In the summer of 2020, I received multiple offers for my book Their Accomplices Wore Robes. Click to preorder. The book has changed a bunch since. So, writers, you can and should improve your idea after contract with the help of your editor. Nearly five years later, it received a starred review from Kirkus Reviews.

Overview

On May 8, 1866, Pennsylvania Congressman Thaddeus Stevens, a stern-faced seventy-four-year-old Radical Republican, paced toward the Capitol Building, built atop Jenkins Hill in Washington DC, shouldering the hopes of the nation’s four million black inhabitants. That day, he presented a proposal for the Fourteenth Amendment to the entire House of Representatives. He hoped it would help secure equality under the law for the freedpeople and prevent another racial caste system from calcifying into the skeleton of American society.

The Civil War had ended a year earlier, and the nation was laboring through the beginning stages of Reconstruction, the messy ordeal when the loyal states negotiated the terms under which the seceding states could rejoin the Union. Starting in the Winter of 1865, southern states enacted “Black Codes,” laws limiting the liberty of the freedpeople, requiring them to work for paltry sums and denying them various rights, like the right to testify or own a gun. The Rebels refused to submit to their former property maturing into their political and civil equal and designed these codes to engineer a post-slavery racial caste system. Stevens, the member of House of Representatives most wedded to the idea that the country must grant black people absolute membership in the national family, assumed ownership of a process he wished would help transform equality from an abstract principle for black Americans into their lived experience. 

A century-and-a-half later, we know that despite Stevens’s persistence, the racial caste system developed. It locked black folk into its lowest rung and still operates, although less effectively, to this day. How did the new system manifest? How was white America permitted to maintain it this long? And why, despite all of the supposed racial progress, does it still stand?

Their Accomplices Wore Robes will show that the judicial system, and specifically the Supreme Court of the United States, even more than the presidency or Congress, functioned as an indispensable ally in both promulgating the racial caste system and in aiding white America to preserve the benefits that they accrued from it. Best positioned to pull the nation into compliance with its purported principles and constitutional mandates, the Justices instead pushed the nation to betray the virtuous self-image it projected. As the book will demonstrate, time after time, when petitioned to make real for black Americans the nation’s founding conceit—that all men are created equal—the nine black robes instead colluded with the enemies of their complete emancipation.

***

“Our fathers,” Stevens told his colleagues under the stained-glass skylight inside the House chambers, “had been compelled to postpone the principles of their great Declaration and wait for their full establishment till a more propitious time. That time ought to be present now.”

Congress passed the Civil Rights Act of 1866, which broadly guaranteed equal rights through federal statute, but its supporters dreaded that a subsequent Congress would repeal it, leaving black folk without any federal equality guarantee. If the act became enshrined in the Constitution, though, only an onerous constitutional repeal could annul their struggle. A Stevens-lead Congressional committee recommitted to devising a constitutional amendment. The Republican Party stared into the face of failure, however, previously unable to devise a proposal that leadership could lug across the finish line—the votes of two-thirds of both houses of Congress.

With his fellow House members watching from their ornate oak desks and chairs inside the large rectangular room, Stevens said “the Constitution limits only the action of Congress and is not a limitation on the States. This amendment [fixes] that defect and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all….”

Including the clause “no state shall … deny to any person within its jurisdiction the equal protection of the laws,” this new proposal would cure the illness ailing Southern states, Stevens argued, where “different degrees of punishment are inflicted, not on account of the magnitude of the crime, but according to the color of the skin.” He prodded his colleagues to pass the proposal because “unless the Constitution should restrain them, those States will all, I fear, keep up this discrimination, and crush to death the hated freedmen.” Both houses of Congress passed it and two years later, Secretary of State William Seward “issued a proclamation certifying the ratification of the 14^th Amendment by the states.”

Before the Fourteenth Amendment, Americans turned to state laws for security of their civil rights. But after the war, Congressional Republicans knew the South would trample on the freedmen’s rights and the federal government lacked means by which to intervene. The Fourteenth Amendment addressed this conundrum. Congress could now pass laws enforcing those rights, and black folk, outfitted with the equal protection clause, could sue in federal court to prevent states from denying them. How the courts would interpret the clause, though, Stevens couldn’t predict.

***

In April 1896, Cornelius Jonas Jones penned a letter to the clerk of the Supreme Court confidentially requesting an update on the cases of John Gibson and Charley Smith, which he had argued before the Court in December. Jones conducted his affairs in his law office in Greenville, a city nestled against Mississippi’s western border, in the state’s Delta region. There, the rich dark soil provided fertile conditions for growing cotton, enticing speculators to purchase land, clear the trees blanketing the area’s flat topography and buy humans to farm it. Three decades after the war, black people still comprised a majority of the area’s residents, transitioning from chattel to sharecropper, but still an exploited population languishing at the bottom of society. In his letter, Jones addressed his “anxiety,” a fitting emotion—the trajectory of his people’s future, not just in that state, but throughout America, depended on a lawyer like him besting a state like Mississippi in a case on behalf of black clients like Gibson and Smith.

