Kenneth Mack

The economic fallout is here. As a result of the coronavirus pandemic, Americans are losing their jobs, watching small businesses around them close up shop, and fretting about their retirement savings. It’s a bleak scenario that has lawmakers scrambling to soften the blow: Yesterday, Congress passed a relief package that temporarily mandates paid sick and family leave for some workers, expands unemployment insurance, and increases funding for food stamps and Medicaid—and that could be only the beginning of the government’s response...More recently, the same dynamic played out with the Affordable Care Act. Though the law was fairly unpopular when it first passed, it drew more support from Americans over time. In fact, while the GOP ran on repealing the law for the better part of a decade after its passage in 2010, Republicans quickly changed their message from “repeal” to “repeal and replace” when it became clear that most Americans didn’t want the law to go away—a tacit acknowledgement that the country would not be returning to a pre-ACA era. Even when Republicans controlled the White House and both chambers of Congress at the start of Donald Trump’s presidency, they repeatedly failed to overturn the ACA—though the administration has undermined the law in other ways.“The attempt to delegitimize the Affordable Care Act is to delegitimize the idea that government can actually do things to help the lives of citizens,” Kenneth W. Mack, a Harvard University law professor, told me.

A book review by Kenneth Mack; Clifford Thompson’s “What It Is: Race, Family, and One Thinking Black Man’s Blues” is a story of innocence betrayed. Thompson is an award-winning essayist, a novelist and an author of a previous literary memoir of growing up in the post-civil-rights era. He describes himself, with a bit of irony, as “the only nonracist black person in America,” meaning that he tries to bring very few preconceptions to his encounters with individual white people. Thompson also celebrates what he calls his rootedness — his childhood in a Washington neighborhood where everyone he knew or encountered was black. Yet in college he suddenly felt the pull of individualism, discovering that he was entirely comfortable in white social settings. He eventually married a “slender and blond” woman and began raising biracial children — heresy in the eyes of some, such as a black woman on the New York subway who gives him a withering look of betrayal. When a white neighbor reports him to the police as a possible intruder, the officers don’t mistreat him, as one might expect. Instead, they laugh it off after seeing him with his white spouse. “Things that make other people angry merely cause me to marvel,” he reports.

Charles Hamilton Houston ’1922 S.J.D. ’1923 was an inspiring figure in American legal history and a sometimes controversial one as well. Both sides of his legacy were examined in a lively lecture and Q&A discussion at Harvard Law School this week, to coincide with the 124th anniversary of his birth on September 3, 1895. There was no disputing Houston’s status as a one of the key champions of American racial justice in the 20th century. In his opening talk, Professor Randall Kennedy outlined the obstacles Houston overcame as an African American lawyer in the early 20th century, and the accomplishments that ultimately led to the Brown v. Board of Education decision (which came four years after Houston’s death). Professor Kenneth Mack ’91 also celebrated Houston’s achievements, but pointed out decisions Houston made that reasonable minds might take issue with.

A book review by Ken Mack: In early 1946, many white Americans were jolted out of their complacency about race relations by a horrific instance of police violence against a demobilized black soldier. In February, just hours after his discharge, Sgt. Isaac Woodard Jr. broke Southern racial etiquette aboard a Greyhound bus in South Carolina by getting into a dispute with the driver and then failing to address the local police chief, whom the driver had summoned, as “sir.” The chief, Lynwood Shull, beat the decorated war veteran unconscious with a blackjack, driving the butt end of it into each of Woodard’s eye sockets and permanently blinding him. Woodard was fined $50, ostensibly for drunk and disorderly conduct, but managed to make it to New York City, where the NAACP publicized his story. Orson Welles featured Woodard’s heart-rending plight on his national radio program. Woody Guthrie composed a song titled “The Blinding of Isaac Woodard.” Civil rights activists used Woodard’s blinding to push President Harry Truman to embark on his unprecedentedly frank speeches and actions in favor of black equality. Nearly seven decades later, civil rights leader Julian Bond would still be moved to tears by his childhood recollections of Woodard’s blinding. In “Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring,” federal judge Richard Gergel presents a deeply researched account of Woodard’s tragic story and weaves it into a larger narrative.

A review by Kenneth Mack. One of the most visible faces to emerge from the protests in Ferguson, Mo., and the Black Lives Matter movement they sparked is DeRay Mckesson. Days after the protests began in August 2014, Mckesson, then a 29-year-old school administrator in Minneapolis, began driving to Ferguson to join in. He live-tweeted his journey to Missouri and posted it on Facebook, at one point asking for a couch to sleep on when he arrived. Once there, he and other participants took to Twitter as an organizing tool and an alternative to the mainstream media, which, they thought, misrepresented the protests as violent...His book “On the Other Side of Freedom” is, in part, Mckesson’s response to the charge that he has grabbed too much of the limelight and is unrepresentative of the dispersed networks of organizers, online activists and street protesters who compose this difficult-to-define movement. It is a combination of memoir, self-justification and inspirational guide to imagining a different world of racial politics and criminal justice.

By the time the US supreme court banned the death penalty in cases of adult rape, in 1977, Thurgood Marshall had been a justice on the court for 10 years. He wrote a brief concurrence in the case, Coker v Georgia, citing his opposition to the death penalty, which then as now disproportionately targeted African American men...“The places he was going were places where there weren’t any other lawyers who were going to do this work,” said Kenneth W Mack, a Harvard Law School professor who wrote Representing the Race: the Creation of the Civil Rights Lawyer. “They were also places where almost nobody had ever seen a black lawyer before. And he had to do things like challenge the local practices of segregation, come into a courtroom, call white people as witnesses, cross-examine them."

