On any given day in our fair city, you can walk past the Justice Juanita Kidd Stout Center for Criminal Justice on Filbert Street, and mouth a silent thank you to its namesake, the former State Supreme Court justice who was the commonwealth’s first African American judge.
Or you can stroll past the City Hall statue of Octavius Catto, and express your gratitude to the civil rights activist who was murdered on election day in 1871, all of one year after the adoption of the 15th Amendment to the Constitution guaranteeing voting rights to Black citizens.
Or you can get on the SEPTA Broad Street Line at Temple University’s Cecil B. Moore subway stop and pause to consider all that the civil rights leader and former councilman did to advance the cause of justice. (“After nine years in the Marine Corps, I don’t intend to take another order from any son of a bitch that walks,” Moore once said.)
But there is one name that has, puzzlingly, been lost to history in this historic city: Federal judge A. Leon Higginbotham Jr. That’s why we’re announcing this week our partnership with Jane Golden’s Mural Arts Philadelphia and the Penn Carey Law School on a mural at 46th and Chestnut, along with an ongoing content series, that seeks to reintroduce the moral teachings of Higginbotham to Philadelphians, and, hopefully, the nation. (More info on the event here.)
We find ourselves in a crisis of values these days, and there were few more robust voices on the national stage for doing what is just and right than Higginbotham. He was nothing short of the Zelig of the 20th century; at virtually every national moral inflection point, there he was, a hulking 6’5” giant with a booming voice — they had to put double doors on his chambers at the federal courthouse! — continually pushing his country and his adopted hometown to live up to their respective creeds and to err on the side of justice and compassion.
A Zelig of the 20th century
There he was, the scion of a Trenton, New Jersey laborer and a domestic maid, integrating Antioch College — alongside a young student named Coretta Scott — after leaving Purdue University because its president insisted on housing him and 11 other Black students in an unheated attic.
There he was, appointed by President Kennedy to be the first African American to serve on a federal regulatory agency. There he was, advising President Johnson on urban unrest in the Sixties.
There he was, penning In The Matter of Color, the definitive scholarly work that, decades before anyone talked about “systemic racism,” is a type of meticulously footnoted, case-by-case proof of just how embedded race and racism is in American law.
There he was, pushed by then-Congressman (and future mayor) Bill Green to run for mayor against Frank Rizzo in 1971, an invitation he resisted. “He was an activist for civil rights as well as a well-educated gentleman who was as respected in the street as he was at Penn and Harvard,” Green later told the Inquirer. “He had both a sense of justice and a sense of history. He was highly qualified and honorably motivated. He would’ve drawn voters across the city. I think he would have won. Stylistically, he was a precursor to Obama.”
“I suggest, Justice Thomas, that you should ask yourself every day what would have happened to you if there had never been a Charles Hamilton Houston, a William Henry Hastie, a Thurgood Marshall, and that small cadre of other lawyers associated with them, who laid the groundwork for success in the 20th-century racial civil rights cases,” Higginbotham wrote.
There he was — get this — penning the constitution of a newly free South Africa when his friend and fellow moralist Nelson Mandela ascended to the country’s presidency.
There he was, widely considered a shoo-in for a Supreme Court seat, should Michael Dukakis defeat George Herbert Walker Bush in the 1988 presidential election. There he was, penning a brilliant and controversial open letter to Clarence Thomas upon the latter’s confirmation to the Supreme Court.
There he was, receiving the Presidential Medal of Freedom from President Bill Clinton in 1995, the nation’s highest civilian honor. There he was, just before his death in 1998, testifying at the House impeachment hearings of Clinton, telling the tribunal that they didn’t need quotes from Madison, Mason or Ben Franklin so much as to hear from “a person named Luther Standing Bear of the Lakota Tribe, who said, ‘Thought comes before speech.’” (Check out the testimony at the 3:54 mark to see Higginbotham running intellectual circles around hapless Republican Congressman Bill Barr.)
