Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 1-1-2002 Cleansing Moments and Retrospective Justice Margaret M. Russell Santa Clara University School of Law, [email protected] Follow this and additional works at:http://digitalcommons.law.scu.edu/facpubs Recommended Citation 101 Mich. L. Rev. 1225 This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. CLEANSING MOMENTS AND RETROSPECTIVE JUSTICE MargaretM . Russell* I. INTRODUCTION: "RE-TRYING" RACE We live in an era of questioning and requestioning long-held assumptions about the role of race in law, both in criminal prosecu- tions specifically and in the legal process generally. Certainly, the foundational framework is not new; for decades, both legal literature and jurisprudence have explored in great detail the realities of racism in the legal system.' Even among those who might prefer to ignore the role of race discrimination in more than two centuries of American law, denial is no longer a viable or intellectually defensible option. Rather, debate now centers upon whether or not the extensive history of American jurisprudential race discrimination should affect the way we interpret or resolve current doctrinal dilemmas. Perhaps the most well-known example of this requestioning is the burgeoning innocence movement, which emerged primarily from scientific DNA research that established the factual innocence of long- * Associate Professor, Santa Clara University School of Law. A.B. 1979, Princeton. JD. 1984, Stanford; J.S.M. 1990, Stanford. - Ed. Supriya Bhat '04 and Aryn Pedowitz '04 of the Santa Clara University School of Law provided excellent research assistance. I owe special thanks to Anthony V. Alfieri for his prodigious skills in envisioning this essay Colloquium. I am also grateful to The Center for Social Justice and Public Service at the Santa Clara University School of Law, which sponsored a symposium in November 2002 to support the development of scholarly papers for this law review Colloquium. A special thanks to the following people for their fine work in support of the Santa Clara symposium: Richard Delgado; Jean Stefancic; Eric K. Yamamoto; Stephanie M. Wildman; and Melanie Esquivel. Finally, I am especially appreciative of the support of Lee Halterman and Kimiko Russell- Halterman. 1. See, e.g., DERRICK BELL, RACE, RACISM, AND AMERICAN LAW (2001); DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM (2000); CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVE- MENT (Kimberld Crenshaw et al. eds., 1995); CRITICAL RACE THEORY: THE CUTTING EDGE (Richard Delgado ed., 1995); CRITICAL RACE THEORY: AN INTRODUCTION (Richard Delgado & Jean Stefanic eds., 2001); GEORGE M. FREDERICK, RACISM: A SHORT HISTORY (2002); LANI GUINIER & GERALD TORRES, THE MINER'S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY (2002); IAN F. HANEY LOPtZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996); A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS (1978); RANDALL KENNEDY, RACE, CRIME, AND THE LAW (1998); JUAN F. PEREA ET AL., RACE AND RACES: CASES AND RESOURCES FOR A DIVERSE AMERICA (2000); ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT (1990); ERIC K. YAMAMOTO, INTERRACIAL JUSTICE: CONFLICT AND RECONCILIATION IN POST-CIVIL RIGHTS AMERICA (1999). 1225 HeinOnline -- 101 Mich. L. Rev. 1225 2002-2003 1226 Michigan Law Review [Vol. 101:1225 incarcerated (including Death, Row) defendants.2 The extraordinary impact of the innocence movement lies in the compelling simplicity of its theoretical underpinnings: If innocent people have been and continue to be incarcerated and even executed, upon what claims of legitimacy does our criminal justice system rely? Moreover, if innocent people continue to serve out sentences (and even to await execution on Death Row), is there not a moral as well as legal imperative to reopen their cases and correct the past? To the extent that individual innocence cases may also reveal racial discrimination in the prosecu- tion, conviction, and post-conviction phases, additional attention must be accorded to the impact of such prejudice upon racial communities and upon the credibility of the justice system as a whole.' In a sense, the flip side (yet conceptual companion) of the inno- cence movement is the drive to reopen long-dormant, 1960s civil rights era prosecutions in an effort to correct both the individualized injustices and the broad