Vol. 10 No. 1 (January 2000) pp. 1-3.

CONTEMPT OF COURT: THE TURN-OF-THE-CENTURY LYNCHING THAT LAUNCHED A HUNDRED YEARS OF FEDERALISM by Mark Curriden and Leroy Phillips, Jr. New York: Faber and Faber, 1999. 394 pp. Cloth $30.00.

Reviewed by Daniel Hoffman, Department of Social Sciences, Johnson C. Smith University.

This book, authored by a journalist and a trial attorney, is a well written, gripping, and disturbing narration of a little-known episode from the years 1906-1909. The narrative begins with a hearing in the chambers of Justice Harlan, in which two African American lawyers seek to obtain Supreme Court review of their client's rape conviction in Chattanooga, Tennessee. The hearing is unprecedented, first, in that the Court has shown no propensity to intervene in State criminal cases, and, second, in that black lawyers have never before dared to appear in this forum save under the auspices of white co-counsel. Although the State proceedings were in modern terms mockery of due process, the prospects for success are slim indeed because none of the procedural rights in the Fourth, Fifth and Sixth
Amendments has yet been held applicable to State court proceedings.


The story then flashes back to a 150 page account of the rape of Nevada Taylor. It reports the hysterical search for the unknown perpetrator, the arrest, trial and conviction of Ed Johnson, who was very probably innocent, in a lynch-mob atmosphere fomented and sustained by local newspapers, and the desperate effort of two black attorneys, Noah Parden and Styles Hutchins, to pursue a federal appeal after his original counsel abandon him. The circuit court denied their habeas petition but stayed the execution for ten days to permit Supreme Court review.


When the Supreme Court agreed to hear the case and issued a further stay of execution, a third mob assault on the jail ensued with the apparent connivance of a sheriff bent on reelection. This time, Johnson was captured and lynched. The remainder of the narrative traces the legal system's response when the blatant defiance of the Court's decree prompted a three-year federal investigation leading to the only contempt trial in the Supreme Court's history. The trial resulted in sentences of 60-90 days in jail for six of the nine defendants, including Sheriff Joseph Shipp, a deputy sheriff and four of the rioters. After serving his sentence, Shipp returned to a hero's welcome in Chattanooga, where a monument was erected in his honor. The black lawyers, in contrast, could no longer find clients in Chattanooga
and were obliged to leave the area.

The authors easily persuade us to remember Ed Johnson and his attorneys for their courage and resourcefulness. They also persuade us to respect the Court, and especially Justice Harlan, for their determination to stand up for the rule of law at the very time when President Theodore Roosevelt was welcoming Joseph Shipp, his political supporter, to a White House gathering. They are less successful, however, in persuading this reader that the

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Supreme Court's action "launched a hundred years of federalism." The argument for this claim is essentially confined to a brief Epilogue in which the authors make a series of assertions. (1). "[T]he Supreme Court's actions against Shipp and his deputies obviously had an impact across the country. In 1909, the year when the justices found Shipp guilty and sent him to jail, the number of lynchings in the United States dropped from ninety-seventh eighty-two. This number would continue to decline over the next decade" (p. 339). (2.) Equally important, the number of attempted lynchings that were thwarted by local law enforcement significantly increased in the years following the Shipp case. Tuskegee University ... reported that only six people were saved from the mob by sheriffs and police in 1906. By contrast, authorities prevented nineteen lynchings in 1910, and the number continued to grow annually throughout the next decade" (p. 339). (3.) "In decision after
decision spread out over fifty years, the justices have endorsed and implemented Parden's original arguments into the law of the land" (p. 343). (4.) "It marks the first glimpse of the federal-court system's exercising its power to protect an individual's rights from wayward state authorities" (p. 347).