Higginbotham excoriates Justice Thomas
I first became aware of Higginbotham when he penned that letter to Thomas in the early ’90s. I was a grad student at NYU and received in the mail a clipping of it from my dad, a Harry Truman Democrat who, I would come to realize, shared with Higginbotham a disdain for bullies and a no-nonsense rectitude. He’d circled the byline and scribbled in the margin: The conscience of the country.
Thomas, recently in the news for continuing an assault on the expansion of human rights, had criticized civil rights leaders who “bitch, bitch, bitch, moan and moan, whine and whine.” Higginbotham’s missive — complete with 85 footnotes — was a type of history lesson in response and a call for the young justice to “recognize what James Baldwin called the ‘force of history’ within you.” The letter went viral, before going viral was even a thing.
“I suggest, Justice Thomas, that you should ask yourself every day what would have happened to you if there had never been a Charles Hamilton Houston, a William Henry Hastie, a Thurgood Marshall, and that small cadre of other lawyers associated with them, who laid the groundwork for success in the 20th-century racial civil rights cases,” he wrote. “If there had never been an effective NAACP, isn’t it highly probable that you might still be in Pin Point, Ga., working as a laborer as some of your relatives did for decades? The philosophy of civil rights protest evolved out of the fact that Black people were forced to confront this country’s racist institutions.”
Keep in mind: This was a recently retired federal judge, swatting down a Supreme Court justice. Thomas was reportedly gobsmacked; some say his embarrassing silence for decades on the bench had something to do with Higginbotham’s evisceration of him. I’ve spent a good amount of time reading Higginbotham’s dense prose and watching his speeches — he was an inspiring orator — and few were more moving than his 1994 Hastings College of Law address that analyzes Thomas’ first 18 months on the Court.
“He was an activist for civil rights as well as a well-educated gentleman who was as respected in the street as he was at Penn and Harvard,” former Mayor Bill Green later told the Inquirer. “He had both a sense of justice and a sense of history.”
In it, he excoriates Thomas for his opinions that turn back the clock on justice — like the dissent in Hudson v. McMillian, the case of a Black prisoner abused and beaten by prison guards. “It took no great courage for seven justices to say that, in a civilized society, you cannot allow people to be beaten and brutalized,” Higginbotham said. “One person dissented, Justice Clarence Thomas. And when that opinion came down, The New York Times called him ‘the youngest, cruelest justice.’”
This was classic Higginbotham; the law, to him, wasn’t some bloodless rule book. It was, rather, an extension of our values, a way for society to proclaim what matters in life. Yes, he was a brilliant scholar and orator, but he was also all heart. I recommend you watch the whole speech — you’ll hear a hilarious tangent on what it meant for Black fans when, one day, Willie Mays caught a Jackie Robinson line drive in centerfield, and you’ll witness the judge’s bemused compassion for the security guard in Philly’s federal courthouse who, on Higginbotham’s first day on the job, flagged the judge for parking in a spot reserved for…judges.
If you don’t have an hour to spare, just check out the last 10 minutes or so, when Higginbotham is moved to tears when comparing Thomas with his mentor, Thurgood Marshall, whom Thomas had criticized for once saying that American greatness ought not to be centered in its beginnings, but in its penchant for evolution: “It was the 13th, the 14th and the 15th Amendment,” Higginbotham reiterated, on behalf of Marshall. “It was the 19th Amendment that made America great.”
Higginbotham’s view — that the singular genius of this vastly flawed experiment is that it’s always in a state of becoming — seems sadly dated today, as Thomas’ fixed-in-time perspective seems on the upswing. But right when you’re feeling down about that, just check out ol’ Higginbotham, and it’s a reminder of some unique, and one hopes timeless, American traits.
He spoke truth to power even after he became powerful; he aligned heart and head, and he was unafraid to make moral pronouncements, because he knew that that’s what the law really is: A made-up system of values we agree on in order to all live together in harmony. Don’t these times cry out for just that type of audacious clarity? Join us Friday at 10:30am at 46th and Chestnut to begin resurrecting a way to look at leadership, race and the law … that might just help us find our way today.
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MOST POPULAR ON THE CITIZEN RIGHT NOWJudge Higginbotham receives his Medal of Freedom, September 1995.