Judiciary Committee Democrats wrote a letter the following week asking the Chief Justice to take appropriate steps to ensure that Justice Alito will recuse himself in any future cases concerning legislation that regulates the Court.
I write to lodge an ethics complaint regarding recent public comments by Supreme Court Justice Samuel Alito, which appear to violate several canons of judicial ethics, including standards the Supreme Court has long applied to itself.
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I write to you in your capacity both as Chief Justice and as Chair of the Judicial Conference because, unlike every other federal court, the Supreme Court has no formal process for receiving or investigating such complaints, and asserted violations by justices of relevant requirements have sometimes been referred to the Judicial Conference and its committees. I include all justices in carbon copy because I am urging the Supreme Court to adopt a uniform process to address this complaint and others that may arise against any justice in the future.
The recent actions by Justice Alito present an opportunity to determine a mechanism for applying the Judicial Conduct and Disability Act to justices of the Supreme Court. Nothing prohibits the Court or the Judicial Conference from adopting procedures to address complaints of misconduct. The most basic modicum of any due process is fair fact-finding; second to that is independent decision-making.
On the Senate Judiciary Committee, we have heard in every recent confirmation hearing that it would be improper to express opinions on matters that might come before the Court. In this instance, Justice Alito expressed an opinion on a matter that could well come before the Court.
As the author of the bill in question and as a participant in the related investigations, I feel acutely the targeting of this work by Justice Alito, and consider it more than just misguided or accidental general opining. It is directed to my work.
Compounding the issues above, Attorney David Rivkin was one of the interviewers in the Wall Street Journal piece, and also a lawyer in the above dispute. This dual role suggests that Justice Alito may have opined on this matter at the behest of Mr. Rivkin himself. Bad enough that a justice opines on some general matter that may come before the Court; worse when the opining brings his influence to bear in a specific ongoing legal dispute; worse still when the influence of a justice appears to have been summoned by counsel to a party in that dispute.
After going two conferences without any new relists, the Supreme Court ended the relist drought this week with a vengeance. We have 12 new relists, several of which are potential blockbusters if the court grants review.
Three of the cases involve constitutional challenges brought against state prohibitions on providing gender-affirming care to minors: United States v. Skrmetti, L. W. v. Skrmetti, and Jane Doe 1 v. Kentucky ex rel. Cameron. Last year, Tennessee and Kentucky were among a group of more than 20 states that enacted laws that prohibit giving transgender youths under the age of 18 medical treatment to align their appearance with their gender identity.
In 1892, an African American man named Homer Plessy refused to give up his seat to a white man on a train in New Orleans, as he was required to do by Louisiana state law. Plessy was arrested and decided to contest the arrest in court. He contended that the Louisiana law separating Black people from white people on trains violated the "equal protection clause" of the Fourteenth Amendment to the U.S. Constitution. By 1896, his case had made it all the way to the United States Supreme Court. By a vote of 8-1, the Supreme Court ruled against Plessy. In the case of Plessy v. Ferguson, Justice Henry Billings Brown, writing the majority opinion, stated that:
"The object of the [Fourteenth] amendment was undoubtedly to enforce the equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to endorse social, as distinguished from political, equality. . . If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane."
The lone dissenter, Justice John Marshal Harlan, interpreting the Fourteenth Amendment another way, stated, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Justice Harlan's dissent would become a rallying cry for those in later generations working to declare segregation unconstitutional.
(Note: Some of the case information is from Patterson, James T. Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy. Oxford University Press; New York, 2001.)
Despite the Supreme Court's ruling in Plessy and similar cases, people continued to press for the abolition of Jim Crow and other racially discriminatory laws. One particular organization that fought for racial equality was the National Association for the Advancement of Colored People (NAACP) founded in 1909. From 1935 to 1938, the legal arm of the NAACP was headed by Charles Hamilton Houston. Houston, together with Thurgood Marshall, devised a strategy to attack Jim Crow laws in the field of education. Although Marshall played a crucial role in all of the cases listed below, Houston was the head of the NAACP Legal Defense and Education Fund while Murray v. Maryland and Missouri ex rel Gaines v. Canada were decided. After Houston returned to private practice in 1938, Marshall became head of the Fund and used it to argue the cases of Sweat v. Painter and McLaurin v. Oklahoma Board of Regents of Higher Education.
