Goff and his men had an explanation for the “accident.” They told the sheriff they’d only taken Howard down to the river so the boy’s daddy could give him a whipping. But Howard jumped into the river instead, drowning himself.
James Howard was threatened into supporting Goff’s version. Three days later, the Howards sold their house and left town. But not before Thurgood Marshall stepped in and requested that Florida Gov. Spessard Holland demand an investigation. The governor condemned the killing but told Marshall, “I am sure you realize the particular difficulties involved where there will be the testimony of three white men and probably the girl against the testimony of one Negro man.”
Marshall’s NAACP friend Harry T. Moore believed it was “a waste of time to seek help from state authorities.” He’d investigated dozens of lynchings in Florida and concluded, “The life of a Negro in Suwannee County is a very cheap article.”
Despite Marshall’s efforts, a Florida grand jury declined to indict Goff and his two accomplices. The Department of Justice never moved on the case, and the killing of Willie James Howard was soon forgotten.
– From “Florida’s History of Failed Justice,” by Gilbert King
Along with his fellow Republicans, Jeff Sessions spent much of the first day of Elena Kagan’s confirmation hearings weirdly taking aim at the storied judicial career ofThurgood Marshall. Why? Because Marshall was an enemy of originalists, and the senators wanted to portray Kagan, who clerked for him, as cut from the same ideological cloth.
Later in the day, though, Sessions compared the Supreme Court’s decision in Citizens United, which granted corporations the right to make unlimited political donations, toBrown v. Board of Education, the landmark civil-rights case that declared de jure racial segregation unconstitutional. In the Citizen’s United case, he said, the court went back to the principles of the Constitution to apply equal protection of the laws.
“Is it treating people equally to say you can go to this school because of the color of your skin and you can’t?” Sessions asked rhetorically. “We’ve now honestly concluded and fairly concluded that it violates the equal protection clause.”
How is that like Citizens United? “I think this Court, when they said ‘Wait a minute! If you’re talking about a precedent that says the government can deny the right to publish pamphlets, then we’ve got get rid of this one outlier case Austin — 100 years of precedent — and go back to what the Constitution [says].’ I don’t think that’s activism.”
Buried in this tortured analogy is a pretty illustrative example of how amorphous originalism actually is. The decision in Brown, arguably the most famous case taken on by the legendarily activist Warren Court, was (and still is) decried by many conservatives as judicial overreach. Yet as Sherilyn Ifill points out, Chief Justice Roberts actually invoked Brown in the Citizens United ruling precisely because it eschewed precedent; “if the court never departed from precedent, ‘segregation would be legal.’”
Because Brown is one of those moments that affirms the goodness of American character, and because its fundamental rightness is taken as a given now (in a way that certainly was not true when it was decided), it’s often brought up this way by conservatives, as a cover for expansive readings of the Constitution that bring about results favorable to their ends.
So they want to give corporations new ways to involve themselves in the political process but are bound by campaign finance laws from doing so? No worries! Just sprinkle some Brown on it.