In the episode of "Consider the Constitution," host Dr. Katie Crawford-Lacky interviews constitutional law expert Prof. F. Michael Higginbotham. They discuss the role of the Supreme Court in American life, past and present. Higginbotham explains the court's function in interpreting laws and determining their consistency with the Constitution. They also discuss key Supreme Court cases, including Marbury vs. Madison, which established judicial review, and Plessy vs. Ferguson, which upheld racial segregation. Higginbotham highlights the importance of the Brown vs. Board of Education case in ending segregation in education.
In the episode of "Consider the Constitution," host Dr. Katie Crawford-Lacky interviews constitutional law expert Prof. F. Michael Higginbotham. They discuss the role of the Supreme Court in American life, past and present. Higginbotham explains the court's function in interpreting laws and determining their consistency with the Constitution. They also discuss key Supreme Court cases, including Marbury vs. Madison, which established judicial review, and Plessy vs. Ferguson, which upheld racial segregation. Higginbotham highlights the importance of the Brown vs. Board of Education case in ending segregation in education.
Announcer:
Welcome to Consider the Constitution, the podcast that cuts through the noise and provides insight into constitutional issues that directly affect every American. Hosted by Dr. Katie Crawford-Lacky and featuring interviews with constitutional scholars, policy and subject matter experts, heritage professionals, and legal practitioners. We examine the rights and responsibilities of citizenship. Consider the Constitution is brought to you by the Robert H. Smith Center for the Constitution at James Madison's Montpelier.
Dr. Katie Crawford-Lacky:
Hello and welcome back to Consider the Constitution. I'm your host, Dr. Katie Crawford-Lacky, director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier. Today, we are taking a closer look at the important role the Supreme Court plays an American life past and present. Joining us is a brilliant legal mind, F. Michael Higginbotham. Michael is a law professor and author and international political consultant. He's an expert on civil rights, human rights, and constitutional law, and he has taught and written extensively on racial equity issues for over 30 years. A professor of law at the University of Baltimore, Michael also currently serves as an advisor to Maryland Senior Senator Ben Cardin. Professor Michael Higginbotham, welcome back to Montpelier and welcome to Consider the Constitution.
Prof. F. Michael Higginbotham:
Well, it's wonderful to join you today. It's always great to be back in Montpelier where the Constitution was originally thought of.
Dr. Katie Crawford-Lacky:
Michael, you bring a rich perspective to our conversation today as you've been immersed in the legal system for a long time as a scholar, a practitioner, and as an educator. You've studied law extensively. You graduated magna laude from Brown University with a BA. You earned a juris doctorate degree from Yale University and a master of law degree with honors from Cambridge University where you were a rotary scholar. You practice law at the Public Justice Center and served as a law clerk with the United States Court of Appeals. And of course, you're a teacher, a law professor at the University of Baltimore. So taking all of that into consideration, drawing on this vast amount of knowledge and experience that you have, can you start us off with an overview of the Supreme Court's role both past and present?
Prof. F. Michael Higginbotham:
Well, the court's role is a very important one in our constitutional democracy. We have three branches of government, the legislative branch, the executive branch, and the judicial branch. And the Supreme Court is the leader of the judicial branch. There are separate and distinct roles for each one of those three branches. The legislative branch passes the laws, the executive branch enforces those laws, and the judicial branch interprets the laws. And so the role of the Supreme Court is interpreting the law, is determining whether or not laws are consistent with our constitution or whether they conflict with it. And that's a very, very important role.
Dr. Katie Crawford-Lacky:
And we are speaking today from our recording studio here at James Madison's Montpelier in Orange County, Virginia. It was here in Virginia's Piedmont area that Madison then in his mid 30s articulated the core ideas that informed the Constitution. And he formulated these ideas here at Montpelier, a plantation and home to six generations of men and women held in bondage. The reality of Montpelier and Madison's time was in complete contradiction to his lofty ideals. And so Montpelier is a place of many stories that are hard to grapple with. And I think this conversation is relevant to what you teach and write about in regard to the Supreme Court and the legal system. Can you talk about this contradiction between freedom and unfreedom and how it translates to the justice system?
