Washington Lawyer - May 2020 - 40

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40 WASHINGTON LAWYER

MAY 2020

WORTH READING
Mississippi Supreme Court held valid the forced
confessions of three black tenant farmers for the
murder of a white planter. Local police officials
and a white mob viciously whipped two of the
black suspects and hung the other on a tree,
permanently damaging his spine. While the
disparate treatment of black suspects "seemed
so compelling" as an argument, the U.S.
Supreme Court had a weak appreciation of
equality. Instead, "Justice Hughes's opinion
stressed how these 'revolting' methods were
employed against 'three ignorant, Kemper
county Negroes,'" Tsai writes. The Court invalidated the confessions based on the due process-violating unfairness of torture-derived
confessions.
In Papachristou, Supreme Court Justice William
Douglas creatively employed fairness, judging
a Jacksonville, Florida, ordinance authorizing
police to arrest "rogues and vagabonds,"
"common gamblers, " "common drunks, " and
"habitual loafers" as too vague, and hence fundamentally unfair and contrary to due process.
Douglas concluded that Jacksonville-type laws
show that "the scales of justice are so tipped
that even-handed administration of the law is
not possible."
Tsai concedes that winning on unfairness typically
does not produce the culture change that equality
decisions do. Nonetheless, winning on fairness
grounds generally does fulfill three critical criteria
Tsai articulates for pursuing "equality by other
means": address the harms of inequality without
unreasonable delay; if the setting is not ripe for
equality, employ the next best legal argument;
and "avoid creating a tragic precedent that serves
as a significant new obstacle for grappling effectively with pervasive inequality."
Tsai's reasonableness and anticruelty discussions
are also interesting and illustrate how even
hardened judges can be stirred by the irrationality
and harshness with which states handle individuals. However, Tsai's free speech discussion of
NAACP v. Button is most illustrative for underscoring the interlinking of equality with free
speech. In this case, Virginia enacted a law that
barred legal activity with no pecuniary interest.
The problem with the regulation's prohibition, Tsai
explains, was that it "described virtually all of the
NAACP's work. Its professional staff took cases in a
concerted effort to dismantle racial segregation
whether or not a client could pay, but the organization itself had no financial stake in the cases." At
the time, the NAACP was active in litigation implementing Brown v. Board of Education and civil rights
broadly. Chief Justice Earl Warren advocated a

Tsai's free speech discussion of
NAACP v. Button is most illustrative
for under-scoring the interlinking of
equality with free speech.
violation-of-equality position, but other justices
inclined against holding the Virginia regulation as
targeting a group because of its position on racial
equality. Coming up with the winning formula,
Justice William Brennan led on a decision holding
that Virginia's policy "unduly inhibited protected
freedoms of expression and association," and that
NAACP litigation was constitutionally "privileged."
Button is a resonant example of Tsai's reasoning
framework. A Plessy effect on implementing
desegregation was at hand. Unable to forge a
consensus on equality, the Brennan free speech
approach "forged a new path using First
Amendment law that broadly appealed to others."
For Plessy, Tsai creatively offers three arguments
that might have convinced a majority of justices at
the time. The advocates for Homer Plessy, the
incarcerated black train passenger who refused to
give up his seat, urged the Court to strike down
the Louisiana restriction on the basis of the 14th
Amendment's Equal Protection Clause. Tsai posits
that the Plessy side could have been more effective by arguing that the Louisiana law "interfered
with Congress's exclusive prerogative over interstate commerce" and contravened a common law
right to travel. In addition, Louisiana's police
power/public safety justification had little factual
basis and was classically unreasonable.
While Tsai thoughtfully expounds on these arguments, it is not certain they would have prevailed,
as Tsai also depicts the Court majority's disturbingly entrenched prejudices. Nonetheless, the
backup approach did prevail in later civil rights
cases, as well as in criminal law cases involving
over-punitiveness. Tsai articulates that for the
future, too, interlinking equality with fairness, reasonableness, anticruelty, and free speech tenets is
good strategy. According to Tsai, "It's simply a
matter of doing what we are already doing more
systematically."

Richard Blaustein is a freelance science,
environmental, and legal journalist with a
background in environmental law.

https://www.osioffices.com

Washington Lawyer - May 2020

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