Even When You Were
The late Supreme Court Justice Felix Frankfurter was controversial and many disagree with his positions and opinions. But with respect to getting justice right, even after one has gotten it wrong, his words are not controversial.
Some judges like to quote Justice Felix Frankfurter, as Judge Harry T. Edwards of the United States Court of Appeals for the District of Columbia Circuit did when he changed his mind in 1994 in a libel suit against this newspaper.
“Wisdom too often never comes,” Justice Frankfurter wrote, “and so one ought not to reject it merely because it comes late.”
(“this newspaper” being the New York Time).
The words of Justice Frankfurter became relevant when a Federal Appeals Court changed its mind in an employment discrimination case. Here is the setting.
Last year, the United States Court of Appeals for the 11th Circuit, ruled that there were no racial overtones when a white manager at a Tyson chicken plant in Gadsden, Ala., called adult black men working there “boy.”
“The usages were conversational” and “nonracial in context,” the majority wrote in a 2-to-1 decision that overturned a jury verdict of about $1.4 million in an employment discrimination case brought by a black Tyson employee, John Hithon.
Now anyone who has grown up in the South or last lived in the South knows that is simply not the case. The term “boy” when addressed to an African-American has a specific meaning, and we all know what the meaning is. This is a position upheld by the Supreme Court, overturning an earlier egregious decision.
In 2005, for instance, the appeals court said the meaning of “boy” depended on whether there was an adjective attached.
“The use of ‘boy’ when modified by a racial classification like ‘black’ or ‘white’ is evidence of discriminatory intent,” the court said. But “the use of ‘boy ’alone is not evidence of discrimination.”
The Supreme Court unanimously reversed the 2005 decision the following year. “The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom and historical usage,” the justices said in an unsigned opinion.
So after the appeals courts was asked to reconsider, they the almost unthinkable, the did. And when they did they reached a different conclusion after former Federal Judge U. W. Clemons and others filed briefs asking the court to do so.
On Dec. 16, more than a year after the initial decision, the appeals court reversed course. The new ruling was opaque and grudging, but Mr. Clemon said he welcomed it, particularly since it is very unusual for a federal appeals court panel simply to change its mind. “I don’t recall it ever happening,” said Mr. Clemon, who graduated from law school in 1968.
No, it doesn’t happen often. And it did not happen in this case with good grace, or maybe even with good intentions.
The new decision followed unflattering press coverage of the earlier one and might have been prompted by the possibility of a rebuke from the full 11th Circuit.
But that’s okay, given the Conservative nature of the courts one takes decisions like this and expresses gratitude, not bitterness.