community harms that flowed from those unresolved investigations and trials. These cases include the murders of: civil rights leader Medgar Evers; four girls killed in the Sixteenth Street Baptist Church bombing in Birmingham; and civil rights workers James Chaney, Michael Schwerner, and Andrew Goodman. In these cases, the racism of the era resulted in the failure either to pursue white supremacists - sometimes because those culpable were state actors - or to prosecute cases fully and vigorously. As a conse- quence of such malfeasance, white supremacists escaped prosecution or conviction, and remained at liberty well into old age - sometimes gloating publicly about the murders. The opportunity to bring these individuals to trial and possibly to correct the historical record repre- sents what Myrlie Evers, widow of murdered civil rights leader Medgar Evers, has termed "cleansing moments" - the use of present- 2. For in-depth consideration of the rise of innocence movements, see BARRY SCHECK & PETER NEUFELD, ACrUAL INNOCENCE (2000). For examples of leading innocence projects, see Benjamin N. Cardozo School of Law Innocence Project, at http:// innocenceproject.org (last visited June 2, 2003); California Western School of Law Inno- cence Project, at http://www.cwsl.edu/icda/l_Innocence.html (last visited June 2, 2003); Northwestern University School of Law Center on Wrongful Convictions, at http://www.law.northwestern.edu/depts/clinic/wrongful/ (last visited June 2, 2003); and Santa Clara University School of Law Innocence Project, at http://ncip.scu.edu (last visited June 2, 2003). 3. In January 2003, stating that his state's capital system was "haunted by the demon of error," particularly with regard to the treatment of racial minorities and poor people, Gov- ernor George Ryan of Illinois commuted the sentences of 164 Death Row inmates to life in prison without possibility of parole. See Maurice Possley & Steve Mills, Clemency for All: Ryan Commutes 164 Sentences to Life in Prison Without Parole, CHI. TRIB., Jan. 12, 2003, at 1. 4. See, e.g., J.K. Dineen & Peter De Marco, "Mississippi Burning" Murders; Second Chance for Justice; Case Building in 1964 Civil Rights Killings, N.Y. DAILY NEWS, May 3, 2001, at I; Emily Wagster, Civil Rights Killings Haunt Mississippi, CHI. TRIB., May 27, 2002, at 6. HeinOnline -- 101 Mich. L. Rev. 1226 2002-2003 March 20031 Retrospective Justice 1227 day procedures to accomplish retrospective justice.' As with innocence cases, these unfiled or failed prosecutions deserve close scrutiny for what they may reveal about the illegitimacy of the criminal justice system, not only for the individuals involved but also for the broader society that the system is supposed to serve. If racial injustice is discovered, can it be retried or reopened? Are there extralegal consid- erations that militate in favor of reopening the investigations of such cases if constitutional double jeopardy or speedy trial objections are properly addressed?6 Regardless of the outcome of such retried or reopened race cases, are there broader ameliorative benefits that communities may experience as a result of the reinvestigation of such cases? This Essay shall address these questions in the context of several civil rights era murder prosecutions of the 1960s. It is beyond the scope of this Essay to address fully the range of complex proce- dural, substantive, and tactical concerns underlying the decisions to reopen (or not to reopen) particular cases. Rather, the goal is to examine both the concept of reopening such cases in the search for racial justice and the broader meanings underlying the impetus to reopen them. II. CIVIL RIGHTS ERA MURDERS A. The Context: Civil Rights Advances and SupremacistB acklash To comprehend the enormity of the hate crimes discussed in this Essay - and the magnitude of efforts to reopen such cases - it is instructive to recall the tenor of the momentous, tumultuous times in which they occurred. In the 1950s and 1960s, insurgent social protest movements - particularly the civil rights movement - propelled consideration of race and class oppression into public debate nation- wide.7 Thousands of people of all races and backgrounds were inspired 5. Ed Vulliamy, Deep South Confronts Murderous Past, OBSERVER (London), Nov. 14, 1999, at 1. For further discussion of Myrlie Evers and the murder of Medgar Evers, see infra notes 50-57 and accompanying text. 6. Reopening cases can raise thorny problems with regard to the U.S. Constitution's Double Jeopardy Clause, see U.S. CONST. amend. V ("[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. ...) , and speedy trial guaran- tees, see U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial... ."), For discussion of these considerations in the context of reopening civil rights era cases, see infra notes 121-139. 