Atty. Lester Pines Looks at the U.S. Supreme Court and Civil Rights:  History, Civil Rights & The Supreme Court (Part 1 of 2)

NAACP Banquet25

Recently Retired Attorney Lester Pines Speaks at the NAACP Freedon Fund Banquet in October 2024

by Jonathan Gramling

After the American Civil War ended in 1865, Union forces occupied the Southern states and the former Confederate states were not allowed to fully participate in the United States until they passed the 13th, 14th and 15th Amendments that gave full citizenship to the Africans who had been enslaved. By 1870, Blacks were being elected to local, state and federal positions. In Mississippi, they held significant political power in the state legislature, which led to the appointment of Hiram Revels to represent Mississippi in the U.S. Senate in 1870, becoming the first African American U.S. Senator. (It was the 17th Amendment in 1913 that allowed U.S. Senators to be elected by the popular vote).

During this time, which was called Reconstruction, resistance had been building in the South with violent voter suppression occuring, often through the Ku Klux Klan.

“In 1876 when there was a contested election, Rutherford B. Hayes was elected president,” said Lester Pines who spoke at the NAACP Freedom Banquet. “That was the beginning of the end of Reconstruction in the South. Grant had made an effort to enforce the law. And that effort continued into the 1870s, even after Hayes was president. But there was still significant violence.”

As a part of the Compromise, Federal troops were withdrawn from the South and Black political power declined rapidly. And it came to a complete stop in 1896 with a U.S. Supreme Court ruling.

“Reconstruction came to a complete stop with Plessey vs. Ferguson, Pines said. “Plessey v. Ferguson was a radical interpretation of the 14th Amendment, which said the citizenry could be divided by race as long as all of the rights of citizenship and everything that citizens generally enjoyed in terms of contracts, travel and so forth were available to all. They could be separate. So Separate, but Equal was the law then.”

In the U.S. race has had a fluid definition that fit the political aspirations of political parties.

“The concept of race was actually much broader in the decades following the Civil War,” Pines said. “For example, Jews were considered to be a separate race. Italians were considered to be a separate race.”

What ensued after Plessey v. Ferguson was the implementation of America’s apartheid: segregation.

“This overlapped towards the beginning of the 20th Century with the rise of two things, I think,” Pines said about Plessey. “One is a form of Christian Nationalism in the guise of what was called Muscular Christianity. And the other was the rise of the pseudo-science of Eugenics. When you put together the combination of those things, along with this notion that races could be separated legally as long as the quality was maintained, which was a farce to begin with. That led to approximately 80 years of really, really vicious segregation. And then it became, in many ways, a second enslavement of African American people.”

Over the next 20 years, segregation tightened its grip through court rulings, legislation and political violence, particularly after Woodrow Wilson was elected president in 1912 and The Birth of a Nation, which promoted the Ku Klux Klan, was released in 1915.

“When Woodrow Wilson was elected president, Wilson was a really vicious racist,” Pines said. “A little known fact is that Wilson was a big fan of the first really mass movie called The Birth of a Nation, which was widely viewed across the country. That gave rise to a resurgence of the Ku Klux Klan. At the same time, there was a rise in a small African American middle class and even smaller upper class. It isn’t like African American citizens had nothing. There were people who really followed Booker T. Washington and really took to heart and made efforts to acquire property and so forth. It wasn’t 100 percent horrible. But it was horrible for the vast majority of non-white people. And it got worse after World War I because of the real resurgence of the Klan in the 1920s.”

Pines contends that these racist movements were facilitated by advances in mass communications. The national showing of The Birth of a Nation gave rise to the Ku Klux Klan. And the rise of a new media reinforced America’s apartheid.

“With the growth of a new means of communication, which was called Network Radio, it allowed for information to be transmitted very, very quickly on a national basis,” Pines said. “And there were tremendous race riots — what were called race riots — around the country during that period of time, especially after World War I. It happened in Tulsa and East St. Louis happened all over the country. The 1920s — especially the late 1920s — were the depth of the really horrible parts of segregation. I would also say this without reservation. The former Confederate States were terrorist-controlled states.”

And while the terror was primarily directed at African Americans, there were other groups who experienced it.

“Leo Frank was a Jewish man who lived in Atlanta and had a factory,” Pines said. “He was from the Northeast. He was accused of having raped and murdered a young woman. Ultimately, he was convicted and sentenced to prison with a very unfair trial because of his religion and ethnicity. There was tremendous discrimination. Ultimately he was sentenced to prison. A mob broke into the prison and he was lynched. That led to the formation of the Anti Defamation League, which was founded around the same time that the NAACP was founded.”

