Jurisprudence

A Paragon of Judicial Courage

Judge Damon Keith, who died on Sunday at age 96, never wavered in his staunch support of civil rights.

Judge Damon Keith
Judge Damon Keith
The U.S. Court of Appeals for the 6th Circuit

The United States lost a civil rights icon on Sunday when Judge Damon Keith died at the age of 96. A judicial giant who served on the bench for more than 50 years, Keith adamantly refused to tolerate injustice in any form. His landmark opinions defending the constitutional liberties of unpopular groups provoked ire and, at times, death threats against the judge. But Keith never yielded, facing down opponents as powerful as the president of the United States and as violent as the Ku Klux Klan. He maintained his resolute belief in equality to the very end of his extraordinary career.

Keith was born in Detroit on July 4, 1922, a patriotic coincidence he always relished. He served in a segregated Army unit during World War II, an experience that drove home the evils of American racism. “I served my country,” Keith later said, “but when I returned, I still had to ride on the back of the bus, drink from separate water fountains and use separate bathrooms. I thought, is this what I’ve been fighting for? Have I been laying down my life to come back to this world of Jim Crows and racists?” After attending Howard University School of Law, Keith worked closely with the NAACP and eventually served on the Michigan Civil Rights Commission. In 1967, President Lyndon Johnson appointed him to federal district court in Detroit; 10 years later, President Jimmy Carter elevated him to the U.S. Court of Appeals for the 6th Circuit.

As soon as Keith joined the bench, he faced a series of hugely controversial disputes over civil rights. In 1970, he ordered the desegregation of public schools in Pontiac, Michigan, prompting serious threats against his life. A year later, the KKK firebombed 10 Pontiac school buses. (Keith never considered backing down, explaining: “I don’t scare easily.”) In 1971, he ruled that the city of Hamtramck’s “urban renewal program”—which mostly entailed demolishing black people’s homes—constituted unlawful housing discrimination and ordered the homes rebuilt. That same year, Keith halted the Nixon administration’s warrantless wiretapping program. President Richard Nixon sued Keith in an effort to maintain the practice, but the Supreme Court unanimously sided with Keith, holding that Nixon had violated the Fourth Amendment.

These decisions alone would’ve been enough to cement the judge’s legacy. But on the 6th Circuit, he continued to field contentious disputes over civil rights. In 2002, he wrote the decision for the court in Detroit Free Press v. Ashcroft, a challenge to the Bush administration’s efforts to close off post-9/11 deportation hearings to the public and press. Keith ruled that the First Amendment barred the government from holding secret deportation hearings. It was in this opinion that Keith coined his famous phrase “democracies die behind closed doors.” The passage in which that aphorism appears is worth quoting in full. Explaining that a free press is a vital safeguard of immigrants’ rights, Keith wrote:

Today, the Executive Branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny. Against non-citizens, it seeks the power to secretly deport [immigrants] … The Executive Branch seeks to uproot people’s lives, outside the public eye, and behind a closed door. Democracies die behind closed doors. The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment … protected the people against secret government.

The Bush administration declined to appeal Keith’s decision to the Supreme Court.

Even in his mid-90s, Keith never wavered from his staunch defense of the Constitution. In October 2016, at age 94, he wrote an impassioned and historic dissent from a 6th Circuit decision allowing Ohio to curtail black voters’ access to the ballot. Keith, in protest, included a gallery of “martyr of the struggle for equality” in his opinion. He explained:

The utter brutality of white supremacy in its efforts to disenfranchise persons of color is the foundation for the tragedy that is the majority’s effort to roll back the progress of history. I will not forget. I cannot forget—indeed America cannot forget—the pain, suffering, and sorrow of those who died for equal protection and for this precious right to vote. I add the following publicly available historical statements to humanize the struggle for the right to be equal participants in the democratic process.

Later, Keith told me he “wanted to dramatize the racist attitude of the majority.” He made no effort to conceal his disdain for the conservative judges who turned a blind eye to Ohio’s racist assault on the franchise.

Today, judges like Keith are in short supply. In just two years, President Donald Trump and Senate Republicans have stacked the judiciary with judges who are overwhelmingly straight, white, and male. These individuals were chosen because of their past work defending the powerful and harming the powerless. Many spent their careers helping to abridge minority voting rights and now refuse to say if Brown v. Board of Education was correctly decided. Some promoted racist conspiracy theories and defended states’ rights to disenfranchise black voters. These judges are anathema to Keith’s enduring vision of constitutional equality. His death is a great loss for the country—and a reminder of what judicial courage looks like at a time when it is in increasingly short supply.