In 1889, Jones, and five other black Republicans, had won election to the lower house of the Mississippi legislature. The next year, white Democrats gathered a state convention to draft a new constitution that disenfranchised black men and codified rules to sustain the caste system. Black men made up the bulk of the state’s eligible voters. Yet, since the 1875 elections, white Democrats dominated state politics not by courting black voters, but by pumping bullets into their chests and terrifying them away from the polls. Through the convention, they planned to secure through law what they had abducted with the bayonet. As one former Confederate colonel remarked, “The old men of the present generation can’t afford to die and leave their children with shotguns in their hands, a lie in their mouths and perjury on their souls, in order to defeat the negroes. The constitution can be made so this will not be necessary.”

The delegates enacted a constitution that required a prospective voter to pay a poll tax, read a portion of the state constitution or explain a portion of the constitution when read to him in order to become a registered voter. The registrars would accept the explanation provided by illiterate white, but not by illiterate black, men. Black registration numbers, largely because of the costly poll tax, immediately crumbled. In the next election, Jones lost his seat. Every other black Republican fell too.

Jones devised a brilliant legal strategy to invalidate the new constitution. A juror had to be a registered voter. But since black people could rarely register, few were eligible to sit on juries and none ever did. Jones decided to represent black criminal defendants. After their convictions by all white juries, on appeal, he planned to convince the Supreme Court that the state discriminated in the selection of jurors in his clients’ cases. This violated the equal protection clause, he would argue, because the state intentionally inhibited black voter registration. His first two cases, John Gibson v. Mississippi and Charley Smith v. Mississippi, concerned two black men facing death sentences.

A month after Jones wrote his letter, on May 18, the Court handed down its decisions. The nine black robes held that Jones failed to prove that black men were intentionally excluded from the juries that indicted and convicted his clients. On the same day, the Court announced in Plessy v. Ferguson that segregation did not deny black people equal protection. Jones tried again in Williams v. Mississippi, supplying conclusive evidence that the delegates at the state constitutional convention set out to disfranchise black men. Again, he lost the 1898 decision.

Other southern states watched Williams from afar and rejoiced when the Court certified Mississippi’s constitution. Many reproduced this proof of concept in their own statehouses. Thus, within two years, the Supreme Court gifted the South a blueprint for re-establishing and perpetuating a racial caste system: Call a constitutional convention and create a disenfranchisement and segregationist document. With black folk prevented from participating in elections, and socially isolated from powerholders, the ruling class could manage a government that ignored black folk’s needs while oppressing them, as if being waved away by one hand and slapped by the other.

A Supreme Court more committed to racial equality would have prevented this. The Court that actually existed stole the equal protection clause away from black people, depriving them of their constitutional shield against persecution. Yet, nothing about the wording of the Fourteenth Amendment or its accompanying history obliged this outcome. Rather, the Court chose to obey white supremacy rather than commit to racial fairness. Black folk, particularly those in the South, labored under this suffocating version of the caste system until the mid-1960s.

***

On June 26, 1978, Justice Thurgood Marshall, the first black man among the nine black robes, sat in his chair before the raised mahogany bench, flanked by twenty-four towering pillars and watched a miserable twist unfold in America’s most powerful courtroom: The moment the Supreme Court signaled it would place into white hands the stolen equal protection clause. That day the Court announced its decision in Regents of the University of California v. Bakke, a case garnering national attention, one unlike any other the Court had ruled on before. Allan Bakke, a thirty-five-year-old white applicant, had twice been denied admission to the University of California Medical School at Davis. He sued, arguing that the school’s affirmative action policy advantaged minority applicants and consequently violated his equal protection rights as a white person.

The caste system had softened markedly in the years between Williams v. Mississippi and Bakke. In the signature disruption, Brown v. Board of Education, the Supreme Court overturned Plessy, holding segregation unconstitutional. President Lyndon Baines Johnson signed into law the Civil Rights Act of 1964, which made segregation and discrimination in public accommodations illegal, and the Voting Rights Act of 1965, which made illegal various disfranchisement schemes that grew from Mississippi’s efforts in 1890. Federal and state governments began implementing affirmative action programs aimed at mending the wounds the caste system had inflicted. The University of California Medical School’s affirmative action program was one such program. In Bakke, the Court struck it down, ruling it amounted to a racial quota that violated the equal protection clause.

