How the Supreme Court has shaped the South

It can take years for cases to work their way up to the U.S. Supreme Court. And it typically takes three months between oral arguments and a final decision from the highest court in the land.

But the confirmation of a Supreme Court justice? That timeline is up to the president and Senate.

In 2016, the Senate decided not to give Barack Obama’s nominee, Merrick Garland, a hearing. That deferred the process until after the election.

Right now, they are moving at a breakneck speed to confirm Amy Coney Barrett to the seat held by the late Ruth Bader Ginsburg.

Your thoughts on that may depend on your politics.

Regardless, the nomination of Amy Coney Barrett will change the ideological makeup of the court, solidifying a 6-3 conservative majority. That could have lasting effects for the South.

This week on the Reckon Interview, we’re examining the Supreme Court’s role in shaping the South.

The court has the power to expand our definition of civil rights. Or to limit it. Fred Smith is a professor of constitutional law at Emory University. He walks us through how throughout history, the Supreme Court has influenced who has legal rights in the South — and the rest of America.

We also hear from Lilly Ledbetter about how to persevere and maintain hope when the Supreme Court rules against you.

Here are a few excerpts from our conversation with Prof. Fred Smith. We’ll post segments from our discussion Lilly Ledbetter tomorrow but you can listen to the whole episode here.

And go ahead and subscribe on Apple Podcasts, Spotify, Acast or wherever else you get your podcasts to stay informed about the South this election season.

Fred Smith on how the Supreme Court affects the South

I think the way we often think about the role of the Supreme Court is in terms of kind of an interventionist sort of role. The South was doing something that ran counter to the Constitution. And federal courts, generally and the Supreme Court in particular, sometimes had to step in. Also, the story that’s often told is a story of recalcitrance. A story of leaders in the South governmental leaders resisting federal courts: “Segregation now, segregation forever.”

Or much more recently, as folks in Alabama are more aware than anyone the resistance of then-justice Roy Moore with respect to the 10 Commandments, roughly 15 years ago. The 11th Circuit Court of Appeals having to step in and so forth. And I clerked in Alabama. I clerked for Judge Myron Thompson. I’m particularly familiar with that set of events.

There’s also a story of the Supreme Court protecting the interests of the South. Protecting interests, like states’ rights in particular. I think to tell a more balanced story, one would have to really talk about both.

Fred Smith on the Supreme Court protecting interests of Southern governments

Before we began, you mentioned Dred Scott, but I would also mention a case called Prigg v. Pennsylvania, which is a case that involved the fugitive slave clause. A Pennsylvania law said that it was unlawful to use violence or force to remove a runaway slave and take them back to the South. The United States Supreme Court said that that Pennsylvania law was unconstitutional, that it violated Article IV of the Constitution, to have a law that would stand in the way of taking slaves back to the South.

Dred Scott, as you know, is also a case about protecting Southern interests. In that instance, the Supreme Court ruled that it was impossible for people of African descent to ever become citizens. They ruled that, in their words, “the African race has no rights that the white man is bound to respect,” a direct quote from the Dred Scott opinion. That was protecting an institution that was very important to the South.

Fred Smith on the Congress amending the Constitution after the Civil War

In the 1860s, after the Civil War, you then get three new amendments to the Constitution. The 13th, 14th, and 15th Amendments.

The 13th Amendment eradicated slavery and also gave Congress the power to enforce that eradication of slavery. Congress can pass legislation to ensure that there’s not backsliding.

You have the 14th Amendment, which guarantees equal protection under the law, guarantees due process, fundamental rights. Prior to the 14th amendment, it actually was impossible for states, Southern or otherwise, to violate the Bill of Rights. So, if a state wanted to violate someone’s free speech rights or take away someone’s right to bear arms or violate someone’s Fourth Amendment rights and so forth, states were allowed to do that up until the 14th Amendment, which made fundamental rights broadly applicable to states across the country. The 14th amendment also gave Congress power to enforce those particular provisions, which is an important expansion of congressional power that has resulted in items like the Voting Rights Act, for example.

Fred Smith on SCOTUS undermining those actions

What then happened is that the Supreme Court limited, in particular, Congress’s power to enforce those particular amendments. One of the ways that it did so was by saying that Congress can’t get at private racial discrimination, or at least they can’t rely on their power under the 14th Amendment to eradicate private discrimination or private acts of violence.

To the extent that a lot of the violence that was seen in the in the 1870s, 1880s, 1890s, you couldn’t always directly trace it to a government. Surely governments were involved. They were involved by looking the other way. Sometimes government officials were the ones with the hoods and so forth, right? However, to the extent that you couldn’t trace it to the government, the idea was that, well, the 14th amendment is about state action, right? It’s not about private action. And so that that operated as a fairly significant limitation on the ability to get at private acts of discrimination. Or at least acts of discrimination that could be deemed private.

To hear more from Prof. Fred Smith about how the Supreme Court affects the South, listen to the full episode here.

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