7. Richly detailed accounts of this era include: JACK BASS, UNLIKELY HEROES (1981); TAYLOR BRANCH, PARTING THE WATERS: AMERICA IN THE KING YEARS 1954-63 (1988); SEPTIMA CLARK, ECHO IN MY SOUL (1962); JAMES FARMER, LAY BARE THE HEART: AN AUTOBIOGRAPHY OF THE CIVIL RIGHTS MOVEMENT (1985); DAVID J. GARROW, BEARING THE CROSS: MARTIN LUTHER KING, JR. AND THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE (1986); DAVID J. GARROW, THE FBI AND MARTIN LUTHER KING, JR. (1981); DAVID J. GARROW, PROTEST AT SELMA: MARTIN LUTHER KING, JR. AND THE VOTING RIGHTS AeT OF 1965 (1978); VINCENT HARDING, THERE IS A RIVER: THE BLACK STRUGGLE FOR FREEDOM IN AMERICA (1981); MARTIN LUTHER KING, JR., STRIDE HeinOnline -- 101 Mich. L. Rev. 1227 2002-2003 1228 Michigan Law Review [Vol. 101:1225 by the leadership of individuals such as Martin Luther King, Jr., Rosa Parks, Ralph Bunche, Thurgood Marshall, Constance Baker Motley, and others who brought the scourge of race discrimination to the fore- front of national discussion. Organizations such as the Congress of Racial Equality ("CORE"), the National Association for the Advancement of Colored People ("NAACP"), the Anti-Defamation League ("ADL"), the Southern Christian Leadership Conference ("SCLC"), and the Student Nonviolent Coordinating Committee ("SNCC") energized anti-racist activism in the form of boycotts, sit- ins, pickets, vigils, and litigation; these organizations and others devel- oped specific agendas and targeted strategies for breaking through barriers to access in the areas of voting, education, employment, and public accommodations These strategies and agendas unfolded over a period of many years in order to achieve their intended objectives. The most famous example is the architecture of the long-term strategy of the NAACP Legal Defense and Educational Fund ("LDF") to secure the end of Plessy v. Ferguson's "separate but equal" doctrine of racial segregation.' The culmination of LDF's efforts was the Brown v. Board of Education decision and its desegregation of public education, but in fact LDF had begun to lay the groundwork for the Brown litiga- tion decades earlier in cases seeking the admission of blacks to state law schools in Maryland and Missouri."0 Both literally and figuratively, TOWARD FREEDOM: THE MONTGOMERY STORY (1958); GENNA RAE MCNEIL, GROUNDWORK: CHARLES HAMILTON HOUSTON AND THE STRUGGLE FOR CIVIL RIGHTS (1983); ALDON D. MORRIS, THE ORIGINS OF THE CIVIL RIGHTS MOVEMENT (1984); HARVARD SITKOFF, THE STRUGGLE FOR BLACK EQUALITY, 1954-1992 (1993); JUAN WILLIAMS, EYES ON THE PRIZE: AMERICA'S CIVIL RIGHTS YEARS, 1954-65 (1987); HARRIS WOFFORD, OF KENNEDYS AND KINGS: MAKING SENSE OFTHE SIXTIES (1980). 8. Key biographies, autobiographies, memoirs, and organizational histories of this era include: CLAYBORNE CARSON, IN STRUGGLE: SNCC AND THE BLACK AWAKENING OF THE 1960S (1981); LEWIS H. FENDERSON, THURGOOD MARSHALL: FIGHTER FOR JUSTICE (1969); FANNIE LOU HAMER, To PRAISE OUR BRIDGES: AN AUTOBIOGRAPHY (1967); CHARLES FLINT KELLOGG, NAACP: A HISTORY OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (1967); DAVID L. LEWIS, KING: A CRITICAL BIOGRAPHY (1970); AUGUST MEIER & ELLIOTT RUDWICK, CORE: A STUDY IN THE CIVIL RIGHTS MOVEMENT (1973); ANNE MOODY, COMING OF AGE IN MISSISSIPPI (1968); CONSTANCE BAKER MOTLEY, EQUAL JUSTICE UNDER LAW (1998); PAT WATTERS, DOWN TO NOW: REFLECTIONS ON THE SOUTHERN CIVIL RIGHTS MOVEMENT (1971); SHEYANN WEBB ET AL., SELMA, LORD, SELMA: GIRLHOOD MEMORIES OF THE CIVIL RIGHTS DAYS (1980); ROY WILKINS & TOM MATHEWS, STANDING FAST: THE AUTOBIOGRAPHY OF ROY WILKINS (1982); JUAN WILLIAMS, THURGOOD MARSHALL: AMERICAN REVOLUTIONARY (1998); and HOWARD ZINN, SNCC: THE NEW ABOLITIONISTS (1965). 9. Plessy v. Ferguson, 163 U.S. 537 (1896). 