Today marks the 53rd anniversary of Loving v. Virginia, the Supreme Court decision striking down bans on inter-racial marriage in sixteen states.  The case was argued on April 10, 1967, and announced just two months later, on June 12.

Mildred and Richard Loving in 1967

Looking back on the oral arguments in the case, several points stand out.  First, the momentum in the case was clearly on the side of those challenging these offensive laws.  The winds of change were behind them, and the Justices were clearly with them.  Philip J. Hirschkop, the ACLU lawyer who made the equal protection argument for the challengers (another lawyer made the due process argument) spoke with almost no interruption from the bench.  His central argument was stark and direct.  “You have before you today what we consider the most odious of the segregation laws and the slavery laws and our view of this law, we hope to clearly show is that this is a slavery law,” he told the Justices.  He later made the point more concisely: “These are slavery laws pure and simple.”  Hirschkop also compared the law to the policies of Nazi Germany and South Africa.  Those who passed these laws “were not concerned with the racial integrity,” he argued, “but racial supremacy of the white race.”

When Virginia’s assistant attorney general defended his state’s anti-miscegenation policy, by contrast, he faced an engaged and skeptical bench.  Chief Justice Earl Warren and Justice Hugo Black were particularly aggressive.  Virginia’s legal defense had two prongs.  Its primary argument was based in history.  The framers of the Fourteenth Amendment did not intend it to prohibit these kinds of regulations, and therefore the Court should not read it to do so.  (The challengers countered that the proper originalist analysis should not focus on the narrow intentions of the framers but on the more general purposes of the Amendment.)  Virginia’s lawyer knew that this was his strongest line of argument and he spent most of his time elaborating on it.  The problem here—as he surely knew—was that he was talking to a Court that simply did not feel constrained by these kinds of arguments.

Virginia’s second line of defense was that the state had a rational basis for its policy. These were the arguments that led Chief Justice Warren and Justice Black to lash out at the attorney.  The core of this argument, in the words of the assistant attorney general, was that according to “the most recent available evidence on the psycho-sociological aspect of this question … intermarried families are subjected to much greater pressures and problems then those of the intramarried.”  For this reason, Virginia’s “prohibition of interracial marriage … stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage or the prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent.”  In challenging these kinds of claims that anti-miscegenation policy was intended to promote social welfare, Chief Justice Warren looked back to the Brown v. Board of Education decision he had written thirteen years earlier.  “[D]idn’t we in the segregation cases  have also argued to us what was supposed to be scientific evidence to the … effect that whites would be injured by having to go to school with … the Negroes?” he asked.  In response, Virginia’s lawyer insisted that with regard to miscegenation, the scientific evidence is “voluminous in its character” and it “supports the view not of racial superiority or inferiority, but a simple matter of difference.”  Warren at one point noted that the list of states that had school segregation laws in 1954 and the states that have miscegenation laws in 1967 was nearly identical.   At the conclusion of the lawyer’s presentation, instead of the Chief Justice’s traditional “thank you,” a clearly disgusted Warren could only muster a dismissive “I see.”

Justice Black’s skepticism also hearkened back to his experience in Brown.   When Virginia’s lawyer referenced what he characterized as the extensive and conflicting scholarship on the societal effects of interracial marriages, Black stepped in.  “[A]side from all questions from the genetics, psychology, psychiatry, sociology, and everything else aside from all of them, forgetting it for the moment, is there any doubt in your mind that the object of this statute, the basic premise on which they rest, is that the white people are superiors of the colored people and should not be permitted to marry?”   Black had been dismissive of the sociological and psychological materials that had made its way into the Brown decision.  He had framed the issue in that case in similarly stark terms, telling his colleagues he did not need social science to tell him about the meaning and effects of racial segregation.