Unwilling to accept the fact that the University of Maryland School of Law was rejecting Black applicants solely because of their race, beginning in 1933 Thurgood Marshall, who was rejected from this law school because of its racial acceptance policies, decided to challenge this practice in the Maryland court system. Before a Baltimore City Court in 1935, Marshall argued that Donald Gaines Murray was just as qualified as white applicants to attend the University of Maryland's School of Law and that it was solely due to his race that he was rejected. He argued that since law schools for Black students were not of the same academic caliber, at the time, as the University's law school, the University was violating the principle of "separate but equal." Marshall also argued that the disparities between the law schools for white students and Black students were so great that the only remedy would be to allow students like Murray to attend the University's law school. The Baltimore City Court agreed, and the University appealed to the Maryland Court of Appeals. In 1936, the Court of Appeals ruled in favor of Murray and ordered the law school to admit him. Two years later, Murray graduated with his law degree.
Beginning in 1936, the NAACP Legal Defense and Education Fund decided to take on the case of Lloyd Gaines, a graduate student of the HCBU Lincoln University in Missouri. Gaines had applied to the University of Missouri Law School but was denied admission because of his race. The State of Missouri gave Gaines the option of either attending a Black law school that it would build (Missouri did not have any all-Black law schools at this time) or Missouri would help to pay for him to attend a law school in a neighboring state. Gaines rejected both of these options and, with the help of Thurgood Marshall and the NAACP Legal Defense and Education Fund, he sued the state to attend the University of Missouri's law school. By 1938, his case reached the U.S. Supreme Court, and, in December of that year, the Court sided with him. The six-member majority stated that since law school for Black students did not exist in the State of Missouri, the "equal protection clause" required the state to provide within its boundaries a legal education for Gaines. In other words, since the state provided legal education for white students, it could not send Black students, like Gaines, to school in another state.
Encouraged by their victory in Gaines' case, the NAACP continued to attack legally sanctioned racial discrimination in higher education. In 1946, an African American man named Heman Sweat applied to the law school at the University of Texas whose student body was white. The University set up an underfunded law school for Black students. However, Sweat employed the services of Thurgood Marshall and the NAACP Legal Defense and Education Fund and sued to be admitted to the University's law school attended by white students. When the case reached the U.S. Supreme Court in 1950, the Court unanimously agreed with him, citing as its reason the blatant inequalities between the University's law school (the school for white students) and the hastily erected school for Black students. In other words, the two schools were "separate," but not "equal." Like the Murray case, the Court found the only appropriate remedy for this situation was to admit Sweat to the University's law school.
In 1949, the University of Oklahoma admitted George McLaurin, an African American male, to its doctoral program. However, it required him to sit apart and eat apart from the rest of his class. McLaurin sued to end the practices, stating that they had an adverse impact on his academic pursuits. McLaurin was represented by Thurgood Marshall and the NAACP Legal Defense and Education Fund. It eventually went to the U.S. Supreme Court. In an opinion delivered on the same day as the decision in Sweat, the Court stated that the University's actions concerning McLaurin were adversely affecting his ability to learn and ordered that the practices cease immediately.
The case that came to be known as Brown v. Board of Education was actually the name given to five separate cases that were heard by the U.S. Supreme Court concerning the separate but equal concept in public schools. These cases were Brown v. Board of Education of Topeka, Briggs v. Elliot, Davis v. Board of Education of Prince Edward County (VA.), Bolling v. Sharpe, and Gebhart v. Ethel. While the facts of each case were different, the main issue was the constitutionality of state-sponsored segregation in public schools. Thurgood Marshall and the NAACP Legal Defense and Education Fund handled the cases. 152ee80cbc
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