10 See Brown v. Bd. of Educ., 347 U.S. 483 (1954). The Maryland and Missouri deci- sions are, respectively, University of Maryland v. Murray, 169 Md. 478 (1936), and Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). For a more detailed description of Brown LDF strategies and cases, see MOTLEY, supra note 8, at 61-96. See also JACK GREENBERG, CRUSADERS IN THE COURT: HOW A DEDICATED BAND OF LAWYERS FOUGHT FOR THE CIVIL RIGHTS REVOLUTION (1994); RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (1975). HeinOnline -- 101 Mich. L. Rev. 1228 2002-2003 March 2003] RetrospectiveJ ustice 1229 these legal and political approaches to integration set forth a road map that - it was hoped - would lead to deep systemic reform; they envi- sioned a late twentieth century in which full equality was supposed to be thorough, inevitable, and unstoppable." Racial supremacists had a far different road map in mind. Even a brief chronology of pivotal events of the mid-1950s to mid-1960s conveys an extraordinary cycle of civil rights progress and violent supremacist backlash. Each major step in the movement for racial equality was accompanied by massive white resistance. This resistance, already firmly embedded in American history through the thousands of lynchings of blacks between the 1880s and the 1950s, continued even as the numbers of lynchings declined; the Ku Klux Klan and other white supremacist groups routinely used threats, beatings, bombings, and murders to ensure that their message of intimidation and terror endured." As Anthony Alfieri has noted, throughout U.S. history the pattern of federal prosecutorial response to racial violence generally has been "characterized by inaction and spare enforce- ment."3 During this era, a lack of presidential leadership, combined with intermittently interventionist federal law enforcement and rare federal litigation, reinforced white supremacists' sense of superiority 4 and control.' 11. The failure of American society to progress significantly toward this goal has led many to doubt the gains of the civil rights era, particularly with respect to test case litigation. The past decade has seen the emergence of a significant body of literature that questions the meaning of the Brown legacy, given the persistence of de facto segregation, educational crises, and racial inequities in public schools. See, e.g., JAMES T. PATTERSON, BROWN V. BOARD OF EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TROUBLED LEGACY (2001); GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 49-57 (1991); WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID: THE NATION'S TOP LEGAL EXPERTS REWRITE AMERICA'S LANDMARK CIVIL RIGHTS DECISION (Jack M. Balkin ed., 2001). 12. See Beth Klopott, Historical Chronology, in BRIDGES AND BOUNDARIES: AFRICAN AMERICANS AND AMERICAN JEWS 245, 245-58 (Jack Salzman et al. eds., 1992) [hereinafter Klopott, Historical Chronology]. Bridges and Boundaries traces a pattern of racial progress accompanied by racial violence. See BRIDGES AND BOUNDARIES, supra. For comprehensive accounts of the role of lynchings in the antebellum and new South eras, see DICKSON D. BRUCE, JR., VIOLENCE AND CULTURE IN THE ANTEBELLUM SOUTH 114-60 (1979); W. FITZHUGH BRUNDAGE, LYNCHING IN THE NEW SOUTH: GEORGIA AND VIRGINIA, 1880- 1930 4-16 (1993). For narratives about massive, violent resistance to racial progress in the 1950s and 1960s, see generally NUMAN V. BARTLEY, THE RISE OF MASSIVE RESISTANCE (1969); HENRY HAMPTON & STEVE FAYER, VOICES OF FREEDOM: AN ORAL HISTORY OF THE CIVIL RIGHTS MOVEMENT FROM THE 1950S THROUGH THE 1980S (1990). 13. Anthony V. Alfieri, Prosecuting Race, 48 DUKE L.J. 1157, 1199 (1999). Alfieri's analysis of present-day racial violence - for example, the highly-publicized 1997 assault of Abner Louima - is deeply rooted in his examination of lynchings and mob violence extending back to the Reconstruction Era. Id. at 1185-92. 14. See EARL OFARI HUTCHINSON, BETRAYED: A HISTORY OF PRESIDENTIAL FAILURE TO PROTECT BLACK LIVES (1996). Hutchinson attributes these failures to political expediency and notes that federal intervention occurred only when black leaders pressured the federal government to respond "when a violent act triggered a major riot, generated mass protest, or attracted press attention." Id. at 214. For further background about the role HeinOnline -- 101 Mich. L. Rev. 1229 2002-2003 1230 Michigan Law Review [Vol. 101:1225 Civil rights activists knew that the potential for violent retaliation was a constant risk, particularly in the South. They knew that self- defense was a key part of their training