When Congress drafted the Fourteenth Amendment, it focused on the needs of black Americans. That same Congress also enacted legislation—the Freedman’s Bureau, special funds for black soldiers, special monies for destitute black women and children, special land grants for the education of black children—to exclusively benefit the freedpeople. The Congressmen did not, therefore, conceive of the equal protection clause as forbidding the redressing of past and current racism. Imagine the Fourteenth Amendment as a healer, one that mends a society distorted by the violence of white supremacy. Thus, courts can and should distinguish a policy that repairs persecution from one that entrenches it. A black person claiming an equal protection violation doesn’t have to be treated the same as a white person.

Justice Lewis F. Powell rejected this. Beneath the courtroom’s coffered ceiling, he read aloud his plurality opinion. “The guarantee of equal protection,” Powell said, “cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.” Powell ruled that the school could not implement an affirmative action program to redress past wrongs visited upon people of color.

Justice Marshall then read his opinion. He catalogued the systemic oppression black folk had braved since the end of the Civil War to argue that their claims of an equal protection violation differed from that of white folk. “These differences in the experience of the Negro,” Marshall insisted, “make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination.”

Justice Harry Blackmun followed. “In order to get beyond racism,” Blackmun said, “we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot—we dare not—let the Equal Protection Clause perpetuate racial supremacy.” Marshall and Blackmun lost the battle. By the mid-1990s, the Supreme Court had restricted states and the federal government from administering programs to atone for past and current manifestations of racism. This explains why the perpetuation of white racial advantages endures as the equal protection clause’s most salient contribution to America now.

Yet, black folk can rarely prove equal protection violations. Observers suspect that a secretary of state closed polling places to suppress the black vote, but how can an affected black voter prove it? Observers suspect that a prosecutor filed charges against a black defendant and sought a longer sentence because of race, but how can that defendant prove it? Observers suspect a city zoning board won’t allow a company to build affordable housing in a white neighborhood to keep black folk out, but how can they prove it? Just as in Jones’s cases from 1890s, the Supreme Court still forces black folk to prove that an identifiable actor intended to racially discriminate. The old caste system operated under a rigid array of intertwined laws that drove unequal outcomes. The new caste system allows for systemic racism in the absence of discriminatory law. The goal Thaddeus Stevens pursued when he paced into the Capitol on May 8, 1866 still eludes us.

***

The Fourteenth Amendment converted the Constitution into a potential anti-caste document. But after the video-captured killing of George Floyd by Minneapolis police officers, black people and their allies seized the streets because the Supreme Court has refused to allow the amendment to fulfill that promise. Their Accomplices Wore Robes will explain how America arrived at this point, an endeavor that carries implicit directions of how society might arrive somewhere better.

When reaching for the equal protection clause in courtrooms across the country, black folk’s hands have nearly always returned empty. And those who wield power notice, maintaining racist policies and perpetuating white supremacy, knowing the judiciary will tolerate it. One cannot overstate the stakes: Unless black people apprehend the equal protection clause, truly, for the first time, equality will never replace the caste system. In Their Accomplices Wore Robes, readers will learn why the courts stole the equal protection clause, how they stole it and what price black folk paid because of that theft.

My legal background as a Harvard Law School graduate and legal scholar and teacher, and my passion for the subject inspire and qualify me write this book. I drop readers directly into scenes, allowing them to spectate up-close as I navigate them through journeys that end at the Supreme Court. Each legal controversy in Their Accomplices Wore Robes leads readers to unavoidable truths about the nation’s judicial system.

With federal courts poised to lurch rightward after Congress confirmed a seemingly endless stream of conservative President Donald Trump-appointed judges, this book becomes essential. The interpretation of the equal protection clause can worsen. The judiciary’s more conservative composition will likely embolden states to engage in even more extreme racially discriminatory behavior. Their Accomplices Wore Robes, by documenting how the judiciary has throughout history inhibited black folk from enjoying the full benefits of American citizenship, will inform readers on how unfriendly courts may respond to efforts from across the country to strip black people of hard-fought legal victories.

This book calls for a writer like me with the legal expertise, historical research skills and experience writing for mass audiences, who has studied the equal protection clause since first writing a law review article about the subject in 2009. I will be an evangelist for the title. The most successful version of the book will flourish on four levels: as a piece of literary nonfiction, as a provocative work on race, as a recounting of American history, and as a book that draws the attention of professors teaching in multiple disciplines, including law, history, and racial discrimination. Their Accomplices Wore Robes will tell the story in colorful detail, enabling readers to understand the American judiciary in all its unfortunate complexity. I plan to finish the estimated 120,000-word book twelve months after contract date.