While Anti-Immigrant legislation was directed at Chinese, Filipino and other Asian immigrants, it was also directed towards certain Europeans as well.

“The 1924 Immigration Act was designed to stop immigration of European Jews to this country and others from Southern Europe, favoring immigration only from Northern Europe,” Pines said. “The whitest places like Scandinavia. What I am talking about is a view of American History, which I think is accurate. And just to jump forward for a moment, when the right is talking about censoring the real teaching of American History, it’s because this history is an ugly history.”

The basis for a Second Reconstruction began with the Stock Market Collapse and the beginning of the Great Depression in 1929, which caused high rates of unemployment and poverty. In 1932, Franklin Roosevelt was elected President of the United States. And by 1936, Blacks began to vote Democratic for the first time, having previously been aligned with the party of Abraham Lincoln. During World War II, A Philip Randolph pushed for the integration of the U.S. military. And Charles Hamilton Huston and the NAACP Legal Defense Fund began their legal campaign to eliminate segregation in higher education.

“There was a lot of agitation in the courts,” Pines said. “The NAACP Defense Fund was at the forefront of it. And of course with the brilliant Thurgood Marshall and the rest of the lawyers of the NAACP Legal Defense Fund really, in a calculated way, tried to undo the concept of Separate but Equal. They started with schools, but they didn’t start with elementary schools. They started with law schools. And in Missouri, there was a separate law school for Blacks and whites and they were able to get a Supreme Court decision that said that was unconstitutional. Step by step with universities, they were able to get to Brown vs. Board of Education.”

Brown v. Board of Education led to the rise of what has been called the Modern Civil Rights Movement, which began with the Montgomery Bus Boycott led by a young Rev. Martin Luther King Jr. and culminated in the 1963 March on Washington and the Selma-Montgomery March in 1965.

“This opened the floodgates of the Civil Rights Movement culminating in the passage of three significant laws: the 1964 Civil Rights Act, the 1965 Voting Rights Act and the 1968 Fair Housing Act,” Pines said. “All of them eliminated racial discrimination across the board. Public accommodations, I think, being highly significant because it then required legally that all races mixed together in public and in every form of public accommodations. That part of the 1964 Civil Rights Act really changed the face of the country. And that part of the Civil Rights Act has been strongly enforced and never attacked really. The employment part of Title VII of the Civil Rights Act, in my opinion, came under judicial attack almost from the very beginning. The Fair Housing Act of 1968, which should have really had a big impact has really not.”

A big Civil Rights push began inside and outside of government. Affirmative Action began on the federal level and defused to the states. The late James Jones who taught at the UW Law School, is considered to be the Father of Affirmative Action. The Second Reconstruction was in full force.

“I don’t want to denigrate the Civil Rights Act of 1964,” Pines said. “It’s still a very strong piece of litigation for employment discrimination. It really did also change the face of employment. And it really helped to increase the economic viability of African American families. You can see that just from who ended up going to college and so forth. There was a huge change. And there has been comparable state legislation around the country. That was really the Second Reconstruction. It really did change things dramatically. I can see it in my lifetime. I was born in 1950. You could see it. But the problem I see — this is my editorial opinion — is that in America, once we pass a law, that solves the problem. The Civil Rights laws did not solve the problem. Those laws mitigated the problem.”

The assassination of Dr. Martin Luther King Jr. took the wind out of the sails of the Civil Rights Movement. To the extent that local movements occurred in every city, town and hamlet, the Civil Rights movement progressed. To the extent that it didn’t, social conditions quickly began to erode to pre-Civil Rights conditions While the national Civil Rights movement was invaluable in getting national — and state — legislation passed, it was the local movements that determined how much of the change remained. The underlying social fissures remained.

The underlying social and economic underpinnings of the Second Reconstruction began to erode in the 1970s.

“At the same time that those laws were passed, the de-industrialization of the country started, the de-industrialization of large urban areas like Detroit and St. Louis and the suburbanization accelerated,” Pines observed. “African Americans did not benefit from suburbanization and were badly injured by de-industrialization.”

And the U.S. Supreme Court transitioned from the Warren Court — which had decided Brown v. Board of Education — to the Rehnquist Court.

“Believe it or not, when I was 18-years-old and Rehnquist was appointed a Supreme Court justice, I was like, ‘Oh, this is terrible. They are going to wreck the Supreme Court.’”

In 1978, the Bakke decision was handed down by the Supreme Court, which ruled that racial quotas to cure the past impact of racial discrimination were unconstitutional. The beginning of the end of the Second Reconstruction had begun.