A New York Times op-ed on August 29 claimed that Supreme Court Justice Joseph P. Bradley, who was appointed by the staunchly anti-slavery President Grant, opposed the Thirteenth Amendment.
This is nonsense. A biographical dictionary notes that Justice Bradley supported the “Thirteenth Amendment abolishing slavery.”
Not only did he not oppose the Thirteenth Amendment, he construed it broadly. That is made clear in a 1996 article in the Tulane Law Review. (See Michael Collins, “Justice Bradley’s Civil Rights Odyssey Revisited”).
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It is true that Justice Bradley interpreted the Fourteenth Amendment as having limits, such as the state-action limit. But that is not a pro-slavery position, but rather, a position that limits government power over people’s private lives. As the Supreme Court has explained, it “preserves an area of individual freedom by limiting the reach of federal law and federal judicial power.” The Supreme Court has reaffirmed the state-action doctrine many times, in cases such as United States v. Morrison (2000), That decision noted that the Fourteenth Amendment does not reach non-governmental discrimination.
I sent a letter to the Times taking issue with the claim that Justice Bradley had opposed the Thirteenth Amendment. But the Times refused to print my letter to the editor.
It did not matter to the Times that I had spent dozens of hours as a lawyer researching the legislative history of the Thirteenth and Fourteenth Amendments, and Reconstruction-era laws, in the course of successfully litigating United States v. Morrison (2000). That 5-to-4 Supreme Court ruling struck down a law that passed the Senate 99-to-0 as beyond Congress’s powers under the Fourteenth Amendment and the Commerce Clause. In it the Supreme Court ruled that laws against non-governmental discrimination and violence aren’t valid under the Fourteenth Amendment, and are only valid under the Commerce Clause if they regulate economic activity, such as workplace discrimination.
As I explained in my unpublished letter:
A recent op-ed claimed that Supreme Court Justice Joseph P. Bradley “opposed the abolition of slavery.” (“The Massacre that Emboldened White Supremacists,” Aug. 29).
But a biographical dictionary states that Justice Bradley supported the “Thirteenth Amendment abolishing slavery.” Bradley was appointed in 1870 by President Grant, who hated slavery, and tried to crush the Ku Klux Klan. It is inconceivable that an anti-slavery president would have appointed a pro-slavery Supreme Court justice.
If Bradley had supported slavery, his nomination never would have been approved by the Senate, which had recently approved the Thirteenth, Fourteenth, and Fifteenth Amendments to protect black people’s freedoms.
I never came across anything suggesting that Bradley supported slavery when I researched the Supreme Court of that era in the course of litigating a landmark case, United States v. Morrison (2000).