Prof. F. Michael Higginbotham:
Sure. Happy to do so. James Madison was a brilliant person, no question about that. And he articulated and conceived of a number of important concepts in our constitution that existed then and that exists now. One of those concepts, separation of powers. I talked about the role of the court a little bit earlier. So there are three separate and distinct branches. Those branches have a check on the other branches. And so, no one branch has unlimited powers. This is known as the concepts of checks and balances. It's a very important concept that James Madison initially articulated. And it's one that's with us today.
We also had a concept of enumerated powers that you have a separate and distinct branches of government. They each have distinct powers and authority, and those must be articulated in the constitution. The power must be given to the branch, and if it's not given to that particular branch, then it's reserved for the states or for the people. Those are really, really powerful concepts that were created, but Madison and the founders weren't perfect. And as you indicated in your question, there were some real conflicts. There were some real inconsistencies. One of the biggest ones, of course, was that the founders articulated freedom for themselves but did not prohibit race-based slavery. And so when you visit Montpelier, you see the stories of James Madison and his family, but you also see the stories of those who were enslaved on the plantation here at Montpelier. And it's a real contradiction. But who we were doesn't have to be who we are today. And so we are very different today than we were in 1789.
Dr. Katie Crawford-Lacky:
And I bring a historian's lens to this conversation. When I study American history, I don't find one singular moment or decision that led us to where we are now. There are in fact many different points, many different decisions, actions taken and so on. In your scholarship, you talk about those periods in American history when there was an opportunity for change. I'm curious to learn more about what you mean by that and what periods stand out as being potential moments for change?
Prof. F. Michael Higginbotham:
Four distinct periods stand out in my mind. And of course the first one being the founding period where we were creating a new country, creating a new constitution and articulating the rights and principles and privileges that people were entitled to as American citizens. And so that was an opportunity. I mean, if you listen to the Declaration of Independence, the self-evident truths that all are created equal, I mean, that was an opportunity to define who we mean by We the People. And that opportunity was taken, mistakes were made.
A second period is the reconstruction period after the Civil War when the original Constitution as characterized by the abolitionist William Lloyd Garrison being a covenant with death and an agreement with hell because slavery was permitted. When that original constitution, the defect was changed. We had a 13th Amendment prohibiting slavery. We had a 14th Amendment that introduced the concept of equality into our constitutional deliberations. That was an opportunity for change as well. And we made tremendous strides at that time, but we also reversed it during the Jim Crow period.
And so the third opportunity was the Civil Rights Movement In the 1960s. Tremendous strides were also made then. It's known as the second reconstruction where we passed tremendous civil rights laws, anti-discrimination laws in public accommodations, in housing, in voting. And we also initiated affirmative action programs in education and in employment. And so tremendous strides were made in terms of creating equal opportunity for all given our history of race discrimination and segregation and slavery. But if you look at these periods of progress, we would take two steps forward, but often we would take one step backward. And if you look at the reconstruction period, and then Jim Crow, you look at the civil rights movement and then a very conservative backlash that turned the clock back on the advances that had been made, we see those periods of change, but we also see regression taking place.
And I said four periods, and I know that our listeners are saying, "Hey, that's only three." The fourth period is today. I think there's a tremendous opportunity to make huge changes in terms of economic and racial and gender justice in our society. And so I know a lot of people look at today as perhaps very scary, very dangerous period, but it's also an opportunity. It's an opportunity to stand up for who we believe we are as Americans. And as I said earlier, who we were, the mistakes that we made at a past doesn't have to be who we are today. We can be very different.
Dr. Katie Crawford-Lacky:
I appreciate that comment. I think a lot of times we look at the past as something far distant and maybe disconnected from today, but every day we are writing this story. We are writing American history, and we need to, one, grapple with the past, but also find out and act on what we want to see today and for the future. And that's where past, present, and future all connect.
