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Supreme Court Signals Interest in Confederate Symbols

Aug. 30, 2017, 9:39 PM

By Kimberly Strawbridge Robinson, Bloomberg BNA

The justices of the U.S. Supreme Court signaled Aug. 29 that they may be interested in reviewing the display of controversial Confederate symbols.

The high court asked Mississippi Gov. Dewey Phillip Bryant (R) to respond to a lawsuit challenging the inclusion of the Confederate Battle Flag on the state’s standard.

The request makes it more likely that the court will agree to take up the case — but it is still an uphill battle. The court hears less than 1 percent of the thousands of cases brought to it each year, according to the court’s website.

The request comes amid unrest nationwide over the public display of Confederate symbols. The planned removal of a statue of Confederate General Robert E. Lee was the stated reason for white nationalists’ protests in Charlottesville, Va., Aug. 11 and 12. Those protests led to violent clashes with counterprotesters that resulted in one death, and an uneven response from President Donald Trump.

Stigma Not Enough

Mississippi attorney Carlos Moore sued the governor over Mississippi’s inclusion of the controversial symbol on the state flag. The Mississippi legislature adopted the flag in 1894, according to Moore’s Supreme Court petition.

The repeated exposure to the state’s flag stigmatizes him in violation of the Constitution’s Equal Protection Clause, Moore, an African-American who works for the state, argued to lower courts.

The lower courts, however, said Moore couldn’t bring such a claim in federal courts. To bring equal protection claims, a plaintiff must allege more than that they were exposed to an offensive symbol, the U.S. Court of Appeals for the Fifth Circuit said March 31. A plaintiff must also allege that he or she was “personally subjected to discriminatory treatment,” the Fifth Circuit said.

In June, Moore asked the Supreme Court to weigh in on what he must show before he could pursue his claim.

Bryant waived his right to respond to Moore’s Supreme Court petition shortly after it was filed. Parties on the winning end of lower court rulings often don’t respond to the loser’s request for the Supreme Court to step in.

But the Supreme Court requested that Bryant weigh in anyway.

Bryant’s response is due Sept. 28.

Close Look

The move means that at least one justice is taking a close look at the case. A single justice can initiate a request for a response, but the docket doesn’t reflect which justice or justices wanted to hear more about the issue.

Justice Clarence Thomas, notably, has shown an interest in state displays of symbols associated with racism and slavery.

The conservative justice uncharacteristically sided with his more liberal colleagues in 2015 in allowing the state of Texas to ban Confederate symbols on license plates. And in 2002, Thomas spoke favorably about the constitutionality of Virginia’s law banning cross burning during oral argument. The exchange was especially memorable in light of the fact that Thomas rarely speaks during oral argument sessions.

The case is: Moore v. Bryant, U.S., No. 17-23, response requested 8/29/17.