It felt like a family reunion — with 600 relatives. That many friends, former students, colleagues, and well-wishers gathered Monday in a joyful celebration of the life and career of Harvard Law Professor Charles Ogletree, advocate for Civil Rights, author of books on race and justice, and mentor to former President Barack Obama and first lady Michelle Obama...And when John Manning, the Morgan and Helen Chu Dean and Professor of Law at HLS, announced that a group of Ogletree’s friends had established an endowed professorship in his honor, the Charles J. Ogletree Jr. Chair in Race and Criminal Justice, the news brought down the house...The chair was made possible through the generosity of a group of Ogletree’s close friends, said David Wilkins, Lester Kissel Professor of Law. “When the history of Harvard Law School in the 20th century is written, Charles Ogletree’s name will be among the first ones mentioned,” said Wilkins...The panelists told stories to “bring home the Tree-ness of Tree,” as Randall Kennedy, Michael R. Klein Professor of Law, explained...Tomiko Brown-Nagin, Daniel P.S. Paul Professor of Constitutional Law, said, “Throughout his career, Ogletree has embodied law in the service of society, just the same as other great beacons of the American legal profession, men and women like Thurgood Marshall, Constance Baker Motley, and Charles Hamilton Houston.”...Another frequent participant was Obama classmate Kenneth Mack ’91, the Lawrence D. Biele Professor of Law. Mack said he learned about Houston in a Saturday School class. It was a time, he added, when few people knew about the lawyer whom Ogletree deemed one of the 20th century’s greatest legal minds and Civil Rights lawyers.

Thurgood Marshall is revered as a titan of the U.S. Civil Rights Movement, the architect of the landmark court case that ended legal segregation in America’s public schools, and the first African-American Supreme Court justice. Yet for five of his former law clerks gathered Wednesday at Harvard Law School (HLS), he was more than that. For Mark Tushnet, William Nelson Cromwell Professor of Law, Marshall was a messenger of hope and courage to African-Americans who endured the injustices of the Jim Crow South...For Randall Kennedy, Michael R. Klein Professor of Law, who clerked for Marshall in the ’80s, the associate justice was a source of pride, lifting the spirits and the consciousness of black Americans who were treated as second-class citizens...For Martha Minow, former dean of Harvard Law School, Carter Professor of General Jurisprudence, and University Distinguished Service Professor, who also clerked for Marshall, he was the embodiment of a deep commitment to social justice and faith in the power of the rule of law to bring equal rights to all eventually...The panel was moderated by Tomiko Brown-Nagin, Daniel P.S. Paul Professor of Constitutional Law, director of the Charles Hamilton Houston Institute for Race & Justice, and professor of history in the Faculty of Arts and Sciences, and Kenneth Mack, the Lawrence D. Biele Professor of Law...“He was a formidable person in all respects,” recalled another former clerk, William Fisher, WilmerHale Professor of Intellectual Property Law and faculty director of the Berkman Klein Center for Internet & Society...Carol Steiker, Henry J. Friendly Professor of Law and Special Adviser for Public Service, said she developed a lifelong interest in death penalty law during her clerkship with Marshall.

In this, the summer of our discontent, many college presidents are breathing a sigh of relief that they made it through a politically fraught spring without their campuses erupting...Law deans, in sharp contrast, have reason to be cheery. Their campuses have been largely exempt from ugly free-speech incidents like these...There may be a reason why law students haven't resorted to the extreme tactics we've seen on college campuses: their training. Law school conditions you to know the difference between righteousness and self-righteousness...The rituals of respect shown inside and outside the courtroom come from this training. Those rituals are so powerful that they can trump even the deepest divides. As Kenneth Mack recounts in his book Representing the Race: The Creation of the Civil Rights Lawyer, Thurgood Marshall was able to do things in court that a black man could never do in any other forum, like subjecting a white woman to cross-examination.

...Federalism is part of our government’s design — a vertical sharing of power between the national and state governments. Our Constitution outlines a separation of powers between the federal government’s three branches. The 10th Amendment holds onto the remaining balance of power for the states, which is often referred to as states’ rights. With the national government now in a Republican grip and President Trump rolling out executive orders, a conversation has begun about what a progressive federalism makeover might look like. Federalism — a vertical, ambiguous division of power — doesn’t have a particular political valence, says Kenneth Mack, a legal historian at Harvard Law School.

...Politico Magazine asked historians to identify which moments in history most resemble this one, and what those moments can teach us about the presidency and the country today...Kenneth W. Mack, professor of law and affiliate professor of history at Harvard University...It is perilous, in the extreme, to compare our present to any past moment. But that has not stopped many commentators, and our new president himself, from invoking the inauguration of Andrew Jackson as historical precedent. There are real reasons for this. Jackson is, depending whom you ask, either our first populist president or a border ruffian who left us the Trail of Tears and a financial crisis that bankrupted ordinary Americans. He was, of course, both. Less prominent has been the comparison between Donald Trump and Andrew Johnson, the first president to be impeached in the House. Both of these comparisons, however, are difficult.

Around noon on Friday, the presidency of Barack Obama will officially be history, and for months the news media has been awash in considerations of the first African-American president’s legacy. But there’s one aspect of his record that has received less attention: his legacy as a historian...Kenneth Mack, a historian at Harvard Law School who has known Mr. Obama since they were classmates there, said that he was “the first president who has really been able to wrap the history of the civil rights movement into the fabric of American history,” while also pointedly hailing other marginalized groups’ push for inclusion in “We the people.” “It’s not just about commemorating the heroes of the past,” Mr. Mack said, “but also things Americans disagreed about, and still disagree about.”