Republican-appointed judges attempt to lay claim to moral legitimacy by invoking MLK.

A few years ago, I was tasked with researching employment court cases for Congress' Military Leadership Diversity Commission to help come up with suggestions for ways the armed forces could ensure its career paths were truly open to all people.

One case, Christian v. United States (2000), caught my eye in the course of my research. The case involved a claim brought by two white Army officers who had twice been passed over for promotion to colonel and therefore were automatically retired. They alleged that Army policies advantaged minorities to the disadvantage of white officers.  

From the very first line of Christian, I did a double-take: "This case, and the constitutional claim raised in this case, is not about race."

It's a reverse discrimination claim—it's entirely about race!

But then the second sentence says this:

However, it involves deeply held concerns about creating a society free of the scourge of racial injustice that has, during much of our history, diminished the quality of life for African-Americans as well as other racial, ethnic, or religious minorities.

So it is about race….

According to the judge, the question was whether the Army's policy "upholds the promise of justice for individuals of all races… forever enshrined in the law of the land by the tears and triumphs of the great civil rights struggles of the past century and a half." Grabbing this torch, the judge asks how it should "determine whether the program at issue is fundamentally just and consistent with our Constitution?" To help him answer the question, he turned to Dr. Martin Luther King Jr.

Here is the quote he used, from King's "Letter from a Birmingham Jail":

An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts the human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority, . . . and ends up relegating persons to the status of things.

Three paragraphs into the decision, it was obvious: the judge was going to strike down the Army's policy and rule in favor of the white plaintiffs. He was going to do it by staking a moral claim on the legacy of Martin Luther King and the civil rights movement.  

As if to drive the stake further into King's heart, he continued: "Dr. King himself repeatedly observed that the moral cause of racial justice cannot be fought by immoral means, and that freedoms of whites and blacks are 'inextricably bound' to one another."

This guy has got to be a Republican, I thought. I looked him up, and sure enough, Loren A. Smith worked in the Reagan administration until the Gipper appointed him to the bench in 1985.

Smith's ludicrous invocation of King made me wonder if other Republican appointees to the federal courts also turned to King to sugarcoat their decisions ruling in favor of whites against minorities. Do Republican invocations always bury King's true goals and legacy? Do Democratic appointees invoke King differently? Could I predict a judge's party by how he or she invoked King?  

With these questions lingering in my mind, I hit Lexis Nexis and Google Scholar. I found a good number of cases over a span of recent decades in which the presiding judge invoked King to explain his or her reasoning or to lay claim to moral legitimacy.[1]

Republicans, King, and Voting Rights

Let's start with the voting rights cases. In Vera v. Richards (1994), a panel of three Republican judges considered a Texas redistricting law that created three minority-majority congressional districts. Judge Edith Jones, a Reagan appointee whom both presidents Bush considered elevating to the Supreme Court, opened the decision by stating that the Voting Rights Act of 1965:

"marked the full maturity in American political life of the Founders' idea that "all men are created equal" and the Rev. Martin Luther King's hope that his children would be judged by the content of their character, not the color of their skin."

Ah, yes, the famous "content of their character" line. A little later in her introduction, she continues in the same vein:

Racial gerrymandering is unconstitutional, but it is also morally wrong, inconsistent with our founding tradition and Martin Luther King's vision. The color of a person's skin or his or her ethnic identity is the least meaningful way in which to understand that person.  

I can think of less meaningful ways to understand a person. (Do you like hot dogs?) You can guess which way they ruled.

In Houston v. Haley (1989), a case challenging a plan to introduce an at-large district for the governing board of Oxford, MS, Nixon-appointee Judge Thomas G. Gee wrote that:

Deliberately to define a political position by the irrelevant criterion of race, and with the avowed intent of producing an officeholder who is black, seems a most dubious undertaking. For one thing, it stands Dr. King's dream--given voice in his August 1963 speech at the Civil Rights March on Washington--on its head: "I have a dream that my . . . children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character."

There it is again.[2]

In Clark v. Marengo County, AL, Commission (1986), Nixon-appointee Judge William Brevard Hand laments that the Court of Appeals is forcing him to do adopt districts (advantage: minority) rather than an at-large approach for the county (advantage: whites). His reasoning as to why this is a travesty is that "it denies the dream Martin Luther King expressed when he opined that he longed for the day that you can look at the nation and not see black or white."[3]

Why do so many Republicans think Dr. King advocated colorblindness? Republicans "have created a mythical Martin Luther King Jr., constructed solely from one line in his "I Have a Dream' speech." Perhaps if King had only spoken words like "I'm black and I'm beautiful" or "the fierce urgency of now" or only voiced his support for affirmative action (all of which he also did), Republicans would have had to find someone else to quote as part of their delusion that black equals black (and Democratic) but white equals a fair "mixing pot" for everyone.