Now, in a previous episode of this podcast series, Dr. Lauren Bell spoke to us about the 1803 Supreme Court case, Marbury versus Madison, which established judicial review. And yes, that's James Madison. First, what is judicial review and why was its establishment so significant? And second, why is the founding era a moment of opportunity for change?
Prof. F. Michael Higginbotham:
You mentioned the Marbury versus Madison Case. It's a fascinating case, amazing case. It's the first case I talk about in my constitutional law class. And as you mentioned, the Madison that is mentioned as a name in the case is James Madison. But they are also, involved in that case, five individuals that were famous individuals, founding fathers. You had John Adams as the outgoing president. You had John Marshall as his Secretary of State and who would become, of course, the chief justice of the Supreme Court. You had the incoming president, Thomas Jefferson, and you had his Secretary of State, James Madison, and you also had William Marberry who wanted a job. And so the case had tremendous players, famous players in it, which makes it fascinating to look at. But it also is one of the most important constitutional cases because in the case, the Supreme Court indicated that they had the power of judicial review. And that meant that they could strike down legislation passed by Congress that the court believed was inconsistent with the Constitution, that conflicted with some provision in the Constitution.
That was a radical change because courts in England didn't have that power. And most Americans at the time did not think that the Supreme Court had that power in America. And so when the court articulated that power, it was a surprise to many, including I think Thomas Jefferson, the current president at the time. But what I asked my students, and this is the most significant aspect of the case, what I asked my students is, "Who was the real winner?" And if you look at the case, the real winner is the American people because the court articulated the power of judicial review, which gave the judicial branch more power, more of a check on the other two branches. And that allowed for a more equitable balance that we have seen over the years from 1789 to the present that has allowed more of a check on the other two branches.
And if you know our history, you understand that the founders believe that the legislative branch was the most dangerous branch, and that's why the legislative branch has more checks on it in this distribution of power. There are two houses in the legislative branch. That's not an accident. That's because it makes it harder for the legislative branch to act, to pass legislation. And so when you think about what the framers were most afraid of in 1789, it was unchecked power. It was the power of the king. And so, the legislative branch was viewed actually as the most powerful branch in our constitutional democracy, and therefore had more checks on it.
Dr. Katie Crawford-Lacky:
It's interesting to consider, one, that the way our government is structured is really a reflection of what the founders were experiencing and reacting to in 1787. This case is a great example of how they are trying to figure it out as they go. They are shaping what the government looks like, what the country looks like, much as we are doing today still. And as we continue this conversation, I think it's important to touch on the 1896 Plessy versus Ferguson case. And as you noted, the Marbury versus Madison Case is a real shining moment for the Supreme Court. It's a big win for the American people. But Plessy versus Ferguson is very much the opposite. It demonstrated the, in my opinion, fallibility of the courts. Can you share more with us about the case?
Prof. F. Michael Higginbotham:
Sure. And I think your opinion is a correct opinion. The courts are fallible, they're not perfect. And the Plessy decision, there's a book called Black Mondays, which is, it talks about the 10 worst Supreme Court decisions. And the number one worst decision according to that book is the Dred Scott decision in 1857. But I think Plessy is the worst decision by the court. And the reason why is because in 1857, we did not have an equality component in the Constitution. As I mentioned earlier, the defect of allowing slavery was corrected by the 13th and 14th Amendments in 1865 and 1868.
The Plessy decision is one of the first ones to interpret the equal protection clause that was put in the Constitution in 1868. And the reason why Plessy is such a bad case is because in interpreting that equality provision, they defined it in a way that I think most people find difficult to accept and difficult to understand with why it was put in the Constitution in the first place, though. So the court's interpretation didn't make much sense in terms of the original intent of those who put the 14th Amendment into the Constitution.