Market Analysis and Competing Titles

Their Accomplices Wore Robes will appeal to readers drawn to American history, literary nonfiction, provocative race work and legal history. The book also promises to benefit from textbook marketplace. One cannot fully understand the America’s inability to erase the color line while ignorant about the judiciary’s theft of the equal protection clause and how that produced the caste. This book offers a complete accounting of this historical crisis. And one of the most crucial selling points for the book is that it relies on Supreme Court cases that have been infrequently told, meaning the book carries a certain freshness and inherent wonder.

Lawrence Goldstone, Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903 (Walker Books, 2011) catalogs how the Supreme Court narrowly interpreted the Thirteenth, Fourteenth and Fifteenth Amendments, a point my book agrees with. Since he focuses on all three of the post-War amendments, Goldstone writes under a broader lens. But by stopping his analysis at 1903, he misses much of the story my book recounts and the ability to demonstrate how that history reverberates in the present.

Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (Liveright, 2017) is of a similar kind to my book. Rothstein does with segregation what Their Accomplices Wore Robes does with the equal protection clause—detail how America chose to pursue a course of action that results in black misery which shatters the idea that we need to look anywhere other than the most venerable American institutions to understand how our current racial dilemmas manifested.

Ira Katznelson in his book When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth Century America (W. W. Norton 2005) details how the New Deal era policies benefitted white America and created the white middle class. In my book, I will tell the story of how the judiciary, starting in the 1970s, interpreted the equal protection clause to safeguard those racial advantages.

Michael J. Klarman, in his academic work From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford University Press 2004), chronicles how an America that endorsed the constitutionality of separate-but-equal could invalidate it sixty years. In between Plessy and Brown, Klarman examines every Supreme Court case involving race and tells the story of how the Court, at first, handed down anti-black decisions, but progressively got more friendly toward black Americans. In doing that, Klarman paints a far rosier portrait of the Court’s jurisprudence.

Richard Kluger’s Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (Knopf, 1975) shares DNA with Their Accomplices Wore Robes. In his Pulitzer Prize winning book, Kluger recounts the story of the NAACP’s successful effort to overturn Plessy v. Ferguson. Published in 1975, Simple Justice, in many ways, left behind a blueprint for my book. It traces the work of dedicated lawyers seeking to advance a legal cause as does Their Accomplices Wore Robes. My book pays more attention to advancing an underlying argument and provides a broader sweep across history. Also, because of background—Kluger is a journalist without a legal background—my book promises to offer the reader a more nuanced understanding of the Constitution, American legal culture and how the Supreme Court has hindered the cause of racial justice since the Civil War.

Michelle Alexander jolted the world in The New Jim Crow: Mass Incarceration in the Age of Colorblindness (The New Press 2010), with her aggressive argument comparing mass incarceration to segregation. Her book argues that mass incarceration functions as a new racial caste. Thus, my book finds itself as a companion work to hers in some ways. My book, however, directs the spotlight on the entire judicial system rather than just the criminal justice side. In terms of presentation, because my book is written in a scene-by-scene form, it will read less like a polemic and more like an argument unfolding through narrative storying telling.

Ibram X. Kendi’s Stamped from the Beginning: The Definitive History of Racist Ideas in America (Nation Books, 2016) chronicles the history of anti-black racist ideas in America. He argues highly intelligent whites, not ignorant backwards people, intentionally created racist ideas to structure a white-over-black racial hierarchy. My book takes those racist ideas as a given and focuses on how they inform law and guide constitutional interpretation. In that way, my book reads like the next step—Their Accomplices Wore Robes extends his argument to its logical conclusion and explores how racism manifests itself in the judicial system.

Chapter Outline

Part I: Building and Maintaining Caste

Chapter 1—An Ambivalent Beginning: During Reconstruction, the formerly enslaved acclimated to their newfound freedom under the guard of Union rifles. White supremacy revived post-slavery, pursuing the goal of instituting a new racial caste system. Congress, however, furnished its targets with a shield, the equal protection clause, to shelter them from terror.

On April 19, 1872, Taylor Strauder caved in his wife Annie’s skull with two hatchet swings in their Wheeling, West Virginia home. In March 1873, the West Virginia legislature restricted jury service to white males at least twenty-one-years-old. This jury discrimination law represented a crucial piece to the state’s program to reestablish the caste system. A month later, a white militia murdered one-hundred-and-fifty black men at the Grant Parish courthouse in Colfax, Louisiana, a bloody ordeal forewarning that white marauders would murder to deny black people the full fruits of American citizenship.

By this time, the Democratic Party had recaptured nearly half of the southern states through violence. In June 1874, as Strauder waits in his jail cell for his retrial, John Tolliver, a black man, was convicted by an all law white jury of murdering a young white girl elsewhere in West Virginia. His attorneys contended the jury discrimination statute violated the Fourteenth Amendment, but before they could argue Tolliver’s case at the state supreme court, a white mob broke into his cell in August 1874, abducted him, carried him to a locust tree and hung him. During Strauder’s trial the same month, the judge rejected the argument that the all-white jury law violated the equal protection clause. By 1877, every southern state returned to Democratic control and President Rutherford B. Hayes recalled the remaining federal troops in the South stationed there to protect the freedmen.