Democrats, King and Voting Rights

So do Democratic appointees do any better? Oh, yeah.

In a 1992 case brought by California's congressional Democrats to challenge the state's redistricting plan, Judge Thomas Tang of the U.S. Court of Appeals for the Ninth Circuit—a Carter appointee—wrote:

In 1957, Reverend Martin Luther King, Jr. awakened the conscience of this country to the heart-felt desire of African Americans and other minorities to participate in the American electoral process on an equal footing:

"The denial of this sacred right [to vote] is a tragic betrayal of the highest mandates of our democratic traditions and it is democracy turned upside down. So long as I do not firmly and irrevocably possess the right to vote I do not possess myself. I cannot make up my mind—it is made up for me. I cannot live as a democratic citizen, observing the laws I have helped to enact—I can only submit to the edict of others."

That sounds a lot more like an honest invocation of Dr. King.  

Or take Shelby County, Alabama v. Holder (2013), a recent Supreme Court case in which white interests were challenging the prescreening requirement of the Voting Rights Act of 1965. Justice Ruth Bader Ginsburg wrote:

Alabama is home to Selma, site of the "Bloody Sunday" beatings of civil-rights demonstrators that served as the catalyst for the VRA's enactment.  Following those events, Martin Luther King, Jr., led a march from Selma to Montgomery, Alabama's capital, where he called for passage of the VRA.  If the Act passed, he foresaw, progress could be made even in Alabama, but there had to be a steadfast national commitment to see the task through to completion. In King's words, "the arc of the moral universe is long, but it bends toward justice." History has proved King right. Although circumstances in Alabama have changed, serious concerns remain.

Judges appointed by Democratic presidents apparently have a better grasp of King's legacy than do Republicans. If nothing else, they have a broader repertoire of King quotes: none of these come from the "I Have a Dream" speech or "Letter from a Birmingham Jail."

But then again, these were the only two voting rights cases I found in which Democrats mentioned King. Notably, they weren't the court's opinions; they were in dissents. In both of these cases, Republican appointees outnumbered the Democrats by one, and the Republicans voted in a way that would advance the interests of white (and Republican) voters over minority (and Democratic) voters. They invoked King to point out the moral wrongness—and willful blindness—of the Republican judges' decisions.

Hot-Button Cases

It made me wonder: If the Dems had outnumbered the Republicans in those cases, would they have still invoked Dr. King? My hunch is that they wouldn't have. Federal judges, especially trial court judges, constantly fret that their decisions will get reversed by the Court of Appeals. The target audience of their decisions isn't just the parties in the case, but also looming appellate judges.

They might be aware of prior instances where Republican judges on the Court of Appeals slammed decisions invoking King, like US v. Clary (1994), in which a Carter appointee, Clyde Cahill, ruled that the U.S. Sentencing Guidelines' famously racist disparity between crack and cocaine was unconstitutional, basing his opinion in part on an explanation of unconscious racism in which he mentioned King's assassination and the civil rights struggle. Federal judges with life tenure may be insulated from a lot of politics, but they aren't insulated from all of it.

Do Democrats mention Dr. King in affirmative action cases? I found just two related instances. In Cleveland Fire Fighters for Fair Hiring Practices v. Cleveland (2009), Judge Donald Nugent quoted a previous, unpublished decision involving the Cleveland police department that name-dropped King. "Champions of freedom and equality, the Reverend Martin Luther King and Senator Robert Kennedy, were assassinated to silence their voices." But these were both cases that involved established consent decrees to remedy proven racial discrimination in those departments' hiring practices, which is the one area of affirmative action that enjoys a sort of safe haven in the courts.

Guess who else name-dropped Dr. King in an affirmative action case: Clarence Thomas! Did he, one of the biggest beneficiaries of the GOP's own version of affirmative action, invoke King to support arguments for diversity? Of course not.[4]

I didn't find many other hot-button topics in which Democrats invoked King. They don't mention him very often in the political minefield of employment discrimination cases, though I did find one light reference—that the "I Have a Dream" speech was one of three "momentous events" that eventually got the Civil Rights Act of 1964 passed—in a case ruling that a private employer violated Title VII of that act by failing to include prescription female contraceptives as part of its healthcare plan (Erickson v. Bartell Drug Co., 2001).

Similarly, in school districting cases, I only found two decisions in which a Democratic appointee invoked King. One was a lament that the Court of Appeals was making it hard to implement a plan to desegregate the Little Rock School District. In the other, the judge pointedly used every Republican's favorite King quote to uphold a Massachusetts school district's plan to prevent white flight: "In order to teach that the 'content of [one's] character' does not depend on color, a child must interact with children of other races, an interaction that necessarily challenges nascent stereotypes."[5]

Where It Gets Just Plain Weird

Dr. King was a preacher, right? So who better to invoke when a Republican wants to chip away at the separation of church and state?  After Republican appointee W. Eugene Davis of the U.S. Court of Appeals for the Fifth Circuit (for whom I clerked) affirmed a district court opinion that found a Mississippi school prayer law unconstitutional, and when rehearing en banc was denied, the previously mentioned Judge Edith Jones ran to Dr. King in her loud dissenting opinion.

