regions of the world:

Region of origin Number Percentage
Latin America    339,229    43.5%
Asia    275,700    35.3%
Europe     80,333    10.3%
Africa     71,872      9.2%
Other    12,795      1.6%
TOTAL 779,929 100.0%

In FY 2013, the top countries of origin for naturalization were in the following order: Mexico, India, the Philippines, Dominican Republic, China and Cuba.

In FY 2013, 75 percent of all individuals naturalizing resided in 10 states (in descending order): California, New York, Florida, Texas, New Jersey, Illinois, Virginia, Massachusetts, Georgia and Pennsylvania. That same fiscal year the leading metropolitan areas of residence were New York-Northern New Jersey-Long Island, NY-NJ-PA (17.5 percent); Los Angeles-Long Beach-Santa Ana, CA (9 percent); and Miami-Fort Lauderdale-Pompano Beach, FL (8.6 percent).

Conclusion

These new citizens provide an infusion of new perspectives on culture and on the U.S. itself. We are blessed to have them join us. Many other industrialized countries like Japan do not have this openness to newcomers and, therefore, struggle with aging and declining populations and resulting diminished influence in the world.

Although the public information for becoming a naturalized citizen on the website of the U.S. Citizenship and Immigration Services, which is the basis for this post, is very useful, anyone thinking of doing so should consider consulting with an U.S. attorney with experience in this area of the law.

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[2] There also are other provisions for naturalization for members of the U.S. military and for children under the age of 18.

[2] The unusually large number of new naturalized citizens in FY 2008 was due primarily to applications received in advance of a fee increase in calendar 2008 and to a special effort to encourage eligible individuals to submit applications for citizenship.

U.S. Supreme Court Shows Unjustified Hostility to the Voting Rights Act of 2006

On February 27, 2013, the U.S. Supreme Court heard oral arguments in Shelby County, Alabama v. Holder, No. 12-96, which raises the following issue:

  •  “Whether Congress’ decision in 2006 to reauthorize [for 25 years] Section 5 of the Voting Rights Act [of 1965] under the pre-existing coverage formula of Section 4(b) of [that] Act [requiring certain states to obtain preclearance from the U.S. Department of Justice or a special federal court for any changes in their election laws] exceeded           its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.”[1]

As has been frequently reported, during the argument Chief Justice John Roberts and Associate Justices Antonin Scalia, Samuel Alito and Anthony Kennedy asked questions and made comments strongly suggesting that they were prepared to invalidate this statutory provision,[2] a conclusion that already had been reached by Associate Justice Clarence Thomas in a prior case. If this is a correct reading of the recent argument, then there would be at least a 5-4 majority on the Court to declare the provision unconstitutional.

According to Linda Greenhouse, a leading Supreme Court follower, the “goal of [the petitioner] Shelby County and [apparently a majority] . . . on the Supreme Court is to depict Section 5 as an anachronism, a needless cudgel held by the big bad federal government over the head of a transformed South.“

Here are just a couple of examples of that attitude from the argument.

Chief Justice John Roberts
Chief Justice         John Roberts

Chief Justice Roberts asked or, as Greenhouse put it, “taunted” the U.S. Government’s lawyer (Solicitor General Donald Verrilli) with the following questions (and Roberts’ own answers) apparently to express Roberts’ belief that Mississippi has a better record than Massachusetts on black voter registration and turnout and that the Voting Rights Act provision at issue is no longer needed and, therefore, unconstitutional:

  • “Do you know how many submissions there were for preclearance to the Attorney          General in 2005?” (Roberts: “3700.”)
  • “Do you know how many objections the Attorney General lodged?” (Verrilli: “There          was one in that year.”)
  •  “[D]o you know which State has the worst ratio of white voter turnout to African American voter turnout?” (Roberts: “Massachusetts.”)
  •  “[W]hat [state] has the best, where African American turnout actually exceeds white       turnout?” (Roberts: “Mississippi.”)
  •  “Which State has the greatest disparity in registration between white and African American?” (Roberts: “Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate.”)
  •  “[I]s it the government’s submission that the citizens in the South are more racist             than citizens in the North?”  (Verrilli: “It is not.”)

Roberts did not identify the source of his statistics, but afterwards the Massachusetts Secretary of State, William F. Galvin, and political scientists speculated that Roberts drew his conclusions from the U.S. Census Bureau’s “The Current Population Survey,” which collects information on voting and registration every other year. This data, however, should not be used in the way that Roberts did because of their large margins of error, as reported by Nina Totenberg of National Public Radio.

