Page 20 - NYLS Magazine • 2014 • Vol. 33, No. 1

heodore Eisenberg gives his presentation for the panel on Civil Rights Enforcement in the Federal Courts.
Bradley’s remarks and to show a profound

misunderstanding of the function and
necessity of the Voting Rights Act, which

is hardly a perpetuation of any “racial
entitlement” but a limited method of

ensuring that all American citizens are
in fact freely and equally able to vote. In

a discussion with law students shortly
ater the case came down, the Wall Street

Journal reported that Justice Scalia

essentially repeated his view, stating
that the landmark legislation was an

“embedded” form of “racial preferment.”

Professor Eisenberg criticized Justice

Scalia, for his comments in 2009
during an oral argument before the

states and municipalities with histories
“he voice of Justice [ Joseph P.] Bradley court in which Troy Anthony Davis, a
of race-based voter discrimination seek in 1883 is the voice of Scalia in 2013,” black inmate on Georgia’s death row,

advance federal approval of proposed said Professor Purcell, a former board challenged his conviction in light of
changes in local election procedures.
member of the American Society for seven prosecution witnesses recanting

He was unsuccessful. In a 5-4 vote last Legal History, who then put it into their testimony. According to the
June, the high court struck down the context. In a consolidation of civil rights transcript, Justice Scalia said, “his court

coverage formula laid out in Section 4(b) cases in 1883, the Supreme Court held has never held that the Constitution
of the act, essentially rendering Section 5 that racial discrimination by private forbids the execution of a convicted

useless. he vote indicated a divide “along individuals and organizations was
defendant who has had a full and
ideological lines [with] the two sides not unconstitutional. Writing for the fair trial but is later able to convince

[drawing] sharply diferent lessons from majority, Justice Bradley said, “When a a habeas court that he is ‘actually’
the history of the civil rights movement,” man has emerged from slavery, and, by the innocent.’ Quite to the contrary, we have

according to a New York Times account.
aid of beneicent legislation, has shaken repeatedly let that question unresolved,
of the inseparable concomitants of that while expressing considerable doubt that

“We all have a responsibility to engage, in state, there must be some stage in the any claim based on ‘actual innocence’ is
good times and bad,” said Mr. Adegbile. progress of his elevation when he takes constitutionally cognizable.”

“Which is why I come from losing a case the rank of a mere citizen and ceases to be
[in the Supreme Court] to working on the special favorite of the laws.”
Davis was executed by lethal injection in

new law [in the Senate].”
September 2011.
Professor Purcell said that Justice Scalia’s
He added, “he preamble to the “I don’t think you can forecast that kind
remarks during oral arguments in Shelby,
Constitution states the national when the Justice labeled the Voting of extremism,” said Professor Eisenberg.
purpose: to ‘form a more perfect union.’ “You would think if a judge got one thing
Rights Act of 1965 a “perpetuation
his is not a statement of the ideal, but of racial entitlement,” seemed to echo
right, it would be, ‘Of course you can’t
a statement of aspiration.”
execute innocent people.’”

Two panelists—Edward Purcell Jr., the

Joseph Solomon Distinguished Professor
of Law at NYLS, and Professor heodore

Eisenberg of Cornell Law School—took
issue with the Supreme Court’s recent

civil rights rulings.

Professor Purcell said the court is

“ideologically hostile to civil rights
claims,” and expressed particular dismay

with its longest serving current member,
Justice Antonin Scalia, appointed by

President Ronald Reagan in 1986.

Panelists Stephen Bright, Debo Adegbile, Steven Shapiro, and Elise Boddie discuss the road forward in pursuit of equality.

18 New York Law schooL magaziNe • 2014 • VOL. 33, NO. 1