and that death might result from their efforts. As a result, the racial climate in which the killings this Essay focuses on occurred was one in which each murder bore a distinct, contextual message: hatred of black progress and defense of racial hierarchy. A major springboard for this backlash occurred in 1954 when the U.S. Supreme Court decided Brown v. Board of Education. To the black community and other supporters of civil rights, the landmark Brown decision was lauded with "the status of a Magna Carta"5; to segregationists, it was a rallying cry for massive resistance. As the Brown mandate was extended to other contexts,16 the segregationist response remained one of steadfast defiance, usually defended with the rationale of "states' rights." Constance Baker Motley, one of the LDF's leading litigators during this period, recalls: In response to Brown in 1954, the Southern states had resurrected the basic political themes that guided the South during the Civil War - that is, nullification and interposition, which affirmed that a state had the constitutional right to nullify the effectiveness of any federal law or fed- eral court decision with which it disagreed and to interpose its sover- eignty between the decision or law and the federal government. Every Deep South state had enacted massive resistance laws. The North, East, and West were too far removed from the bitter afterglow of the Civil War fully to comprehend this threat to national unity. In some state capi- tals in the Old South, the Confederate flag was still flying or had been raised anew.7 of presidential leadership in civil rights history, see generally ROBERT FREDERICK BURK, THE EISENHOWER ADMINISTRATION AND BLACK CIVIL RIGHTS (1984); VICTOR S. NAVASKY, KENNEDY JUSTICE (1971); and ARTHUR M. SCHLESINGER, JR., A THOUSAND DAYS: JOHN F. KENNEDY IN THE WHITE HOUSE (1965). 15. MOTLEY, supra note 8, at 108. 16. See, e.g., Watson v. City of Memphis, 373 U.S. 526 (1963) (ending segregation in municipal parks); Johnson v. Virginia, 373 U.S. 61 (1963) (ending segregation in state court- houses); Gayle v. Browder, 352 U.S. 903 (1956) (ending segregation in intrastate transporta- tion facilities), affg 142 F. Supp. 707 (M.D. Ala. 1956); Dawson v. City of Baltimore, 350 U.S. 877 (1955) (ending segregation in municipal beaches), affg 220 F.2d 386 (4th Cir. 1955); Holmes v. City of Atlanta, 350 U.S. 879 (1954) (ending segregation in municipal golf courses), vacating 223 F.2d 93 (5th Cir. 1953); Muir v. Louisville Park Theatrical Ass'n, 347 U.S. 971 (1954) (ending segregation in municipal amphitheaters), vacating 202 F.2d 275 (6th Cir. 1953). 17. MOTLEY, supra note 8, at 134-35. For an interesting analysis of the post-Brown South, asserting that certain moderate southern communities (e.g., Charlotte, North Caro- lina) chose a strategy of controlled accommodation of integration demands to preserve busi- ness interests, see Davison M. Douglas, The Quest for Freedom in the Post-Brown South: Desegregationa nd White Self-Interest, 70 CHI.-KENT L. REV. 689 (1994). Notes Douglas: Fearing the negative impact of racial strife on the city's strong economic climate, Charlotte's white business elite, closely allied with the city's elected officials, took action to fend off black protest by engaging in voluntary but token integration in advance of most other south- HeinOnline -- 101 Mich. L. Rev. 1230 2002-2003 March 20031 Retrospective Justice 1231 Further examples of this massive resistance include the refusal of state universities to enroll black students who were entitled by law to attend, the refusal of state courts to order those universities to comply with Brown when admissions policies were challenged, and the mob violence that often accompanied black students' attempts to enroll. 