Justice Deferred: Race and the Supreme Court—A Panel Discussion

Endorsed by the OAH Committee on the Status of ALANA Historians and ALANA Histories, SHFG, and SHGAPE

Saturday, April 1, 2023, 8:45 AM - 10:15 AM

Type: Panel Discussion

Tags: African American; Legal and Constitutional; South


Did the Constitution form a more perfect union, as founders hoped, or was it an agreement with Hell as William Lloyd Garrison shouted? Did it change with the Civil War Amendments? Historian Vernon Burton and lawyer Armand Derfner, Justice Deferred: Race and the Supreme Court, discuss the Supreme Court’s creation of race as a legal concept from the 17th century until today. They analyze how the Court has treated Black, Native, Latinx, and Asian people, as well as changing immigration patterns, from enslavement to destruction of the Voting Rights Act in 2013 and 2021, through the lens of criminal justice, affirmative action, and more.

Session Participants

Chair: Mary Frances Berry, University of Pennsylvania
Mary Frances Berry became the Geraldine R. Segal Professor of American Social Thought and Professor of History in 1987. She received her Ph.D. in History from the University of Michigan and JD from the University of Michigan Law School. She is the author of twelve books including Five Dollars and a Pork Chop Sandwich: Vote Buying and the Corruption of Democracy (2016); We Are Who We Say We Are: A Black Family's Search for Home Across the Atlantic World (2014); Power in Words: The Stories behind Barack Obama's Speeches, from the State House to the White House with Josh Gottheimer (2010), And Justice For All: The United States Commission On Civil Rights And the Struggle For Freedom in America (2009); My Face is Black Is True: Callie House and the Struggle for Ex-Slave Reparations (2005); The Pig Farmer's Daugher and Other Tales of American Justice: Episodes of Racism and Sexism in the Courts from 1865 to the Present (1999); Black Resistance, White Law: A History of Constitutional Racism in America (1994, orig. 1971); The Politics of Parenthood: Child Care, Women's Rights, and the Myth of the Good Mother(1993); Why ERA Failed: Politics, Women's Rights, and the Amending Process of the Constitution (1986); Long Memory: The Black Experience in America, with John Blassingame (1982); and Military Necessity and Civil Rights Policy: Black Citizenship and the Constitution, 1861-1868 (1977).
Professor Berry has had a distinguished career in public service. From 1980 to 2004, she was a member of the U.S. Commission on Civil Rights, and from 1993-2004 served as Chair. Between 1977 and 1980, Dr. Berry served as the Assistant Secretary for Education in the U.S. Department of Health, Education, and Welfare (HEW). She has also served as Provost of the University of Maryland and Chancellor of the University of Colorado at Boulder.
In recognition of her scholarship and public service, Professor Berry has received 35 honorary doctoral degrees and many awards, including the NAACP's Roy Wilkins Award, the Rosa Parks Award of the Southern Christian Leadership Conference, and the Ebony Magazine Black Achievement Award. She is one of 75 women featured in I Dream A World: Portraits of Black Women Who Changed America. Sienna College Research Institute and the Women's Hall of Fame designated her one of "America's Women of the Century." In 1990-91 she was President of the Organization of American Historians. She is a Fellow of the Society of American Historians and of the National Academy of Public Administration and is a Distinguished Fellow of the American Society for Legal History. She is a recipient of the Roy Rosenzweig Distinguished Service Award of the Organization of American Historians.

