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How Federal Judges Use and Abuse the Words of Martin Luther King Jr. in Their Decisions

Republican-appointed judges attempt to lay claim to moral legitimacy by invoking MLK.

A few years ago, I was tasked with researching employment court cases for Congress' Military Leadership Diversity Commission to help come up with suggestions for ways the armed forces could ensure its career paths were truly open to all people.

One case, Christian v. United States (2000), caught my eye in the course of my research. The case involved a claim brought by two white Army officers who had twice been passed over for promotion to colonel and therefore were automatically retired. They alleged that Army policies advantaged minorities to the disadvantage of white officers.  

From the very first line of  Christian, I did a double-take: "This case, and the constitutional claim raised in this case, is not about race."

It's a reverse discrimination claim—it's entirely about race!

But then the second sentence says this:

However, it involves deeply held concerns about creating a society free of the scourge of racial injustice that has, during much of our history, diminished the quality of life for African-Americans as well as other racial, ethnic, or religious minorities.

So it  is about race….

According to the judge, the question was whether the Army's policy "upholds the promise of justice for individuals of all races… forever enshrined in the law of the land by the tears and triumphs of the great civil rights struggles of the past century and a half." Grabbing this torch, the judge asks how it should "determine whether the program at issue is fundamentally just and consistent with our Constitution?" To help him answer the question, he turned to Dr. Martin Luther King Jr.

Here is the quote he used, from King's "Letter from a Birmingham Jail":

An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts the human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority, . . . and ends up relegating persons to the status of things.

Three paragraphs into the decision, it was obvious: the judge was going to strike down the Army's policy and rule in favor of the white plaintiffs. He was going to do it by staking a moral claim on the legacy of Martin Luther King and the civil rights movement.  

As if to drive the stake further into King's heart, he continued: "Dr. King himself repeatedly observed that the moral cause of racial justice cannot be fought by immoral means, and that freedoms of whites and blacks are 'inextricably bound' to one another."

This guy has got to be a Republican, I thought. I looked him up, and sure enough, Loren A. Smith worked in the Reagan administration until the Gipper appointed him to the bench in 1985.

Smith's ludicrous invocation of King made me wonder if other Republican appointees to the federal courts also turned to King to sugarcoat their decisions ruling in favor of whites against minorities. Do Republican invocations always bury King's true goals and legacy? Do Democratic appointees invoke King differently? Could I predict a judge's party by how he or she invoked King?  

With these questions lingering in my mind, I hit Lexis Nexis and Google Scholar. I found a good number of cases over a span of recent decades in which the presiding judge invoked King to explain his or her reasoning or to lay claim to moral legitimacy.[1]

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