On appeal, the Supreme Court found that the equal protection clause secured the right to a non-discriminatorily composed jury, overturning Strauder’s conviction. Lawmakers learned the lesson—if seeking to reduce black people’s participation in civil society, they couldn’t enact legislation that explicitly discriminated.

Chapter 2—The Worst Year: In 1881, an all-white jury in Clarke County, Alabama convicted Tony Pace, a black man, and Mary Jane Cox, a white woman for the crime of “liv[ing] together in a state of adultery or fornication” and sentenced them to a two-year prison term. Alabama punished interracial cohabitation more harshly than intraracial cohabitation because the former led to a “mongrel population and a degraded civilization, the prevention of which is dictated by a sound public policy affecting the highest interests of society and government.”

In January 1883, the Supreme Court affirmed Pace’s sentence because the law “applies the same punishment to both offenders.” The promise of Strauder, that the Court defined equal protection expansively, crumpled in Pace. In Strauder, the Court only required that the law not explicitly deny black people a right given to white people. The Court applied this narrow logic in Pace and sanctioned a state enacting a law based on the assumption of black inferiority, providing initial guidelines in helping the development of the new caste system.

Months after the Pace decision, in September 1883, Ida B. Wells, journalist and anti-lynching activist, boarded a train in Tennessee and sat in a spot the railroad reserved for white passengers. White men threw her from the train when she refused to leave her seat. Two years earlier, Tennessee had passed the nation’s first Jim Crow law requiring segregated seating on railroads. Wells thought such laws violated black people’s constitutional rights. The next month, the Court decided The Civil Rights Cases, a case that would determine whether Wells spoke truth.

On March 1, 1875, Congress passed the Civil Rights Act of 1875 which required business extend equal treatment in public accommodations, public transportation and places of amusement. In the Civil Rights Cases, the Supreme Court invalidated the act, holding that the Fourteenth Amendment did not empower Congress from preventing private enterprise from racially discriminating. In these two cases, states saw permission to enact the legal framework for a new caste system and direction on how to create it. Unable to defend their equality under the law, black Americans, most of whom lived in the South, were cowed into second-class citizenship. 

Chapter 3—Despair Among the Magnolias: By 1875, white Mississippians, a political minority, had lived through a half decade of a “mongrel government,” of white carpetbaggers and freedpeople. That year white hardliners successfully pursued the “Mississippi Plan of 1875” which called killing black men and intimidating them from voting to the recapture of the state legislature. With black men expelled from the political process, Jim Crow swept through the South. One man who aspired to repel this rising tide of evil, Cornelius Jones, served as one of six black legislators in the Mississippi statehouse in 1890.

That year, Mississippi hosted a state convention to craft a new constitution that incorporated a legal framework for the caste system. Disenfranchising black men lied at the center of the plan, which, through poll taxes and literacy tests, they achieved by rendering it exceedingly difficult for black men to even register. When Jones lost reelection in 1891, he charted a path to invalidate the constitution at the Supreme Court. Jones’s plan to invalidate the 1890 constitution exuded brilliance. Only registered voters could become jurors and because the state inhibited black men from registering, they never served on juries. He plotted to represent black criminal defendants and, after their conviction, argue on appeal that the Mississippi constitution violated their equal protection rights.

Jones launched his attack with Gibson v. Mississippi and Smith v. Mississippi, featuring two black men sentenced to death by all-white juries. Providing no evidence that a state actor intentionally excluded black jurors, Jones, the Court concluded, failed to prove the state violated his clients’ equal protection rights. The same day the Supreme Court decided those cases, April 13, 1896, it upheld the constitutionality of Louisiana’s Separate Car Act in Plessy v. Ferguson. Thirty years after its birth, the equal protection clause appeared on life support.

Jones tried one last time in Williams v. Mississippi, but he lost again in the 1898 decision. The Court endorsed the constitutionality of the legal blueprint of Mississippi’s caste system. The rest of South copied the recipe. Segregated and without access to the ballot box, black folk closed the nineteenth century as an exploited caste.

Chapter 4—Separate and Unequal: In 1880, the Richmond County school board opened the Ware High School in Augusta, Georgia, the state’s only public black high school, one of perhaps four in the ex-Confederate states. The school, a crowning achievement of black agitation and source of hope about what lay ahead, trained future teachers of black children.