Indeed, Secretary Galvin said that Roberts’ assertion about Massachusetts and Mississippi is just plain wrong and that the only way that the Census Bureau source supports Roberts’ assertion is by including Massachusetts’ non-citizen blacks who are not entitled to vote. To do what Roberts did, according to Galvin, is “deceptive” and “a slur on black voters in Massachusetts.”

Nate Silver, the statistician, also criticizes Roberts’ trumpeting these figures about Mississippi and Massachusetts apparently to justify a conclusion that the Voting Rights Act provisions in question are no longer needed and, therefore, unconstitutional.

According to Silver, “If [Roberts] . . . meant to suggest that states covered by Section 5 consistently have better black turnout rates than those that aren’t covered by the statute, then his claim is especially dubious.” Moreover, says Silver, it is outright fallacious to conclude from this simple comparison of two states, however flawed the data, that the provisions of section 5 of the Voting Rights Act and the formula in section 4(b) are no longer needed. For example, such data say nothing about whether whatever gains have been made in racial minority voting “might be lost if the Section 5 requirements were dropped now.”

I also fault the Chief Justice for focusing on only one small piece of evidence, however flawed or subject to qualification. Instead, he should be focusing on fundamental principles of judicial restraint as repeatedly proclaimed by the U.S. Supreme Court itself and as cited by the D.C. Circuit in its opinion in this case.

These precedents emphasize that “Congress’s laws are entitled to a ‘presumption of validity’” and that “when Congress acts pursuant to its enforcement authority under the Reconstruction Amendments [including the Fifteenth Amendment], its judgments about ‘what legislation is needed . . . are entitled to much deference.‘“  Such deference is paid “‘out of respect for [Congress’] . . .  authority to exercise the legislative power,’” and in recognition that Congress “is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.” (Citations omitted.)[3]

Justice Antonin Scalia
Justice Antonin Scalia

Associate Justice Scalia also interrupted Solicitor General Verrilli to make this long statement:

  •  “This Court doesn’t like to get involved . . . in racial questions such as this one. It’s something that can be . . . left to Congress.
  • “The problem here, however, is . . . that the initial enactment of this legislation in a time when the need for it was so much more abundantly clear . . . in the Senate, . . . it was double-digits against it. And that was only a 5-year term. Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
  • “And this last enactment [in 2006], not a single vote in the Senate against it. And the House is pretty much the same.
  •  “Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is . . . very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity . . .  unless a court can say it does not comport with the Constitution.
  •  “You have to show, when you are treating different States differently, that there’s a good reason for it. That’s . . . the concern that those of us . . . who have some questions about this statute have. It’s . . .  a concern that this is not the kind of a question you can leave to Congress.
  •  “There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose . . . votes if they do not reenact the Voting Rights Act.
  •  “Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”

These remarks are shocking and totally inconsistent with the Court’s long-established principles of judicial restraint mentioned above and with Justice Scalia’s persistently stated views about judicial interpretation of statutes.

Indeed, Scalia’s remarks provoked the Washington Post’s Editorial Board to proclaim that Scalia was in “contempt of Congress.” The editorial concluded with these words, “Congress, after careful review, came to an overwhelming conclusion that protection of the franchise in America is much improved but not guaranteed, especially in certain areas. We heard in . . . [the Supreme Court] argument no grounds for the court to claim superior wisdom on that question.”

 Conclusion

What is your opinion on how the Voting Rights Act issue should be resolved? Some argue for holding that provision unconstitutional.[4] Others agree with me that the provision should be upheld.[5]

I went to the University of Chicago Law School before Mr. Scalia was on the faculty, and I have never met him. By all reports, he is a brilliant man who is gracious and funny in social settings. But his comments in this and other Court arguments along with some of his opinions lead me to believe that life tenure for Supreme Court Justices and perhaps other federal judges causes at least some of them to believe that they are omniscient.

A possible solution to such arrogance, as I suggested in a comment to a prior post, is to amend  the U.S. Constitution to impose a term limit on U.S. Supreme Court Justices and perhaps other federal judges. All 50 states in the U.S. and all major nations have age or term limits for high-court judges. The International Criminal Court limits its judges to one term of nine years. Such limits are not seen as restrictions on the necessary independence of the judiciary.

The U.S. Constitution does not specifically grant life tenure to the justices or other federal judges. The Constitution merely says, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . .” Paul Carrington, a Duke University law professor, has suggested that the “good Behaviour” provision was not intended to provide life-time appointments and that term limits could be imposed by statute.