Here's the really real devastation of the Plessy decision and the inconsistency and hypocrisy of the justices in the majority. And it was a 7-1 decision, so you did have a dissent. But the justices in the majority characterized the Louisiana statute that separated Blacks and whites on the train. They characterized that statute as protecting the rights of association. They basically said, "If whites on the train don't want to sit with Blacks, they shouldn't have to. And so therefore, this legislation requiring separation on the train protects association rights. It protects choice." And then they add it at the end of the case, "If Blacks and whites are to interact, it must be the result," and I quote, "of mutual appreciation, natural affinities and voluntary consent."
If the majority of justices really believed this was about association rights, about protecting association, and they wanted to uphold Louisiana's power to segregate, I mean easily, they could have said, "Hey, you can't segregate. It's inconsistent with our notion of equality." But if they wanted to uphold Louisiana's right to segregate and they did believe this was about protecting association rights, then they would've required the state of Louisiana to have three cars and not two, because a car for whites, a car for Blacks, and then a car for those with mutual appreciation and voluntary consent. But they didn't. That's the real fallacy of the Plessy decision.
The justices said, "This is about protecting choice, but in reality, they took the choice away from Americans." And so for 60 years, Americans were separated from birth to death. And almost everything from hospitals to cemeteries, every aspect of American life, the government had the power to separate. And if you look at how the Supreme Court interpreted separate but equal, they basically interpreted as separate but substantially equal. And therefore what happened was, like for education states, many states gave $10 for white children to be educated and $1 for Black children, and the court said, "Oh, that's substantially equal. That's separate and substantially equal."
So the Plessy decision not only allowed Americans to be separated, but it also allowed Americans to be treated unequally based on race, and it had devastating consequences. Plessy on the train, it didn't matter that much if he was segregated out because he was going to get to the same place as everybody else on the train. Train was going to Coventry, Louisiana. So they were going to get off at the same place. But when you apply that principle to education, you understand that people are not going to end up in the same place. And that's why it was so devastating. It was devastating because it created tremendous disparities between the races.
And the one other thing I would add, it would've been really interesting to see if the Supreme Court gave Americans a choice, who would've been in the third car? I know I would've been in the third car, and I suspect many, many Americans would've been in that third car. It would've been fascinating to see where that third car would be in 1954 and where the other two cars would've been in 1954.
Dr. Katie Crawford-Lacky:
I've never heard the case described quite like that and broken down in that way. You just referenced 1954, and that is the other half of this story about separate but equal, that concept that the Supreme Court articulated in the Plessy versus Ferguson case. Can you talk about what happened in 1954?
Prof. F. Michael Higginbotham:
Sure. 60 years later, Justice Harlan, who dissented in 1896, Justice Harlan said... And he's known as the great dissenter. He dissented in a number of the cases back then. And if his view of the Constitution had been the majority view, we probably would've been in a lot better shape in terms of equality and justice in 1954. But 60 years of Jim Crow, separate but unequal. And then you have the Brown decision. The Brown decision, a lot of people get credit for the Brown decision. It basically adopted Justice Harlan's dissent in 1896 and said, "The government cannot separate individuals on the basis of race. That separation violates our notion of equality, so therefore the government can't segregate on trains. It can't segregate in other areas as well." It's an important decision because it stopped America from basically becoming what South Africa became during the apartheid years. South Africa segregated its entire society, especially in housing and in education. The Brown decision stopped that from happening in America. And so it's significant.
Dr. Katie Crawford-Lacky:
And this is the Brown versus Board of Education of Topeka, Kansas?
Prof. F. Michael Higginbotham:
That is correct. And the Brown decision basically said the state can't separate individuals in education. And the reason why it can't, this is an interesting aspect of the Brown decision, you initially had it argued in 1952 and you had a court that changed in 1954 when Chief Justice Earl Warren was appointed to replace Justice Van Devan. Earl Warren wanted a unanimous decision. There were two justices from southern states that were going to dissent. And he did not want that because he thought it would send a message to the country that this was a northern decision and that southern states didn't need to follow it. And so he wanted a unanimous decision. He adjusted some language that, "We're not going to reverse Plessy. We'll just say if they knew what we knew in '54, they would've ruled differently in 1896." He also said that education was very valuable in 1954, even more valuable, even more part of our democracy than it was in 1896.
