Commentary

No, NYT, Republican Justice Bradley Didn't Support Slavery

By Hans Bader | September 17, 2020 | 10:38am EDT
Pictured is the Supreme Court in Washington, D.C. (Photo credit: DANIEL SLIM/AFP via Getty Images)
Pictured is the Supreme Court in Washington, D.C. (Photo credit: DANIEL SLIM/AFP via Getty Images)

A New York Times op-ed on Aug. 29 claimed that Supreme Court Justice Joseph P. Bradley, who was appointed by the staunchly anti-slavery President Ulysses S. Grant, opposed the 13th Amendment.

This is nonsense. A biographical dictionary notes that Justice Bradley supported the "Thirteenth Amendment abolishing slavery."

Not only did he not oppose the 13th Amendment, but he also 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").

It is true that Justice Bradley interpreted the 14th 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 reaffirmed that the 14th 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 13th 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 13th and 14th 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 14th Amendment and the Commerce Clause. In it, the Supreme Court ruled that laws against non-governmental discrimination and violence aren't valid under the 14th Amendment, and are only valid under the Commerce Clause if they regulate economic activity, such as workplace discrimination.

The New York Times op-ed was co-authored by a guy who helped fuel a campus rape frenzy through his slanted writings. To the New York Times, that apparently made him an expert, as opposed to me, a lawyer familiar with the 13th Amendment's legislative history.

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)."

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department.

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