Another striking moment at oral argument came when Bernard S. Cohen, the lawyer who was responsible for making the due process-based challenge to the anti-miscegenation statute, framed the possible legal pathways for identifying marriage as an unenumerated fundamental right under the Constitution.  He offered up the following marathon sentence—one that could only be offered (with a straight face) to the Supreme Court at the highwater mark of the Warren Court:

Now, whether one articulates in terms of the right to be free from racial discrimination as being due process under the Fourteenth Amendment or whether one talks of the right to be free from infringement of basic values implicit in ordered liberty as Justice Harlan has said in the Griswold case, citing Palko v. Connecticut or if we talk about the right to be free from arbitrary and capricious denials of Fourteenth Amendment liberty as Mr. Justice White has said in the concurring opinion in Griswold or if we urge upon this Court to say as it has said before in Meyer v. Nebraska and Skinner v. Oklahoma that marriage is a fundamental right or liberty and whether we go further and urge that the Court say that this is a fundamental right of liberty retained by the people within the meaning of the Ninth Amendment and within the meaning of liberty in the Due Process Clause of the Fourteenth Amendment.

Wow.  The possibilities here!  For the ambitious liberal cause lawyer, it must have been quite an experience standing before the Justices in 1967 and charting the potential courses the Warren Court might strike out on.

Then there was the moment during oral arguments when one of the lawyers for the Richard and Mildred Loving, the mixed-race couple who were married in Washington, D.C., and then arrested when they attempted to return to their native Virginia, put the case in the most personal possible terms.: “No matter how we articulate this, no matter which theory of the Due Process Clause or which emphasis we attach to, no one can articulate it better than Richard Loving when he said to me, ‘Mr. Cohen, tell the Court I love my wife and it is just unfair that I can’t live with her in Virginia.’”

Finally, one cannot listen to the oral arguments in Loving without hearing echoes of our recent debate over the constitutionality of bans on same-sex marriage.  We hear the same basic arguments blending equal protection and due process claims.  We hear challengers frame the issue in personal and moralistic terms while defenders rely on originalist arguments, social scientific debates, and pleas for judicial deference.  And we see the tide of history turning in the space of a single generation.

This Post was Written by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

On this day in 1944, the Supreme Court, in the landmark case of Smith v. Allwright, struck down the Texas Democratic Party’s policy of excluding African Americans from participating in its primary election.

Texas state law authorized the state’s Democratic Party to establish its own operating rules. Among these rules was a requirement that all primary voters be white. Lonnie E. Smith, a black voter in Harris County, Texas, sued his county election official, S.S. Allwright, arguing that the Constitution prohibited Texas from allowing the state’s Democratic Party to  practice racial exclusion in its primary election.

The Democratic Party had controlled politics in the South since the late nineteenth century. Democrats dominated southern state and local offices and most federal representatives from the South were Democrats. In most southern states, the only competitive election was the Democratic primary. When the Democratic Party prevented African Americans from participating in their primaries, it effectively blocked southern blacks from casting the one vote that really mattered. The white primary combined with other forms of disfranchisement—poll taxes, literacy test, physical intimidation—to deprive black Texans, as well as other racial minorities, of the vote.

Texas defended itself against Smith’s lawsuit by arguing that the Democratic Party was a private association, so the state was not responsible for the party’s racial discriminatory policy. The Supreme Court rejected this argument. In an 8-1 decision, with Justice Stanley F. Reed writing for the majority, the Court found that the Texas policy that empowered political parties and gave them discretion to make their own rules violated the Constitution when it resulted in racial discrimination. Even though the Democratic Party of Texas is a voluntary association, the Court found primary elections were conducted by the party under state authority. The Court found the Texas policy infringed on Smith’s Fifteenth Amendment right to vote and also denied Smith his Fourteenth Amendment right to equal protection under the law. The Court reasoned that just like the right to vote afforded to citizens during general elections, citizens have that same right to participate in a primary election without racial discrimination.

This decision had widespread implications for black participation in Texas politics, although many discriminatory voter registration policies remained. By 1948, four years after Allwright, the number of registered black voters in the South rose to 800,000; by 1952 it reached over one million.