Panelist: Orville Vernon Burton, Clemson University
Orville Vernon Burton is the inaugural Judge Matthew J. Perry Distinguished Chair of History and Professor of Pan-African Studies, Sociology and Anthropology, and Computer Science at Clemson University, and the Director of the Clemson CyberInstitute. From 2013-2015 he was Creativity Professor of Humanities; in 2016 Burton received the College of Architecture, Art, and Humanities (CAAH) Dean’s Award for “Excellence in Research” and in 2019 the College’s award for “Outstanding Achievement in Service.” In 2018, he received the initial University Research, Scholarship and Artistic Achievement Award. From 2008-2010, he was the Burroughs Distinguished Professor of Southern History and Culture at Coastal Carolina University. He was the founding Director of the Institute for Computing in Humanities, Arts, and Social Science (I CHASS) at the University of Illinois, where he is emeritus University Distinguished Teacher/Scholar, and Professor of History, African American Studies, and Sociology. At the University of Illinois, he continues to chair the I-CHASS advisory board and is also a Senior Research Scientist at the National Center for Supercomputing Applications (NCSA) where he served as Associate Director for Humanities and Social Sciences from 2002-2010. He serves as Executive Director of the College of Charleston’s Low Country and Atlantic World Program (CLAW). Burton served as interim chair, and then vice-chair of the Board of Directors of the Congressional National Abraham Lincoln Bicentennial Foundation, 2009-2017. In 2007 the Illinois State legislature honored him with a special resolution for his contributions as a scholar, teacher, and citizen of Illinois. A recognized expert on race relations and the American South, and a leader in Digital Humanities, Burton is often invited to present lectures, conduct workshops, and consult with colleges, universities, and granting agencies.
Burton is a prolific author and scholar (twenty authored or edited books and more than two hundred articles); and author or director of numerous digital humanities projects. The Age of Lincoln (2007) won the Chicago Tribune Heartland Literary Award for Nonfiction and was selected for Book of the Month Club, History Book Club, and Military Book Club. One reviewer proclaimed, “If the Civil War era was America's ‘Iliad,’ then historian Orville Vernon Burton is our latest Homer.” The book was featured at sessions of the annual meetings of the Association for the Study of African American Life and History (ASALH) and the Social Science History Association (SSHA), the Southern Intellectual History Circle, and the latter was the basis for a forum published in The Journal of the Historical Society. His most recent book, Justice Deferred: Race and the Supreme Court, co-authored with Armand Derfner (Belknap Press of Harvard University, 2021) was featured at a session of the 2021 SSHA and scheduled for the April annual meeting of the Midwestern Political Science Association (MPSA). In My Father’s House Are Many Mansions: Family and Community in Edgefield, South Carolina (1985) was featured at sessions of the Southern Historical Association and the SSHA annual meetings. Justice Deferred, The Age of Lincoln, and In My Fathers’ House were nominated for Pulitzers.
Recognized for his teaching, Burton was selected nationwide as the 1999 U.S. Research and Doctoral University Professor of the Year (presented by the Carnegie Foundation for the Advancement of Teaching and by the Council for Advancement and Support of Education). In 2004 he received the American Historical Association’s Eugene Asher Distinguished Teaching Prize. At the University of Illinois, he won teaching awards at the department, school, college, and campus levels. He was the recipient of the 2001-2002 Graduate College Outstanding Mentor Award and received the 2006 Campus Award for Excellence in Public Engagement. He was appointed an Organization of American Historians Distinguished Lecturer for 2004-20.
Burton's research and teaching interests are American history, with a particular focus on the American South, including race relations and community, and the intersection of humanities and social science. He has served as president of the Southern Historical Association and of the Agricultural History Society. He was elected to honorary life membership in BrANCH (British American Nineteenth-Century Historians).\
Among his honors are fellowships and grants from the Rockefeller Foundation, the National Endowment for the Humanities, the Pew Foundation, the National Science Foundation, the American Council of Learned Societies, the Woodrow Wilson International Center for Scholars, the National Humanities Center, the U.S. Department of Education, National Park Service, and the Carnegie Foundation. He was a Pew National Fellow Carnegie Scholar for 2000-2001. He was elected to the Society of American Historians and was one of ten historians selected to contribute to the Presidential Inaugural Portfolio (January 21, 2013) by the Joint Congressional Committee on Inaugural Ceremonies. Burton was elected into the S.C. Academy of Authors in 2015 and in 2017 received the Governor’s Award for Lifetime Achievement in the Humanities from the South Carolina Humanities Council, and in 2021 was awarded the Benjamin E. Mays Legacy Award.