Decisions fostering rigidly secular public education strip school officials of moral tools that lie at the heart of the educational process. As the Rev. Martin Luther King explained:

"The function of education, therefore, is to teach one to think intensively and to think critically. But education which stops with efficiency may prove the greatest menace to society. The most dangerous criminal may be the man gifted with reason but with no morals."

We must remember that intelligence is not enough.  Intelligence plus character -- that is the goal of true education. (Ingebretsen v. Jackson Public School Dist., 1996)

The logic here is somewhat amusing, if lamentably common among members of the religious right. In order to teach character, schools need to teach morality, and where does morality come from? Religion! Therefore, you have to have religion in schools.  

Shortly thereafter Judge Jones wrote, "Paraphrasing George Orwell, we have sunk to the point at which it becomes one's duty to restate the obvious." Well, to state what should have been obvious: Dr. King never mentioned religion in the paper she quoted, an op-ed King wrote as an undergraduate in his college newspaper. (Though the op-ed did say this: "If we are not careful, our colleges will produce a group of close-minded, unscientific, illogical propagandists….")

What did King actually think about school prayer? When asked about a Supreme Court decision striking down a school prayer law, Dr. King said, "I endorse it. I think it was correct.… In a pluralistic society such as ours, who is to determine what prayer shall be spoken, and by whom? Legally, constitutionally or otherwise, the state certainly has no such right."

It looks like Republican judges and their clerks haven't done their homework, because they turn to King again and again in order to promote religion in schools and the public sphere. Want to allow a Bible Club or clergy as counselors in public school? Want to protect churches from having to disclose who is making donations? Just namedrop Martin Luther King.[6]

Democratic Surprises

I figured that on matters of religion, Democratic appointees would get Dr. King right, and they did: keeping religion out of public schools and making Islam more available in prisons.[7]  But I was surprised to see precious few references to him in police misconduct cases.[8] In one case, they spoke satisfyingly broadly:

The facts of this case give us cause to pause and ponder the slow systematic erosion of Fourth Amendment protections for a certain demographic. In the words of Dr. Martin Luther King, Jr., we are reminded that "we are tied together in a single garment of destiny, caught in an inescapable network of mutuality," that our individual freedom is inextricably bound to the freedom of others. Thus, in the case, we must ensure that the Fourth Amendment rights of all individuals are protected. (U.S. v. Nathaniel Black, 2013)

This was an unusually bold invocation of the real Martin Luther King. Which triggers my skepticism: Was the panel comfortable saying this because all three were Democrats, they were on the Court of Appeals, they probably weren't worried that this would be one of the few cases accepted by the Supreme Court each year, and the facts of the case—a stop-and-frisk that led to conviction for felon in possession of a gun—were draconian and ridiculous?

I was surprised in a different way in two other cases where Democratic appointees effectively questioned whether modern activists are legit when compared to Dr. King and "classical phase" civil rights activists. In Menotti et al. v. Seattle (2005), the judges preferred the quiet crowd at the Lincoln Monument to the Seattle protesters, apparently lumping the nonviolent folks together with the black bloc. And in Garcia et al. v. Bloomberg (2012), Judge Jed Rakoff wrote about Occupy Wall Street like this:

What a huge debt this nation owes to its "troublemakers." From Thomas Paine to Martin Luther King, Jr., they have forced us to focus on problems we would prefer to downplay or ignore. Yet it is often only with hindsight that we can distinguish those troublemakers who brought us to our senses from those who were simply... troublemakers.

To me, these decisions were a reminder that, Democrat or not, federal judges are part of the government. They are beholden to implement the law as they interpret it, so long as it isn't unconstitutional—and they aren't overly deterred by the standard judicial practice of bending over backward to avoid ruling on constitutionality. Then again, Judge Rakoff is a trial judge, and he's got an appellate court to contend with.

Republican Surprises

Here's what really blew me away. Aside from the Christian case that inspired this project, I discovered that every time a judge—Democrat or Republican—invoked Dr. King's legacy in an employment case, they did so in favor of the minority interest.  