[1]  This issue was phrased by the Supreme Court itself in granting review of the case. Previous posts have reviewed the Voting Rights Act of 1965; the Voting Rights Act of 2006; the prior Supreme Court case regarding the latter statute (Northwest Austin Municipal Utility District No. One v. Holder); and the decision of the U.S. Court of Appeals for the District of Columbia Circuit in the Shelby County case. The transcript of the recent Supreme Court arguments in Shelby County is available online as are the petitioner’s brief, the respondent’s brief for the U.S. Government and the reply brief for the petitioner in the case. Other briefs in the case for three intervenors, 19 amici curiae (friends of the court) supporting the petitioner and 28 amici curiae supporting the U.S. Government can also be found on the web. Excellent commentaries about the case are available on the respected scotusblog.

[2]  E.g., Liptak, Voting Rights Law Draws Skepticism from Justices, N.Y. Times (Feb. 27, 2013); Gerstein, 5 Takeaways from the Voting Rights Act arguments, Politico (Feb. 27, 2013).

[3] Roberts’ hostility to the Voting Rights Act apparently goes back to 1981 when as a young lawyer in the Department of Justice he was working on Reagan Administration efforts to weaken the Voting Rights Act.

[4]  E.g., Blum, The Supreme Court Can Update the Obsolete Voting Rights Act, W.S.J. (Feb. 24, 2013); Room for Debate: Is the Voting Rights Act Still Needed?, N.Y. Times (Feb. 27, 2013) (Shapiro; Pilder); Savage, Decision on Voting Law Could Limit Oversight, N.Y. Times (Feb. 28, 2013); Will, The Voting Rights Act stuck in the past, Wash. Post (Mar. 1, 2013).

[5] E.g., Room for Debate: Is the Voting Rights Act Still Needed?, N.Y. Times (Feb. 27, 2013) (Wydra; Charles & Fuentes-Rohwer; Garza; Smith), supra;  Savage, Decision on Voting Law Could Limit Oversight, N.Y. Times (Feb. 28, 2013), supra.

 

Rev. Charles Edwin Brown’s Lineage in America

As mentioned in a prior post, Rev. Charles Edwin Brown (my maternal great-great grandfather or 2nd great-grandfather in Henry Louis Gates, Jr.’s terminology) was a Baptist missionary to the Iowa Territory in 1842. His and, therefore, my lineage in the U.S. has been traced to at least 1686.[1]

William Brown was born somewhere in England around 1669 and emigrated to the American colonies sometime before 1686. William was one of the early settlers of Hadley (later Hatfield), Massachusetts and the builder of its first house. By 1720 he had relocated to Leicester, Massachusetts approximately 45 miles west of Boston. He died in Leicester, Massachusetts in 1752. (William was my maternal 7th great-grandfather.)

One of William’s sons was John Brown, who was born in Hatfield, Massachusetts on November 3, 1703. Sometime before 1720 he and his family moved to be among the original settlers of Leicester, Massachusetts, where he became an important figure. John was a representative in the Commonwealth’s legislature for many years between 1749 and 1768. He died on December 24, 1791 in Leicester. (John was my maternal 6th great-grandfather.)

One of John’s sons was Perley Brown, who was born on May 27, 1737 in Leicester, Massachusetts and who died on October 28, 1776, in White Plains, New York. (Perley was my maternal 5th great-grandfather.)

John and Perley and four of John’s other sons (John, Jr., Benjamin, William and Daniel) had significant military experience, including the American Revolutionary War, that will examined in subsequent posts.

One of Perley’s sons was Nathaniel Brown, who was born in Leicester, Massachusetts on November 5, 1767 and who died on October 1, 1854 in Hamburg, New York. (Nathaniel Brown was my maternal 4th great-grandfather.)

Phillip Perry Brown was one of Nathaniel’s sons, having been born on September 17, 1790 in Bennington, Vermont. He was an ordained Baptist pastor who served several churches in Madison County, New York. He died in Madison, New York on September 23, 1876. (Phillip Perry Brown was my maternal 3rd great-grandfather.)

Phillip Perry was the father of Charles Edwin Brown, who was born on February 23, 1813 in Augusta, New York and who died in Ottumwa, Iowa on July 23, 1901.

Future posts will explore Charles Edwin’s ministry and service in Iowa and the lives of (a) his son, James DeGrush Brown (my maternal 1st great-grandfather); (b) Charles Edwin’s grandson, George Edwin Brown (my maternal grandfather); (c) and Charles Edwin’s great-grand-daughter, Marian Frances Brown Krohnke (my Mother). Another son of Charles Edwin–William Carlos Brown–had a remarkable railroad career that will be examined in other posts.

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[1] The source for this geneology is Carol Willits Brown, William Brown–English Immigrant of Hatfield and Leicester, Massachusetts, and His Descendants c. 1669-1994 (Gateway Press; Baltimore, MD 1994).