In this groundbreaking book, Risa L. Goluboff offers a provocative new account of the history of American civil rights law. The Supreme Court’s decision in Brown v. Board of Education has long dominated that history. Since 1954, generations of judges, lawyers, and ordinary people have viewed civil rights as a project of breaking down formal legal barriers to integration, especially in the context of public education. Goluboff recovers a world before Brown, a world in which civil rights was legally, conceptually, and constitutionally up for grabs. Then, the petitions of black agricultural workers in the American South and industrial workers across the nation called for a civil rights law that would redress economic as well as legal inequalities. Lawyers in the new Civil Rights Section of the Department of Justice and in the NAACP took the workers’ cases and viewed them as crucial to attacking Jim Crow. By the time NAACP lawyers set out on the path to Brown, however, they had eliminated workers’ economic concerns from their litigation agenda. When the lawyers succeeded in Brown, they simultaneously marginalized the host of other harms—economic inequality chief among them—that afflicted the majority of African Americans during the mid-twentieth century. By uncovering the lost challenges workers and their lawyers launched against Jim Crow in the 1940s, Goluboff shows how Brown only partially fulfilled the promise of civil rights.
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Get in the Game or Get out of the Way: Fixing the Politics of Death
In his insightful new paper, The Supreme Court and the Politics of Death, Professor Stephen Smith analyzes how the Supreme Court has floundered for more than three decades in a failed effort to eliminate the arbitrariness of the death penalty. As Professor Smith explains, the Court has politicized the death penalty and in doing so inadvertently stymied reform efforts. The general public believes capital punishment is reserved for the most heinous offenders while, in reality, the system is skewed in favor of death for those who have had the toughest lives and the worst lawyers. It is enough to leave an observer of the Court utterly despondent.
Yet Professor Smith sees cause for optimism in the Court’s renewed focus on substantive proportionality guarantees—namely the bans on executing the mentally retarded and juveniles—and the imposition of more rigorous standards for effective assistance of counsel. While I am in full agreement with his diagnosis of the problem, I part company with Professor Smith’s view that the Court’s latest approach might succeed where previous efforts have failed. To overplay a metaphor, the Court’s latest jurisprudence amounts to the Court dipping its foot in the water and making some waves. Those waves might be bigger than the ripples in years past, but they are nevertheless small and inconsequential. Moreover, the Court’s decisions keep the public focused on the actions of the judiciary and allow legislators to skate by without taking responsibility for the systemic flaws that pervade capital punishment. If the Court desires to eliminate the arbitrariness of the death penalty, it needs to either take a major step forward or get out of the way so that the political actors can take responsibility. The Court’s categorical exclusions and renewed focus on effective assistance of counsel follow neither of these approaches and thus stand little chance of eliminating the politics of death.
Rediscovering Dangerousness: The Expanded Scope of Reasonable Deadly Force After Scott v. Harris
Though the Supreme Court might think otherwise, it has yet to hear a case where a police officer used deadly force to stop a nondangerous fleeing suspect. The Court recently showed its belief to the contrary in Scott v. Harris, where it found that a fleeing suspect posed a sufficient danger to justify the use of deadly force. In order to reach that conclusion, the Scott Court distinguished Tennessee v. Garner, which had held that a police officer could not use deadly force to stop the fleeing suspect. Although the Scott Court never explicitly questioned Garner’sreasoning, the Court’s distinction implicitly demonstrated a fundamental flaw in Garner’s understanding of dangerousness. Scott showed that dangerousness is not confined to a suspect’s potential to commit crimes after escaping; dangerousness is just as great a concern during the escape itself.