A message to the Supreme Court: But are any of the Justices listening?

Echo opinion published in The Washington Post by Ruth Marcus

In the American judicial system, the lower-court judges take instruction from the Supreme Court, not the other way around. 

In the case of U.S. District Judge Reggie B. Walton, that’s too bad. Walton, appointed to the local court in the District of Columbia by Ronald Reagan and to the federal bench by George W. Bush, has a message for the justices that is appropriate, respectful — and devastating.

Judge Reggie Walton assumed his position as a United States District Judge for the District of Columbia on October 29, 2001,

His messages, actually, delivered in a speech  about the importance of affirmative action, which the high court, as Walton predicted, is about to dismantle; and about the scourge of gun violence, which, as Walton outlined, has been made all the more intractable by the court’s wrongheaded Second Amendment rulings.

If only the justices had been present to hear it. If only they were open-minded enough to take it in.

The power of Walton’s speech, part of an annual lecture series in honor of the late Judge Thomas A. Flannery, derived from the personal nature of his appeal. 

As he told the audience of lawyers and judges gathered at the federal courthouse in Washington, Walton’s is an American success story — far from inevitable, made possible by the existence of affirmative action.

Walton, now 74 years old, grew up in western Pennsylvania. He was a troublesome teenager, arrested for delinquency three times — twice fairly, Walton confessed — while he was in high school. The son of a steelworker who worked two jobs as a janitor after the mills in town closed, Walton went to college at West Virginia State University, as he told it, for the primary purpose of playing football.

Although he knew no Black lawyers — the only one in the area practiced another town over — Walton became interested in law. “I never saw anybody who looked like me who was using their intellectual capacity to make a living,” he recalled.

But he performed poorly on the LSAT, and that is where affirmative action came into play, in the form of a program by the Council on Legal Education Opportunity held at Howard University Law School, in which law schools agreed to consider admitting those who participated and did well.

“When I think back on that experience, it was the opportunity afforded to me … an affirmative action program, that gave me the opportunity I had,” Walton recalled. “And now that I see affirmative action coming under scrutiny, it concerns me.”

Walton has good reason for concern. The Supreme Court, by the end of its term, is likely to declare an end to affirmative action, overruling cases in which it has allowed colleges and universities to take diversity into account in assembling their student bodies.

“I fear that the Supreme Court, from the oral argument that I heard, may likely conclude that affirmative action is unconstitutional,” Walton said. “And as a result of that, if that occurs, the doors of opportunity for young Black guys like me or young Black women may not be available.”

He continued: “When I hear criticism about affirmative action, I say to myself, ‘Well, I was an affirmative action awardee.’ I’m not apologetic for that, and I’m not ashamed of that.”

Conservative justices, ask yourselves: What if Walton hadn’t been able to take advantage of that opportunity? He has spent a career in public service — as a public defender, federal prosecutor, deputy drug czar and highly regarded judge, now on senior status. Were efforts to assure him that chance really repugnant to the constitutional guarantee of equal protection of the laws, as conservatives claim?

Walton’s comments about gun violence were, if anything, even more impassioned — and even more pointed in terms of the role of the court. 

Furthermore, for Walton, the specter of gun violence has personal resonance — one braided into his identity as a Black man. His grandfather was shot and killed by a White man in Macon, Ga., in 1927 when he failed to make way on the sidewalk. When, as a young assistant U.S. attorney, Walton drove his “nice pretty brand-new black Corvette” home to Pennsylvania to show it to his parents, he was stopped by a pair of state troopers who pointed their guns at his head and demanded, “Whose car is this?” and “How can you afford this car?”

“I’ve experienced, personally, what it is to have a gun pointed at your head, and it’s not a pleasant occasion,” Walton said.

And, as he explained, that risk has been inflamed by the court’s recent action. In 2004, four years before the Supreme Court ruled that the Second Amendment guarantees an individual right to have firearms for self-protection, Walton heard a case raising the issue and came to the opposite conclusion.

But the law is what a majority declares it to be. And, as Walton accurately noted, the court’s rulings on the Second Amendment, especially its decision last year requiring that modern-day gun restrictions have a historical analogue, will make it difficult if not impossible to defend measures to stem gun violence, from keeping guns out of the hands of individuals subject to domestic violence restraining orders to prohibiting those under 21 from purchasing handguns.

"I think it’s going to be hard to conclude that many of the limitations on the right to bear arms are constitutional,” Walton said. “Is that going to make America safer? I predict not.”

As a judge, Walton vowed, “I’ll do the best I can to fulfill what the Supreme Court tells me to do, even though I may … find it detestable that I have to do what the court tells me to do.”

Detestable is a strong word, indeed. But these are scary times, made scarier by a Supreme Court that ought to take heed when a judge such as Reggie B. Walton so powerfully dissents.