The topics of states' rights, racism, and federal judges have been coming up a lot lately in the news and in social media, in a variety of contexts.
So perhaps it was particularly propitious that I came across a law review symposium tribute to the late Judge J. Skelly Wright, who as many of you know was the federal judge who struck down the Louisiana laws that segregated that state's schools. That was not a popular decision for him to make in 1960, and he and his family wereostracized, threatened, and had to live under protection.
Judge Wright was one of a number of Southern judges who made such courageous but unpopular desegregation decisions during the 50's and 60's, including John Minor Wisdom, Frank Johnson, Elbert Tuttle, and John Godbold (who I had the honor to serve under early in my career). In all cases, the judges decided that the Constitution's grants of individual civil rights outweighed the claims of state's rights in which the supporters of the segregation laws cloaked their defense.
When the Founders wrote the Constitution, they decided that federal judges should be appointed for life so they could make politically unpopular--but Constitutionally correct--decisions without fear of being removed from office. As Hamilton said in Federalist no. 78, the judiciary must strike down laws that it deems "contrary to the manifest tenor of the Constitution." Giving judges lifetime tenure, he said, ensured that judges could protect the Constitution without being subject to the "interests or whims" of the political branches.
Just something to remember when some of the politicians who claim that Constitutional rights are under attack are the same people who would dismantle one of the Constitution's principle foundations--the independence of the judicial branch. I don't always agree with every decision the federal courts make. But I agree with the Founders that our best chance for protecting the rights we have is to let judges do their job.