Panelist: Gabriel J. Chin, UC Davis Law
Gabriel "Jack" Chin is a teacher and scholar of Immigration Law, Criminal Procedure, and Race and Law. His scholarship has appeared in the Penn, UCLA, Cornell, and Harvard Civil Rights-Civil Liberties law reviews and the Yale, Duke and Georgetown law journals among others.  The U.S. Supreme Court cited his work on collateral consequences of criminal conviction in Chaidez v. United States, 133 S. Ct. 1103, 1109 (2013), in which the Court called his Cornell Law Review article “the principal scholarly article on the subject” and in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), which agreed with his contention that the Sixth Amendment required defense counsel to advise clients about potential deportation consequences of guilty pleas.  Justice Sotomayor cited his Penn Law Review article in her dissent in Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016).
He teaches Criminal Law, Criminal Procedure, and Immigration, and is Director of Clinical Legal Education.  He also works with students on professional projects. His efforts with students to repeal Jim Crow laws still on the books includes a successful 2003 petition to the Ohio legislature to ratify the Fourteenth Amendment, 136 years after the state disapproved it during the ratification process. He and his students also achieved the repeal of anti-Asian alien land laws which were on the books in Kansas, New Mexico and Wyoming. For this work, "A" Magazine named him one of the “25 Most Notable Asians in America.” In connection with classes with a practical component, he has tried felony cases and argued criminal appeals with his students.
Professor Chin earned a B.A. at Wesleyan, a J.D. from Michigan and an LL.M. from Yale. He clerked for U.S. District Judge Richard P. Matsch in Denver and practiced with Skadden, Arps, Slate, Meagher & Flom and The Legal Aid Society of New York. He taught at the Arizona, Cincinnati, NYU and Western New England law schools before joining the UC Davis faculty. His professional activities include service as Reporter on the Uniform Collateral Consequences of Conviction Act, approved in 2009 by the Uniform Law Commission, and for the ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons (3d ed. 2003).  Chin is a founding board member of the Collateral Consequences Resource Center and a member of the American Law Institute.

Panelist: Armand Derfner, College of Charleston Law School
Armand Derfner is co-author, with Orville Vernon Burton, of Justice Deferred: Race and the Supreme Court (Belknap Press of the Harvard University Press, 2021), and many articles and book chapters, lectured frequently and testified many times before the U.S. Senate and House of Representatives.

He has been a civil rights lawyer for more than 50 years, trying and arguing cases from Magistrates’ courts to the Supreme Court of the United States and other federal and state courts. His specialty is voting rights, especially the Voting Rights Act. He was once arrested in the middle of a courtroom in Holly Springs, Mississippi, while trying a civil rights case. (The charge against him was dismissed.)

He and co-counsel were named Trial Lawyer of the Year in 2003 by the American Trial Lawyers Association for a 20-year case to desegregate Mississippi’s state colleges, and he and his firm of Derfner, Altman & Wilborn were named Pro Bono Lawyers of the Year by in 2007 by both the South Carolina Bar and the American Bar Association for their overall work including saving a historic African American graveyard. In 2021, he received the rarely given James L. Petigru Award of the Charleston County Bar, named after South Carolina’s most famous opponent of Secession.

He is Constitutional Law Scholar in Residence at the Charleston School of Law. He received his A.B. from Princeton, where he received the Koren Prize in History, and his LL.B. from Yale, where he was Note & Comment Editor of the Yale Law Journal. He clerked for Hon. David L. Bazelon, Chief Judge of the U.S. Court of Appeals for the D.C. Circuit. He practices with Derfner & Altman, in Charleston. He is married to Mary Giles and has two sons, Joel, who lives in New York, and Jeremy, who lives in Seattle.