8 In August 1955, Emmett Till, a fourteen-year-old black youth from Chicago, was lynched in Mississippi for flirting with a white girl.9 That same year, Rosa Parks was arrested for refusing to surrender her seat to a white man on a Montgomery, Alabama, city bus.' The ensuing year-long Montgomery Bus Boycott, led by twenty-six-year-old Martin Luther King, Jr. and others, ultimately resulted in a 1956 U.S. Supreme Court decision striking down Alabama's intrastate bus segregation laws.2" Along the way, boycotters and random bystanders endured an exceptional amount of violence: beatings (including that of a fifteen-year-old girl), dynamite explosions, shotgun snipers (includ- ing the shooting of a pregnant woman); and church and home bombings.22 In February 1956, the third month of the boycott, the Mississippi and Alaba na White Citizens' Councils chose Montgomery as the site of what they described as "the largest segregation rally of the century."' Before a crowd of ten thousand people, Montgomery city commissioners and other local officials exalted segregation and exhorted the crowd to defend their state: " 'I am sure that you are not ern cities. What distinguished Charlotte and its moderate counterparts like Atlanta and Dallas from more obstreperous southern communities like Birmingham and New Orleans was not so much a philosophical embrace of racial integration but rather a calculated under- standing that controlled desegregation could serve broader economic interests. Id. at 692. 18. MOTLEY, supra note 8, at 112-18 (regarding LDF's litigation to integrate the Uni- versity of Florida Law School); see also WILLIAMS, supra note 7, at 210-18. In Mississippi, the state constitution was amended to allow state officials to close schools to avoid desegre- gation. Id. at 210. 19. MOTLEY, supra note 8, at 163; WILLIAMS, supra note 7, at 39-57. The lynching of Emmett Till - and the acquittal by an all-white, all-male jury of the two white men accused of murdering him - provoked world-wide shock and condemnation. Despite detailed eye- witness testimony and an identification of Till's mangled corpse by his own mother, the jury acquitted the two defendants after about an hour of deliberations; the jury foreman later asserted, "I feel the state failed to prove the identity of the body." Id. at 52. Williams states: "Some compared events in Mississippi to the Holocaust of Nazi Germany; one writer called Till America's Anne Frank." Id. In her autobiography, Anne Moody noted: "Before Emmett Till's murder, I had known the fear of hunger, hell and the Devil. But now there was a new fear known to me - the fear of being killed just because I was black." Id. at 56 (quoting MOODY, supra note 8, at 107). 20. BRANCH, supra note 7, at 128-29; WILLIAMS, supra note 7, at 66-67. 21. Gayle v. Browder, 352 U.S. 903 (1956). For further background regarding the pivotal role of the Montgomery Bus Boycott in modern civil rights history, see generally KING, su- pra note 7, and WILLIAMS, supra note 7, at 70-89. 22. BRANCH, supra note 7, at 197-200. 23. Id. at 168. HeinOnline -- 101 Mich. L. Rev. 1231 2002-2003 1232 Michigan Law Review [Vol. 101:1225 going to permit the NAACP to control your state,' declared the star speaker, Senator James Eastland of Mississippi, whose 'one prescrip- tion for victory' was for Southern white people to 'organize and be militant.' "24 That same month, whites at the University of Alabama rioted in protest against the court-ordered admission of Autherine Lucy, the first black student in the school's history; the University responded to the violence by suspending Lucy "for her own safety"; it took no action against the rioters. Eventually, Lucy withdrew from the University and from her litigation because of the failure of federal authorities (the federal district court, the Court of Appeals, and the President) to take steps to enforce the courts' orders and to ensure her physical safety.' In 1957, the SCLC was established by King, Bayard Rustin, and Stanley Levinson to organize activities for nonviolent civil rights groups. That same year, Arkansas used its own state guard to defy implementation of Brown. After a federal district judge ordered the admission of black students to Central High School in Little Rock,26 Governor Orval Faubus prevented the "Little Rock Nine" from enrolling, claiming that he had called up the guard to protect the public order.2' Faubus's open defiance of federal law encouraged mob rule to surround the school as angry whites jeered the students and cheered on the troops. When the federal district court again ordered the school to admit the black students, Faubus ordered all schools closed for a year. Faubus's assertion of local control over federal mandate, perceived at the time to be "the most severe test of the Constitution since the Civil War,"' resulted in an emergency session of the U.S. Supreme Court in August 1958. The Court ruled against Faubus and ordered the students admitted.29 Local white groups again surrounded the school to prevent its integration until President Dwight Eisenhower finally ordered a thousand federalized troops to Little Rock to enforce the integration order3.0 24. Id. 25. MOTLEY, supra note 8, at 121-24. The decisions in Autherine Lucy's court chal- lenges are: Lucy v. Adams, 134 F. Supp. 235 (N.D. Ala. 1955), aff'd, 228 F.2d 619 (5th Cir. 1955), cert. denied, 351 U.S. 931 (1956) (injunction ordering the University to admit Lucy); 228 F.2d 620 (5th Cir. 1955) (decision that defendant had not violated earlier court order to admit Lucy). 