And so they had a 9-0 decision, which was very, very significant. But in terms of people getting credit, not only does Justice Warren get some credit, but also Thurgood Marshall. Marshall, of course, was the chief legal person who developed a strategy. He and his former professor and mentor, Charles Hamilton Houston, they developed a strategy to challenge racial segregation, to challenge Plessy, and they won a series of cases beginning in the mid 1930s that led up to the 1954 decision. And so when you start thinking about who deserves credit, certainly Chief Justice Earl Warren, but also Thurgood Marshall, his legal team and the strategy that they developed. Very much the result of a great deal of effort on their part and on the part of many Americans.
Dr. Katie Crawford-Lacky:
As we start to wrap up our conversation, I'm eager to hear your thoughts about how you see the past informing the present in terms of how America's legal system is structured and practice today.
Prof. F. Michael Higginbotham:
I think as I mentioned earlier, there are some tremendous concepts that Americans need to really appreciate. We are very, very fortunate to have had individuals like James Madison put these concepts into our legal system, separation of powers, concept of federalism where you have a federal branch of government and you have state and local governments, independent press, independent judiciary. These are very, very important concepts. But we made some mistakes.
And so as we evolve, there are many things that we can continue to do to make America live up to its promise, it's self-evident truth that all are created equal. And so we have tremendous disparities today in our society in terms of race because of our history. We also have tremendous disparities in terms of wealth, tremendous disparities in terms of gender, and in terms of other aspects of our society that should be addressed today. And I think that the legal system that was created is one that can address these inequities. But as we see from our history, the court doesn't always get it right. And there are a number of cases where they've gotten it wrong since 1954 that have had tremendous consequences in terms of protecting individual rights.
One of the worst cases that I think has really caused tremendous problems is McCleskey versus Kemp, the 1986 case where the Supreme Court divided 5-4. And the argument was made by Warren McCleskey that he was four times more likely to get the death penalty because he was Black. Nine justices on the court accepted his argument. They said, "Statistics show that this is true." And McCleskey said, "If that's true, then that violates the equal protection clause." Four justices in dissent said, "McCleskey, you're absolutely right." Five justices said, "Well, we need more to establish intentional race discrimination than simply a 4-1 disparity. This is not enough. We need more."
When you look at that case, the most powerful language I've ever seen in a dissent, the dissenters say, "What would be so wrong with accepting McCleskey's argument that this violates the equal protection clause?" And five in the majority said, "If we accept McCleskey argument, that's an indictment of our entire criminal justice system because we're afraid that that's going to open up a can of worms because the next case is going to be a woman who says, 'Hey, it's 6-1 differential here.' Or a poor person who says, 'There's a 20-1 differential here'." So the majority said, "We can't open up this can of worms." The dissenter said, "It's really sad because it seems like the majority has a fear of too much justice, a fear of too much justice." And so when I think about cases today and I think about the evolution of our country, where we started and where we need to go, we need to have some cases that provide more justice and don't reflect a fear of too much justice.
Dr. Katie Crawford-Lacky:
And there's plenty of work to do on that front certainly. It was fascinating learning about how cases like Marbury versus Madison played such an essential role in shaping what this balance of power looked like and how it evolved over the past several centuries. You mentioned the Brown versus Board of Education case, which I think is a great example of how the Supreme Court can use its position to adapt the Constitution to address contemporary issues.
Thank you so much for joining us today, Professor Higginbotham. This was a wonderful discussion of the Supreme Court and its role past and present.
Prof. F. Michael Higginbotham:
It's my pleasure. Thank you for having me.
Dr. Katie Crawford-Lacky:
And thank you to everyone listening to this podcast. I hope you'll subscribe and share the show with your friends and family. And join us again in two weeks as we consider the Constitution.