Panelist: Ariela J. Gross, University of Southern California
Ariela Gross, whose research and writing focus on race and slavery in the United States, teaches Contracts, History of American Law, and Race and Gender in the Law.
Gross is the author, with Alejandro de la Fuente of Harvard University, of Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana, which will be published by Cambridge University Press in January 2020. She and de la Fuente discuss the book here and here.
Her previous book, What Blood Won’t Tell: A History of Race on Trial in America, has won several awards, including the 2009 J. Willard Hurst Prize for the best book in sociolegal history from the Law and Society Association; the 2009 Lillian Smith Book Award for the best book on the South from the Southern Regional Council; and the American Political Association's prize for the best book on Race, Ethnicity, and Politics. Gross also is the author of Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (Princeton University Press, 2000; in paperback by University of Georgia Press, 2006) and numerous law review articles and book chapters. She is the co-author of several history textbooks, including America Past & Present (Pearson Longman Pub., 8th ed. 2008).
Gross received her BA from Harvard University, her JD from Stanford Law School, and her PhD in History from Stanford University. In 2017-18, she was a Fellow at the Center for Advanced Study in the Behavioral Sciences at Stanford University, and an American Council of Learned Societies Collaborative Research Fellow. She received a Guggenheim Fellowship, a Frederick J. Burkhardt Fellowship of the American Council of Learned Societies, and an NEH Huntington Library Long-Term Fellowship to support her research for What Blood Won’t Tell. In 2010, she was appointed a Distinguished Lecturer by the Organization of American Historians. She joined the USC Gould School of Law faculty in 1996.

Panelist: J. Morgan Kousser, Caltech
Morgan Kousser (pronounced Cow’ zer) is William R. Kenan, Jr. Professor of History and Social Science at the California Institute of Technology and the author of The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880-1910 (Yale Univ. Press, 1974) and Colorblind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction (Univ. of NC Press, 1999), as well as 47 scholarly articles, 83 book
reviews or review essays, 26 entries in encyclopedias and dictionaries, 45 papers at scholarly conventions, and 74 talks at universities. Colorblind Injustice was co-winner of the 1999 Lillian Smith Award of the Southern Regional Council and of the Ralph J. Bunche Award of the American Political Science Association. Most of his work has concerned minority voting rights, the history of education, and the legal and political aspects of race relations in the 19th and 20th centuries. From 2000 through 2012, he was the executive editor of the journal Historical Methods. He has served on the editorial boards of The Journal of American History, The Journal of Interdisciplinary History, Social Science History, and Historical Methods.
Kousser has also served as an expert witness or consultant in over 60 federal or state voting rights cases, and he testified before a subcommittee of the U.S. House of Representatives in 1981 and 2019 about the renewal of the Voting Rights Act. He was the principal expert witness on the intent issue for the Mexican-American Legal Defense and Education Fund in the Los Angeles Supervisors’ redistricting case, Garza v. County of Los Angeles (1990) and for the U.S. Department of Justice in U.S. v. Memphis (1991). Garza resulted in the election of the first Latino in 115 years to the nation’s largest county governing body; the Memphis case resulted in the election of the first African-American mayor in the history of the city. He was also an expert witness for the NAACP-Legal Defense Fund in Shaw v. Hunt (1994), the North Carolina “racial gerrymandering” case, for the Justice Department in its Texas counterpart, Vera v. Richards (1994), and for MALDEF in Cano v. Davis, the 2002 California congressional and legislative redistricting case. His most recent testimony includes redistricting cases in Texas, voter ID cases in Texas, North Carolina, and Alabama, and the felony disfranchisement case in Florida. In addition, he was the principal expert witness in all of the cases that have gone to trial under the California Voting Rights Act: Palmdale, Highland, Santa Clara, and Santa Monica, as well as a consultant in 16 other CVRA actions.
In 2008, he published the first comprehensive history of Section 5 of the Voting Rights
Act, a 108-page article in the Texas Law Review, and in 2015, an analysis of the largest database ever collected on voting rights cases.
In 2011, he became the first professor from the Humanities and Social Sciences Division to win the Richard P. Feynman Teaching Award at Caltech. Seventeen professors in STEM fields had previously won the award.
Educated at Princeton and Yale, he has been a visiting professor at Michigan, Harvard, Claremont Graduate University, and Hong Kong University of Science and Technology. In 1984-85, he was Harmsworth Prof. of American History at Oxford. Since 1969, his primary affiliation has been with Caltech. He retired from teaching at Caltech in July, 2020.