26. Aaron v. Cooper, 156 F. Supp. 220 (E.D. Ark. 1957). 27. MOTLEY, supra note 8, at 130. 28. BRANCH, supra note 7, at 223. 29. Cooper v. Aaron, 358 U.S. 1 (1958). 30. For detailed accounts of the Little Rock crisis, Faubus's intransigence, and Eisenhower's reluctance to intervene, see BRANCH, supra note 7, at 222-24. See also DAISY BATES, THE LONG SHADOW OF LITTLE ROCK: A MEMOIR (1962); ELIZABETH HUCKABY, CRISIS AT CENTRAL HIGH: LITTLE ROCK, 1957-58 (1980); WILLIAMS, supra note 7, at 90- 119. One scholar notes that a 1958 Gallup Poll listed Orval Faubus as one of the ten most HeinOnline -- 101 Mich. L. Rev. 1232 2002-2003 March 20031 Retrospective Justice 1233 As the 1950s ended, watered-down, ineffectual civil rights legisla- tion began to emerge from Washington and white supremacist violence continued to flourish throughout the South.3' In 1959, Mack Charles Parker, a black man, was lynched in Mississippi after being abducted by a group of hooded men from the Mississippi jail cell where he awaited trial for the rape of a white woman. An FBI investi- gation established the probable complicity of a local law enforcement official, but local prosecutors and juries refused to follow up on the case.32 In 1960, the year that John F. Kennedy was elected president, CORE sponsored "sit-ins" around the country, beginning with a sit-in to integrate a Woolworth's lunch counter in Greensboro, North Carolina.33 That same year, SNCC and the Negro American Labor Council were established, joining groups such as CORE, the NAACP, and SCLC in the nonviolent pursuit of social change.4 In 1961, President John F. Kennedy issued Executive Order 10925, which barred discrimination among contractors doing business with the federal government and required that "affirmative steps" be taken to recruit and promote minorities.35 That same year, CORE sponsored an ambitious set of "Freedom Rides" - a term coined to describe the activities of multiracial groups of nonviolent activists who traveled on public buses throughout the South to test compliance with the Supreme Court mandate to desegregate interstate bus facilities. The Freedom Rides were scheduled to arrive in New Orleans on May 17, 1961, the seventh anniversary of the Brown decision.6 Despite their optimistic name, the trips were in fact "life-and-death" rides because of the brutal violence encountered by the riders along the way. For example, one bus of Freedom Riders was chased down the highway by approximately fifty cars containing a total of two hundred men: admired Americans. James T. Patterson, The Troubled Legacy of Brown v. Board, in BROWN V. BOARD: ITS IMPACT ON EDUCATION, AND WHAT IT LEFT UNDONE 2 (Phillipa Strum ed., 2002). 31. For a history of the behind-the-scenes evisceration of civil rights protections in the Civil Rights Act of 1957, see BRANCH, supra note 7, at 220-22. 32. Id. at 257-58. 33. The organizers of the sit-ins intended for them to be a persistent, disciplined, non- violent method of immediately integrating places of public accommodation, public transpor- tation facilities, and other public services; nevertheless, because of segregationist backlash and resistance, the sit-ins usually resulted in mass arrests, trials, and convictions. As Motley notes, those who participated in the earliest sit-ins relied upon a "frail legal position" in their efforts to integrate privately owned facilities, but by the mid-Sixties their efforts were vindi- cated through key U.S. Supreme Court decisions, and through the passage of civil rights statutes such as the Civil Rights Act of 1964. MOTLEY, supra note 8, at 131-32, 196-200 (dis- cussing the sit-ins and LDF victories in five lunch-counter sit-in cases). 34. Klopott, HistoricalC hronology,s upra note 12, at 250. 35. BRANCH, supra note 7, at 413. 36. Patterson, supra note 30, at 5. HeinOnline -- 101 Mich. L. Rev. 1233 2002-2003