On September 18, 1895, before a largely white audience in Atlanta, Booker T. Washington delivered his infamous “Atlanta Compromise” speech. Washington disagreed with Augusta’s black elite who plotted the path forward for their children through schools of higher learning like Ware. Only by proving themselves, Washington contended, should black people become full participants in American democracy. Washington asserted that black folk should, at least temporarily, acquiesce to the caste system.

On July 10, 1897, the Richmond County Board of Education voted to shutter the Ware High School, explaining that the county could more wisely spend money allocated toward black pupils in elementary schools only. Black parents sued the school board and the tax collector. They wanted the courts to stop the county from collecting and spending tax money meant to fund the white high school until the board reopened Ware. The parents argued that the county violated the Fourteenth Amendment by forcing them to pay for a high school that excluded their children on account of race when black students were not afforded a Jim Crow alternative.

The Supreme Court found no equal protection violation. The school board should be free to make what it considered the best educational decisions, the Court held, and interfering in those matters would constitute inappropriate judicial meddling. In Cumming, the Court advised the South it could retreat from the equal in “separate but equal.”

Chapter 5—The Texas Two-Step: In July 1934, R.R. Grovey entered a polling place in Harris County, Houston to vote in the Democratic Party’s primary election. The unemployment rate sat at twenty-two percent and about double for black people. The suicide rate spiked, as some wrapped their lips around revolvers and others leapt from windows after their life savings vanished like a snap of the fingers. By the start of this era, black activism had wilted, having gained little traction in dismantling the caste system.

Albert Townsend, the county clerk, refused Grovey a ballot because of his race. Grovey sued for damages and sought to invalidate the state’s all-white primary as violating the Fourteenth Amendment. Like other southern states, Texas prevented black voters from participating in Democratic Party primaries. With an anemic Republican Party in the South, Democratic primary winners sauntered to easy general election victories.

The Texas Democratic Party installed a rule that only white voters could participate in the primary. Grovey sought to invalidate this rule. The Court, however, upheld it, finding that the Democratic Party, as a private organization, could discriminate on the basis of race.

The Supreme Court’s role in safeguarding the caste system enabled the other two branches of government to mushroom their zone of operation. President Franklin Roosevelt championed the New Deal, a wide-ranging set of programs aimed at stimulating a depressed economy. The finish line to passage ran through the delegation of Southern Democrats who demanded any program kowtow to white hegemony. The National Recovery Administration, for example, hired white workers for jobs first and operated a different and higher pay scale for them. The Federal Housing Authority refused to guarantee mortgages for black people who sought to purchase homes in white neighborhoods, rapidly increasing residential segregation patterns that still exist. The 1935 Social Security Act excluded coverage for agricultural and domestic workers since black Americans disproportionately occupied those positions. The federal government fully supported the caste system and the Supreme Court taught legislators how to achieve these aims.

Chapter 6—Arkansas Burning: On March 12, 1956, Georgia Senator Walter George stood underneath the newly installed stainless steel and plaster ceiling of the Senate chamber room and read the “Southern Manifesto,” a harangue in defense of white supremacy. Two years after the Court in Brown v. Board of Education declared separate but equal unconstitutional, all but two members of Congress from the Confederate states signed onto the manifesto that excoriated the Court for dismantling one of the caste’s central pillars, segregated schooling. “We pledge ourselves,” the manifesto stated, “to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation.”

On September 23, 1957, fourteen-year-old Carlotta Walls entered the Central High School in Little Rock, Arkansas, along with eight other black students. In May 1955, the Little Rock Independent School District approved a gradual integration plan for public schools, starting at the high school level. On September 2, 1957, Governor Orval Faubus ordered the Arkansas National Guard to prevent the Little Rock Nine from entering the school. But after NAACP won a federal court decision, the governor stood down.

Once Walls and the others breached the school’s threshold, a mob of a thousand angry white faces amassed outside the school. The local police department stormed inside and removed the kids, for their own safety. Two days later, President Dwight Eisenhower ordered federal troops to accompany the students into the school and eight of them finished the school year.

Before the start of the next school year, the school board petitioned to delay the integration plan, arguing that “the maintenance of a sound educational program at Central High School, with the Negro students in attendance, would be impossible” considering the “extreme public hostility….” Surprising many onlookers, the district court granted a thirty-month extension. NAACP attorneys representing the black students appealed the matter to the Supreme Court. On September 29, 1958, Chief Justice Earl Warren read his opinion in the courtroom, national reporters and the eyes of a nation watching. “State support of segregated schools through any arrangement, management, funds, or property,” Warren said, “cannot be squared with the Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws.” After nearly a century, the Court appeared to be working to undo the evils it helped create.