The authors also candidly acknowledge, without assessing the implications, that (5.) "The number of state death-penalty verdicts the [Fuller] Court overturned during its two decades can be counted on one hand..." (p. 347), (6.) "the contempt proceeding against Shipp was the only proactive step the U.S. Supreme Court has ever taken to combat mob rule directly and demand that the public respect its authority and the authority of the written law" (p. 348), and (7) "the Supreme Court's actions received mixed reviews across the country. State judges, prosecutors, and sheriffs cursed the Court for intruding into traditionally state matters. Black
leaders praised the decision, hoping it would reduce the number of lynchings encouraged by local law enforcement. Lawyers believed the Court's action was a first step in providing greater constitutional protections to minorities and people charged with crimes. But back in Tennessee, the public and the newspapers remained defiantly supportive of Sheriff Shipp" (p. 335).

Readers of this review will be aware of the difficulties inherent in demonstrating rigorously the impact of a single court decision. By social scientific standards, Curriden and Phillips have made no serious effort to do so in their study. With regard to the first four assertions itemized above, the following comments seem apt. First, the book's Appendix 1 shows that the slow but steady decline in lynchings lasted only until 1913, fluctuating back as high as 83 in 1919, with a sharper if still unsteady decline after 1923. Second, no specific data on lynchings prevented are reported from the Tuskegee records. Third, eight such rights-incorporating decisions are mentioned, the earliest of which occurred in 1923, the next in 1932, and the remainder after World War II. This scarcely establishes the launching of a
trend in 1909. Fourth, the subsequent development of this interventionist practice and its link, if any, to the Johnson and Shipp litigation are not detailed.

Insofar as impact may be evidenced by subsequent citation of a case as precedent, my own cursory inquiry indicates that JOHNSON v. TENNESSEE (1909)
(the habeas corpus case) and U. S. v. SHIPP (1909) (the contempt case) have been cited sparingly and in mostly marginal ways in federal cases. This finding is hardly

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surprising, in that the legal questions actually decided by the Court in JOHNSON and SHIPP were narrow, procedural ones. Though referred to in such well-known and relevant contexts as the 1915 Leo Frank case, the 1932 Scottsboro case and the 1964 contempt proceedings against Mississippi Governor Ross Barnett, the Johnson and Shipp precedents were far from dispositive in any of the above cases. Most of the citations, in fact, have nothing to do with core issues of civil rights or federalism.

The key constitutional question of "federalism"-the application of the Bill of Rights and the Fourteenth Amendment to State criminal trials--was bypassed when the Johnson appeal was dismissed ("abated") because of the appellant's death and when the Court held in SHIPP that its own acceptance of the habeas appeal was sufficient to make its stay binding on the defendants, whether or not the federal courts had jurisdiction or the habeas action was ultimately meritorious. The authors do not indicate how frequently or how successfully this same habeas or stay strategy was employed in subsequent cases. The lower court citations I inspected certainly do not reveal a substantial increase in federal interventions in cases resembling Johnson's. The quotations numbered 5 and 6 above do, however, remind us that the pre-Warren Court and the lower courts of that era were none too vigorous in enforcing civil rights or due process claims.

If, then, the Court's actions demonstrably "launched 100 years of federalism," this would be evidenced not so much from the direct federal enforcement of new legal doctrine as from a changed climate of opinion and a deterrent effect on Southern officials and citizens. Such an impact remains to be convincingly demonstrated, and quotation 7 above makes one skeptical that it in fact occurred. The story told by Curriden and Phillips is a gripping but depressing reminder of the plight of the freed slaves after the end of Reconstruction, the hysterical fear and hatred inspired by stereotypes of black sexuality, and the shocking, complacent openness of personal and institutional racism. It also reminds us of other cases more often studied in legal history, where bold defenses of fundamental rights are offered to a court, only to be disdainfully rejected and the advocate condignly punished. Although the advent and elaboration of such arguments in the discourse is unquestionably a sign of progress, the lawyerly penchant for celebrating such tragic moments as triumphs of "the rule of law" seems downright mystifying.

CASE REFERENCES:

JOHNSON v. TENNESSEE, 214 U.S. 485 (1909).

UNITED STATES v. SHIPP, 214 U.S. 386 (1909).