Smith’s efforts in Allwright also inspired Houston resident Barbara Jordan to pursue a political career. She would become the first African American elected to the Texas Senate since Reconstruction and then the first southern African-American woman elected to the United States House of Representatives.

This Post was Written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, and edited by  ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

On March 28th, 1836, Roger B. Taney became the fifth Chief Justice of the United States. He succeeded John Marshall, arguably the most consequential justice in the history of the Supreme Court. Although Taney would achieve much during his time on the Court, history would not judge Taney’s tenure nearly as positively as that of his predecessor.

Taney was appointed by President Andrew Jackson, with whom he had been closely allied throughout his career. Taney had supported Jackson in both the 1824 and 1828 presidential elections, and had served as Jackson’s Maryland campaign manager in 1828.

Jackson rewarded Taney’s loyalty when, in 1831, he made him Attorney General. Taney would play a crucial role in Jackson’s “Bank War” by encouraging and supporting the president’s goal of eliminating the Second Bank of the United States. After being appointed interim Secretary of the Treasury, Taney helped Jackson remove federal deposits from the national bank and deposit them with state banks. Taney’s nomination to become the Treasury Secretary failed, the first time the Senate rejected a president’s cabinet nominee.

In early 1835, Jackson nominated Taney to fill the vacancy on the Supreme Court created by the retirement of Justice Gabriel Duvall. Jackson’s opponents in the Senate blocked the confirmation vote, however. In the next legislative session, Jackson and Taney fared better, and on March 28, 1836, Taney was confirmed; the Senate vote was 29 – 15.

During his twenty-eight years as Chief Justice, Taney presided over numerous important cases, such as Luther v. Borden, the License Cases, and the Prize Cases. He is most remembered, however, for his opinion for the Court in the case of Dred Scott v. Sanford. In an opinion widely regarded as among the most ignominious in the Court’s history, Taney wrote that decedents of African-born slaves, whether free or enslaved, were not United States citizens. Taney also concluded that Congress lacked the authority to regulate slavery in the territories, that the Missouri Compromise of 1820 was unconstitutional, and that slaves were property protected under the Fifth Amendment. Dred Scott wouldbe overruled after the Civil Ear by the Fourteenth Amendment, which was ratified in 1868 and stated that “[a]ll persons born or naturalized in the United States . . .” were citizens of the United States.

During the Civil War, Taney tried to constrain President Lincoln’s authority to prosecute the war, although to little effect. Taney served on the Court until his death on October 12, 1864. President Lincoln filled Taney’s vacant seat with Salmon P. Chase, a staunch anti-slavery Republican.

This Post was Written by ISCOTUS Fellow Alec Bodendorfer, Chicago-Kent Class of 2022, and edited by  ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

On this day in 1869, Congress increased the number of justices on the Supreme Court from seven to nine—where it has remained ever since. (Whether the number should remain at nine has been a point of renewed attention in recent months.)

In 1866, Congress had reduced the number of Supreme Court justices to seven. Republicans who controlled Congress were battling President Andrew Johnson (a Democrat who had assumed office when Lincoln was assassinated), and they sought to deny Johnson any appointments to the Court. By 1869, Ulysses Grant, a Republican, had replaced Johnson, and Congress expanded the number of justices. Senator Lyman Trumbull sponsored the Judiciary Act of 1869, which, in addition to setting the number back to nine, also required six justices to form a quorum. President Grant signed the legislation and then nominated William Strong and Joseph Bradley to the newly restored seats.

The Act contained other notable provisions. It allowed all federal judges (including Supreme Court justices) to retire with full salary after serving for at least 10 years, provided they had turned 70. Previously, federal judges had no incentive to leave the court before their death, as the government offered no retirement benefits. The Act also created separate circuit judges for the circuits, and it allotted each Supreme Court justice one of the nine circuits in which that justice had to attend at least one term in each of the circuit’s districts every two years.

This Post was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.