Et In Arcadia Ego: Buck v. Davis, Black Thugs, and WKH6XSUHPH&RXUW¶V5DFH-XULVSUXGHQFH Aderson Bellegarde François I. A THOUGHT EXPERIMENT This essay is about the United States Supreme Court decision in Buck v. Davis,1 in which a Texas jury sentenced Mr. Duane Buck to death after his own counsel introduced during the punishment phase of his trial the report and testimony of an expert witness that Mr. Buck was more likely to be violent because he is black. If you will bear with me for a moment I intend to get to the facts of the FDVHDQGWKH&RXUW¶VKROGLQJEXWILUVWDWKRXJKWH[SHULPHQW Try to recall from memory or identify through a word search a majority opinion from the United States Supreme Court in which the justices speak plainly about white supremacy: its text; its subtext; its embodiments in civic and political institutions; its incarnations over time; the remains of its tenets in daily life; the leavings of its creed in the national identity. For purposes of this experiment, let us start from a stripped down definition of white supremacy, according to which WKHSODFHRQHRFFXSLHVLQWKHKLHUDUFK\RIVNLQFRORULVDPHDVXUHRIRQH¶VVRFLDO standing, human agency, and moral worth. Your initial instinct might be to think of Brown v. Board of Education,2 ³perhaps the most important judgment ever handed down by an American 6XSUHPH &RXUW´3 ³WKH VLQJOH PRVW KRQRUHG RSLQLRQ LQ WKH 6XSUHPH &RXUW¶V FRUSXV´4 and ³QRWKLQJVKRUWRIDUHFRQVHFUDWLRQRI$PHULFDQLGHDOV´5 But, truth Director of the Institute for Public Representation Civil Rights Law Clinic, Professor of Law at Georgetown University, and co-author of Brief for the National Black Law Students Association as Amicus Curiae in Support of Petitioner, Buck v. Davis, 137 S. Ct. 759 (2017) (No. 15- 8049). I am grateful to Georgetown University Law Center for the support in researching this essay. ,¶PWKDQNIXOWR3URIHVVRU3HJJ\&RRSHU'DYLVDQGVWXGHQWVLQ&ULWLFDO1DUUDWLYHVLQ&LYLO5LJKWV/DZ seminar at New York University School of Law for their inspiration. Most of all, I am indebted to Professor Deborah Archer, my co-author in the Buck v. Davis Amicus brief. 1 137 S. Ct. 759 (2017). 2 347 U.S. 483, 494 (1954). 3 Paul Finkelman, Civil Rights in Historical Context: In Defense of Brown, 118 HARV.L. REV. 973, 974 (2005) (reviewing MICHAEL J. KLARMAN,FROM JIM CROW TO CIVIL RIGHTS:THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004)). 4 Jack M. Balkin, Brown v. Board of Education: A Critical Introduction, in WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID:THE NATION¶S TOP LEGAL EXPERTS REWRITE AMERICA¶S LANDMARK CIVIL RIGHTS DECISION 3±4 (Jack M. Balkin ed., 2001). 5 RICHARD KLUGER,SIMPLE JUSTICE:THE HISTORY OF BROWN V.BOARD OF EDUCATION AND BLACK AMERICA¶S STRUGGLE FOR EQUALITY 713 (rev. ed. 2004). 229 230 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol. 15:229 be told ³Brown is of continuing significance mostly as a triumphal narrative that, ironically, serves as rhetorical support for the racial status quo and, only RFFDVLRQDOO\DVDGLPUHPLQGHURIDFRQVWLWXWLRQDOZRUOGWKDWPLJKWKDYHEHHQ´6 In an opinion ostensibly about race and education, nowhere does the Court mention that one of the central tenets of American slavery was the legal ban on black education,7 or that a remarkable number of American educational institutions, including our most prestigious Ivy League universities, used slavery to fund their endowments and indeed kept slaves on their campuses,8 or that the first statutory attempts to provide for education of emancipated men and women WKURXJKWKH)UHHGPHQ¶V%XUHDXZHUHPHWZLWKILHUFHUHVLVWDQFH9 or that in the Jim &URZHUDLQIOXHQWLDOVRFLDOVFLHQWLVWVDUJXHGWKDWWKH³EODFNPLQG´ZDVUHFHSWLYH not to education but rather to criminality and that, as such, educating blacks might turn them into more cunning criminals.10 In short, nowhere in the opinion does the Court acknowledge that education had been used as a tool of white supremacy, and that the constitutional harm to blacks was not mere feelings of inferiority but longstanding and systemic inequality that could never be remedied by symbolic² or even real²integration.11 So, if not Brown perhaps you might turn to any number of decisions during the era of Chief Justice Earl Warren that in meaningful ways wrought²at least for a while²a minor Reconstruction by upholding in ways that the original Reconstruction-HUD FRXUW QHYHU GLG &RQJUHVV¶V PRVW VLJQLILFDQW FLYLO ULJKWV legislation: Jones v. Alfred H. Mayer Co.,12 the only modern-era case to rely on the Thirteenth Amendment as a tool against racial subordination; South Carolina v. Katzenbach,13 which upheld the Voting Rights Act of 1965; or Heart of Atlanta Motel v. United States,14 and Katzenbach v. McClung,15 ZKLFKXSKHOG&RQJUHVV¶V 6 LOUIS MICHAEL SEIDMAN,CONSTITUTIONAL LAW:EQUAL PROTECTION OF THE LAWS 146 (2003). 