Panelist: Thomas Saenz, MALDEF
short bio: Thomas Saenz is President and General Counsel of MALDEF; he leads the organization in pursuing litigation, policy advocacy, and community education to promote the civil rights of all Latinos living in the United States in the areas of education, employment, immigrants’ rights, and voting rights. Saenz rejoined MALDEF in August 2009, after four years on Los Angeles Mayor Antonio Villaraigosa's executive team. He previously spent 12 years at MALDEF practicing civil rights law, including four years as litigation director. He has served as lead counsel for MALDEF in numerous cases, including challenges to California Proposition 187, California Proposition 227, and California congressional redistricting. In 2016, Saenz argued before the U.S. Supreme Court in United States v. Texas, representing intervenors defending Obama Administration deferred action initiatives. Saenz graduated from Yale College and Yale Law School; he clerked for two federal judges before initially joining MALDEF in 1993.
longer bio: In 2009, Thomas A. Saenz returned to MALDEF as President and General Counsel. He leads MALDEF’s national efforts to promote the civil rights of all Latinos living in the United States. Previously, as Counsel to Los Angeles Mayor Antonio Villaraigosa, Saenz served on the four-person executive team to the mayor, where he provided legal and policy advice on major initiatives. During his four-year tenure with the Mayor’s Office, Saenz helped to lead the legislative effort to change the governance of Los Angeles Unified School District (LAUSD), and served for two years as lead liaison on labor negotiations, with a goal of addressing serious financial challenges in partnership with the City’s workers.
Saenz previously practiced civil rights litigation at MALDEF for 12 years, including four years as Vice President of Litigation. He was MALDEF’s lead counsel in the successful challenge to California’s anti-immigrant Proposition 187, and he led numerous civil rights cases in the areas of immigrants’ rights, education, employment, and voting rights. Saenz achieved several victories against ordinances unlawfully restricting the rights of day laborers, served as lead counsel in the 2001 challenge to California’s congressional redistricting, and initiated the employment discrimination lawsuit resulting in a $50 million settlement with Abercrombie and Fitch. He also served as MALDEF’s lead counsel in two court challenges to Proposition 227, a California English-only education initiative. Saenz was also the lead drafter of the amicus brief on behalf of Latino organizations supporting affirmative action in the U.S. Supreme Court case of Grutter v. Bollinger. More recently, in 2016, Saenz argued before the Supreme Court in United States v. Texas, representing intervenors defending Obama Administration deferred action initiatives.
Saenz recently concluded, after nearly 20 years, his service on the Los Angeles County Board of Education. He also previously served as chair of the National Hispanic Leadership Agenda (NHLA), and continues to serve as a vice chair of the Leadership Conference for Civil and Human Rights. Saenz also serves on the boards of the California Community Foundation and of the Campaign for College Opportunity. In the past, Saenz has served as steering committee co-chair of the California Civil Rights Coalition and as a member of the Los Angeles County Commission on Human Relations, the American Bar Association (ABA) Commission on Hispanic Legal Rights and Responsibilities, the ABA Commission on Immigration, the U.S. Department of Education’s Equity and Excellence Commission, and the California Task Force on K-12 Civic Learning. He has lectured at numerous universities, and for eight years, Saenz taught Civil Rights Litigation as an adjunct lecturer at the University of Southern California (USC) Law School. He has authored numerous publications, in law reviews, anthologies, newspapers, and online journals.
Saenz has been recognized on numerous occasions for his work. He was selected as one of Hispanic Business Magazine’s “100 Most Influential Hispanics” in October 2009. Among many other honors, he received the Instituto de los Mexicanos en el Exterior (IME) Ohtli Award in 2006, the 2010 Corazón Award from Univision, and the ABA Spirit of Excellence Award in 2013.
Saenz was born and raised in southern California. He graduated summa cum laude from Yale University, and he received his law degree from Yale Law School. Saenz served as a law clerk to the Honorable Harry L. Hupp of the U.S. District Court for the Central District of California and to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit before initially joining MALDEF in 1993.

Panelist: Franita Tolson, USC Gould School of Law