In the Spring of 1961, groups of interracial activists boarded buses in DC and headed to the Deep South to demonstrate that although the Supreme Court had ruled that segregated buses had violated the equal protection clause, Jim Crow still dictated the racial pecking order and the federal government failed to enforce the law of the land. In Alabama, headed by Police Commissioner Bull Connor, the local police joined with the Klan to brutalize the Freedom Riders, pummeling them with bats and bombing their buses. Other scenes throughout the 1960s demonstrated that the Supreme Court’s favorable decisions throughout the 1950s and 60s failed to meaningfully change the lived experiences of black folk. Even as the Court invalidated much of the legal underpinning that helped erect the caste system, it survived anyhow, like a house standing after losing its foundation.

Part II: Protecting The Fruits of the Caste

Chapter 7—The Ultimate Reversal: When Lyndon Baines Johnson became president in November 1963, he gained leadership of a nation evincing an increasingly exposed racial fault line. The lost promise of Brown taunted black people who by then understood the caste system remained without the legal bedrock that bore its weight. From the former slave states to northern metropolises, the boots of protestors stomped the pavements, demanding that all manner of racial trauma cease. From the bully pulpit, President Johnson pressured for the passage of the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968. He also planted seeds that bloomed into affirmative action programs designed to ameliorate past injustices inflicted upon black people.

By the 1970s, universities and graduate schools experimented with affirmative action programs to increase minority enrollment. State officials, in a drastic shift, began atoning for past wickedness, understanding that equal opportunity, absent government intervention, could not grow on fields that slavery, Jim Crow and ongoing discrimination poisoned.

In Regents of the Univ. of Cal. v. Bakke, decided in 1978, Allan Bakke sued California Davis’s medical school after being rejected two consecutive years, arguing that the school’s affirmative action policy denied him equal protection as a white man. The Court sided with him, holding that the school’s affirmative action program amounted to an unconstitutional racial quota. A plurality of the Court further argued that remediating past racism was an insufficient justification for the school’s affirmative action policy. But, a majority of the Court not agreeing on that point, stopped it from becoming the law of the land.

The equal protection clause was supposed to function as black folk’s armor against state-sponsored racial oppression. It didn’t live up to that promise. After Bakke, a troubling question lingered: Would the stolen equal protection clause be given to white folk and enable them to protect the racial advantages they gained from the caste precisely because the courts interpreted the equal protection clause out of the Constitution? 

Chapter 8—A Faint Aroma: “If there were a single message I could send to black Americans to continue the civil rights struggle,” wrote John Lewis ahead of the 1976 presidential election, “I would urge my brothers and sisters to regard Tuesday November 2 as a ‘day of liberation’ and vote as if our lives and future depend on it. They do.” Lewis, at the time the executive director of the Voter Education Project, had organized black voters for Jimmy Carter, a Democratic Governor from the Deep South, the profile of unlikely recipient of black support. A decade before, Alabama State troopers fractured Lewis’s skull on the Edmund Pettus Bridge during a march for voting rights. After Carter’s victory, Lewis heralded the black vote as deciding the election: “92 percent [of the black vote] going for Jimmy Carter was both the largest black vote in history and influential single exercise of minority political power in this century.” The white racial advantages the caste system produced remained. Black people craved policies to atone for past sins. And their votes put a man into the White House.

The first federal “affirmative action” programs did not specifically favor racial minorities over white competitors. Rather, these policies simply pushed federal agencies to actively attempt to increase minority representation. These sorts of programs, however, failed to meaningfully improve outcomes for people of color. In 1977, Congress enacted the Public Works Employment Act, which required that ten percent of the four billion dollars of federal monies allocated under the program be given to businesses owned by citizens who were “Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts.”

Six months later, H. Earl Fullilove, a white contractor, as well as other white business owners, sued, claiming that the set-aside violated their equal protection rights. In Fullilove v. Klutznick, decided in July 1980, the Supreme Court upheld the set-aside and the rationale for it: to benefit people of color harmed by past and current instances of discrimination. Observers saw reason for hope.

On November 4, 1980, Ronald Reagan walked onto a stage at the Century Plaza Hotel in Los Angeles to address his raucous flock. “Earlier this evening, I spoke on the phone with President Carter,” Reagan said. “And the President pledged the utmost in cooperation in the transition that will take place in these coming months.” A new man would occupy the White House.

Chapter 9—But They Just Let Us In: In the December 26, 1966 edition of the U.S. News and World Report, an article entitled “Success Story of One Minority Group in U.S.” appeared. “At a time when Americans are awash in worry over the plight of racial minorities,” the article insisted, “one such minority, the nation’s 300,000 Chinese-Americans, is winning wealth and respect by dint of its own hard work.” The implication was clear: Maybe America should hold black folk responsible for their woes since another racial minority seized excellence amid putative debilitating circumstances.