7 See generally HEATHER ANDREA WILLIAMS,SELF-TAUGHT:AFRICAN AMERICAN EDUCATION IN SLAVERY AND FREEDOM (Waldo E. Martin Jr. & Patricia Sullivan eds., 2005). 8 See generally GRAIG STEVEN WILDER,EBONY AND IVY:RACE,SLAVERY, AND THE TROUBLED HISTORY OF AMERICA¶S UNIVERSITIES (2013). 9 See generally Aderson Bellegarde François, Borne Back Ceaselessly into the Past: Fisher v. University of Texas, The Freedmen’s Bureau Act, and the “Originalist” Meaning of Color Blindness, 21 GEO.MASON.L.REV. 313 (2014). 10 KHALIL GIBRAN MUHAMMAD,THE CONDEMNATION OF BLACKNESS:RACE,CRIME, AND THE MAKING OF MODERN URBAN AMERICA 52 (Harvard Univ. Press ed. 2011). 11 See Robert L. Carter, The Conception of Brown, 32 FORDHAM URB. L.J. 93, 98 (2004); DERRICK BELL,SILENT COVENANTS: BROWN V.BOARD OF EDUCATION AND THE UNFULFILLED HOPES FOR RACIAL REFORM 18±19 (2004); Derrick A. Bell, Jr., Comment, Brown v. Board of Education and the Interest-Convergence Dilemma,93HARV.L.REV. 518, 518 (1980). 12 392 U.S. 409 (1968). 13 383 U.S. 301 (1966). 14 379 U.S. 241 (1964). 15 379 U.S. 294 (1964). 2017] ET IN ARCADIA EGO: BUCK V. DAVIS, BLACK THUGS, AND THE 231 SUPREME COURT’S RACE JURISPRUDENCE power under the Commerce Clause to outlaw racial discrimination in privately- owned places of public accommodation. But even a cursory reading of these opinions shows that, however much they tried to repair some of the damage of white supremacy, their overriding rationale and organizing narrative centered on questions of Article I and Reconstruction Amendments on congressional power. So finally, you might step back and wonder whether, faced with the carnage of the Civil War, the first Reconstruction Court might have been moved to engage in an honest reckoning of white supremacy in ways²and to an extent²that later courts with the luxury of looking back on the war from a distant remove were never compelled to do: perhaps Virginia v. Rives,16 Strauder v. West Virginia,17 Ex parte Virginia,18, or even Neal v. Delaware,19 in which the Court held that the Fourteenth Amendment prohibited the exclusion of blacks from jury service and the voting booth. But these cases, taken individually or as a group, rest on a narrow reading of the Reconstruction Amendments that it constituted racially discriminatory state action in violation of the Equal Protection Clause of the Fourteenth Amendment for government entities to deny black jurors and black voters access to what was then referred to as political rights.20 Of course, if I modify the experiment to include dissents and concurring opinions, the task becomes immeasurably easier: assuming you avoid the WHPSWDWLRQ RI UHDGLQJ -XVWLFH +DUODQ¶V Plessy v. Ferguson dissent as more of a challenge to white supremacy than it actually was,21 you might think of Justice Thurgood Marshall in his exile-in-dissent years. In his case, the difficulty would be less in finding such opinions than in choosing which one among the many spoke most plainly of the black experience in America: perhaps his dissent in Regents of the University of California v. Bakke, in which he used four short sentences to say what no other justice managed to say in hundreds of pages of separate opinions: Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his 16 100 U.S. 313 (1880). 17 100 U.S. 303 (1880). 18 100 U.S. 339 (1880). 19 103 U.S. 370 (1881). 20 Id. at 397; Rives, 100 U.S. at 320±21; Strauder, 100 U.S. at 312; Ex parte Virginia, 100 U.S. at 348. 21 Far more than Plessy-XVWLFH-RKQ+DUODQ¶VGLVVHQWVLQWKHCivil Rights Cases and Hodges v. United States, pose a greater challenge to white supremacy by describing the 1787 constitutional order as resting on a racial caste system. Compare Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (Harlan, J., dissenting) with Civil Rights Cases, 109 U.S. 3, 26 (1883) (Harlan, J., dissenting); Hodges v. United States, 203 U.S. 1, 20 (1906) (Harlan, J., dissenting). 232 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol. 15:229 family and friends at the whim of his master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave.22 Or perhaps his dissent in City of Memphis v. Greene, in which Memphis, acting at the behest of white property owners, closed the main thoroughfare between an all- white enclave and a predominantly Negro area of the city. To Justice Marshall ³>W@KHSLFWXUHWKDWHPHUJH>G@LVRQHRIDZKLWHFRPPXQLW\GLVJUXQWOHGRYHU sharing its street with Negroes, taking legal measures to keep out the µundesirable traffic,¶ and of a city, heedless of the harm to its Negro citizens, acquiescing in the SODQ´23 If you wanted to be an intellectually honest contrarian you might suggest that Justice Clarence Thomas, from an altogether opposite perspective and for entirely different motives, has at times been no less frank than Justice Marshall on the subject of white supremacy.