Check out how this panel of Republicans appellate judges opened their decision:

Forty-five years ago, "the civil rights movement swirled into Birmingham, a city whose bitter resistance to change made it a battleground."  Dr. Martin Luther King Jr. remarked, "If we can crack Birmingham, I am convinced we can crack the South. Birmingham is a symbol of segregation for the entire South."  By blood, toil, and tears, segregation was, of course, cracked in Birmingham, [but] … despite considerable racial progress, racism persists as an evil to be remedied in our Nation.  (Goldsmith v. Bagby Elevator Co., 2008)

The more I think about it, perhaps it's somewhat less surprising. You see, this case involved a retaliation claim brought by an African American who worked in a ridiculously racist environment and then got fired when he complained to the EEOC and his employer tried to force him to sign away his legal rights. As I've writtenpreviously, most Republicans are hostile to overt racism, and it was overt here. Republicans don't like to create "new" rights, and here the plaintiff's existing legal rights were being denied. The unfairness was manifest. The facts of the case allowed the judges to avoid addressing the plaintiff's alternative claim that he was fired because he was black: the judges could do the right thing without stepping into broader racial waters. It was a safe case.

I've thrown enough cases at you by now, so I'll close with this one. In Zappa v. Cruz (1998), a Reagan appointee name-dropped Dr. King to support the plaintiffs: "our nation's conscience has evolved, and, based largely on the efforts and courage of people like Abraham Lincoln, Martin Luther King, and Thurgood Marshall, the law no longer tolerates state-sanctioned discrimination based on racial or ethnic classifications."

That surprised me until I realized that the minority his ruling favored was white and English-speaking. The case involved Puerto Rico's Realtors licensing exam, which had stopped administering the test in English, and the plaintiffs didn't want to take it in Spanish.  

Hmm, a Republican judge protecting a white, English-speaking, colonial minority interest? As people of color become the majority in more and more American jurisdictions, I can't help wondering if a decision like this presages how Republican judges will invoke Dr. King in the future. There are bound to be, for instance, more and more redistricting efforts by Republican state legislatures, desperate to hold onto what will become increasingly tenuous majorities, that will end up in court.  

Will President Obama and the Senate be able to fill the 93 current and 20 looming judicial vacancies with judges who have a clue about the actual Martin Luther King? Or will we end up with more Republican judges and their cartoon caricature of the great man? Whatever happens, on this MLK Day and every other day, whenever a court invokes Dr. King, make sure to judge it by the content of their characterization.

1. This number does not include the many civil disobedience cases and Vietnam War conscientious objector cases I found. In those, defendants would cite Dr. King's "Letter from a Birmingham Jail" for justification, and the judges, Republican and Democrat, would quote the letter right back at them: “One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the consequences.” Then they'd pack them off to prison. Because the outcome was always inevitable and there was no difference between Republican and Democratic judicial behavior, I laid these cases to the side.

2. Gee followed up with this gem: "[w]hen such a selection is based on the irrelevant ground of skin color, there is danger that the views which the selectee brings to a position of power may be as eccentric as the gerrymandered shape of the district which was tailored to secure his election."

3. Judge Hand, a lover of school prayer who once ordered that textbooks "promoting" secular humanism be removed from classrooms, continued in the tone of a deluded white paternalist. He worried that the county voting district plan "indelibly brands any such minority as an identifiable minority and impedes its assimilation into the fabric of American society," and would require minorities "to remain in their 'Soweto's,' otherwise referred to as ghettoes" if they wanted to elect minority candidates. "This is contrary to the American ethic which presumes and encourages all people to believe they are equal before the law." I'm pretty sure that Dr. King wanted all people to actually be equal before the law.

4. It is irrelevant under the 14th Amendment whether segregated or mixed schools produce better leaders. No court today would accept the suggestion that segregation is permissible because historically black colleges produced Booker T. Washington, Thurgood Marshall, Martin Luther King, Jr., and other prominent leaders. Likewise, the university’s racial discrimination cannot be justified on the ground that it will produce better leaders. (Fisher v. University of Texas, 2013)

Thomas' logic here is based on the conservative belief that "diversity" is just a disingenuous codeword for affirmative action, and that any actual content that the concept of diversity might have is just a distraction from the lie.

5. Little Rock School District v. Special School District (1990), Comfort v. Lynn (Ma.) School Committee (2003).

6. Pope by Pope v. East Brunswick Bd. of Educ. (1993), Doe ex rel. Doe v. Beaumont Ind. Sch. Dist. (1999); Canyon Ferry Baptist Church, East Helena v. Unsworth (2009).

7. Schultz v. Medina Valley Independent School District (2012), Knuckles v. Prasse (1969).

8. In one of these cases, Bergman v. U.S. (1988), King himself had spoken about the subject of the case, a Southern mob beating up Freedom Riders; beatings the plaintiffs alleged the FBI could have stopped but didn't. The panel quoted King and ruled for the plaintiffs:

Among the many sobering lessons that we can learn from the events of the past week is that the Deep South will not impose limits upon itself. The limits must be imposed from without. Unless the federal government acts forthrightly in the South to assure every citizen his constitutional rights, we will be plunged into a dark abyss of chaos.

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