On August 3, 1980 at Mississippi’s Neshoba County Fair, Ronald Reagan delivered one of his first speeches after receiving the Republican Party’s presidential nomination. In this county in 1964, three civil rights workers were shot and discarded into a ditch, a murder plot arranged by a cabal of Klan members and local law enforcement. “I believe in state’s rights,” Reagan told a crowd that heard, a dog-whistle promise to return to an era when the federal government supported the caste system. Reagan winning the 1980 election, ushered in an age that secured racist ends through code and blamed black people for their predicament.

In 1953, the public-school system in Jackson, Michigan hired its first black teacher. By 1961, only ten of the five-hundred-and-fifteen teachers were persons of color. Amid local tumult in 1972, the school board and the teacher’s union agreed to a provision of the collective bargaining that governed layoffs. “In the event that it becomes necessary to reduce the number of teachers through layoff from employment by the Board,” the provision provided, “teachers with the most seniority in the district shall be retained, except that at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff.” The school board had recently recruited an influx of minority teachers, but with a last-hired first-fired policy, those gains would evaporate should cost concerns compel the firing of teachers.

On April 7, 1981, white teachers were laid off although they had more seniority than black teachers who were kept. The white teachers sued, contending that the Jackson Board of Education fired them on the basis of race, in violation of the equal protection clause. The Supreme Court sided with them. White teachers held a disproportionate percentage of the most senior spots precisely because the board violated the equal protection clause when not hiring black teachers. When the city decided to ameliorate its long history of racial discrimination, the Court used the equal protection clause to help entrench white racial advantages allowed to fester for decades.

Chapter 10—Mississippi Redux in Georgia: On October 12, 1978, Warren McCleskey, a black man, stood in a Cobb County, Georgia courtroom as the jury foreperson pronounced him guilty of the murder of Frank Schlatt, a white police officer, during the robbery of a furniture store. The jury sentenced him to die in the state’s electric chair. In the 1970s, crime increased, leading to racism-fueled “tough on crime” talk from politicians, overly punitive sentencing and the mass incarceration of black men. Absent laws on the books that required the criminal justice system to punish black men more harshly, it nonetheless happened. The system produced racist results without the law requiring it.

On appeal, McCleskey argued that the Georgia capital sentencing process operated in a discriminatory manner. He claimed that murderers with white victims were more likely to be sentenced to death than those with black victims and that black killers were more likely to receive the death penalty than their white counterparts. Thus, because he was black and his victim was white, McCleskey claimed that he was far more likely to be sentenced to death, a fact which denied him equal protection. McCleskey had a statistical study penned by law professor David Baldus and other social scientists, which detailed the racial disparities in Georgia’s penal system and directly supported McCleskey’s claim.

Despite the statistical study, the Court concluded that such disparities were a natural part of the criminal justice system. To prove his claim, McCleskey had to provide evidence that the prosecutor who charged him or the jurors his convicted him treated him differently because of his race. Such discrimination claims, therefore, can never be proven.

Chapter 11—Death of a Hope: White flight into the suburbs left behind cities with black voters holding political majorities that elected representatives who sought to use city governments to address various problems, including the intractable black/white wealth gap. In the early-1980s, black residents of Richmond, Virginia, the former capital of the Confederacy, constituted half of the city’s population and black representatives held five of the nine Richmond City Council seats.

On April 11, 1983, the city council instituted a plan that required contractors who received city construction contracts to subcontract at least thirty percent of the contract to one or more minority-owned businesses. Later that year, J.A. Croson company submitted a bid to install plumbing in the city jail and was awarded the contract. But after the company was unable to subcontract the work to a minority-owned business, the city decided to rebid the contract. Shortly thereafter, the company sued, arguing that the minority set-aside program violated the equal protection clause.

For the first time, a majority of the court endorsed the notion that atoning for past racial discrimination wasn’t a compelling enough reason to justify an affirmative action program. In the 1989 decision, writing for the majority, Justice Sandra Day O’Connor argued, “To accept Richmond's claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief’ for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.”

A decade later the Supreme Court extended that holding to the federal government. Thus, within two decades, the Supreme Court reached the destination the Justices appeared destined to arrive at in Bakke. America cannot correct the lasting effects of the caste system through race-conscious remedies because of the constitutional amendment meant to prevent antiblack racism. The black robes completed the gift of equal protection clause to white America by the mid-90s. They’ve retained it ever since. 

Epilogue: In 2013, the Supreme Court invalidated fifth section of the Voting Rights Act, which barred certain districts, concentrated in the South, from changing election laws and procedures without authorization. A majority of the Justices on the Court concluded that racial progress had rendered this portion of the Act unnecessary. Immediately, these locales began closing polling places and enacting voter identification laws to discriminate against black folk. The caste system still exists, and their accomplices still wear robes.