On Tuesday, the nation saw a through line in America’s federal judicial history of dealing with obstinate state officials protecting their power built on race.
A three-judge federal district court panel in Alabama struck down the state’s congressional map because it did not include a second majority-Black district. It directed the state Legislature to obey court commands issued under the 1965 Voting Rights Act. In June, legislators had essentially resubmitted a gerrymandered congressional map that flagrantly defied a Supreme Court order issued weeks before to replace it.
The legislators submitted the second invalid map after reportedly consulting with Republican House Speaker Kevin McCarthy. With a slim five-vote majority supporting his power, he seems willing to use any means necessary to keep it.
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This case seems destined to return to the Supreme Court. In the meantime, lawyers and bar associations — national, state, and local — have a special obligation to support the rule of law and voice the strongest disapproval of those who undermine it.
Tuesday’s opinion described the unprecedented nature of Alabama’s defiance. “We are not aware,” the panel stated, “of any other case in which a state legislature — faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district — responded with a plan that the state concedes does not provide that district.”
But there is precedent if the racial lens is broadened a bit. In 1963, George Wallace, Alabama’s segregationist governor, also defied a court order — one telling the University of Alabama to admit its first two Black students.
President John F. Kennedy dispatched federal troops to Montgomery, Ala. Wallace reluctantly stepped out of the university’s doorway, and the students entered.
Six years earlier, in Little Rock, Ark., President Dwight D. Eisenhower sent troops to protect the right of the Little Rock Nine to enroll in the previously segregated Central High School. Eisenhower did so after Governor Orville Faubus had ordered the National Guard to prevent the Black teenagers from entering the school.
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That was hardly the end of Arkansas state authorities’ efforts to maintain segregation, even as the Little Rock Board of Education had sought to comply with the Supreme Court’s 1954 decision in Brown v. Board of Education.
Faubus and other state officials pressured the local school board to adopt a “go-slow” plan, and the NAACP sued to have it invalidated. In 1958, the case reached the Supreme Court, which quickly issued a ruling invalidating the “go-slow” plan. In Cooper v. Aaron, the court recounted the history of Faubus’s interference with local authorities’ diligent efforts to comply with Brown and handle any incidents of violence themselves.
As the court wrote, in a rare opinion signed by each of the nine justices: “All this was disrupted by … obstructive measures taken by the State. … [T]he power of the State was used not to sustain law, but as an instrument for thwarting law.”
In a concurrence affirming the centrality in America of the rule of law, Justice Felix Frankfurter, a former Harvard Law School professor, wrote that the country could not afford “to enthrone official lawlessness.”
“Lawlessness,” he said, “if not checked, is the precursor of anarchy.” Systematic evasion of law “signal[s] the breakdown of constitutional processes of government on which ultimately rest the liberties of all.” He was not saying only the Supreme Court’s opinions about the law matter; he was saying that, at day’s end, its orders must be obeyed whether people agree or disagree.
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People of good will have long shuddered at what Wallace, Faubus, and their white peers in power did in the late 1950s and early 1960s trying to stop the equal protection of the law.
What the Alabama Legislature is doing continues its Jim Crow tradition and actually goes a step further. Those 20th-century segregationists did not defy a direct Supreme Court order.
Alabama’s Legislature has crossed that line. Americans cannot afford to normalize such lawlessness.
Last month, when followers of Donald Trump threatened the Fulton County grand jurors whose names appeared on the indictment of Trump and 18 others, Mary Smith, president of the American Bar Association, issued a public statement. She called it unconscionable that grand jurors’ lives “should be upended, and [their] safety threatened for being good citizens.”
All of us, particularly those in the legal profession, should follow her example. We should express, in whatever way each of us can, our condemnation of elected government officials who undermine the stability and order that law makes possible by flouting a ruling of the Supreme Court — especially one that upholds the sacred right to have our votes count, and count equally.
Justice and a safe society both depend upon it.
Laurence H. Tribe is the Carl M. Loeb University professor emeritus at Harvard Law School. Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy.
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