John Payton

  • March 25, 2012
    Guest Post

    By Theodore M. Shaw, Professor of Professional Practice at Columbia Law School; “Of Counsel” to Fulbright & Jaworski, LLP; and an American Constitution Society Board Member. He was an attorney at  the NAACP Legal Defense Fund for twenty-three years and was Director-Counsel and President from 2004 until 2008.


    John Payton, the sixth Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Inc., died on March 22, 2012, after a brief illness, at the age of sixty-five. John was one of the most formidable advocates of his generation, and he litigated and argued some of the most important civil rights cases of his time. His legal career spanned private practice, governmental service, and public interest. He led the litigation department of Wilmer, Cutler & Pickering (now Wilmer, Hale), served as corporation counsel for the District of Columbia, and led the NAACP Legal Defense Fund. Among the Supreme Court cases he litigated were NAACP v. Claiborne Hardware, in which he won a decision in the U.S. Supreme Court overturning a monetary judgment against the organization under Mississippi’s secondary boycott law; City of Richmond v. J.A. Croson Co., in which he ably, albeit unsuccessfully, defended a minority contracting municipal ordinance; and perhaps most notably, two cases in which he defended the University of Michigan’s pursuit of diversity in admissions, Gratz v. Bollinger, and Grutter v. Bollinger. Most recently, in 2010, John successfully argued and won Williams v. City of Chicago,an employment discrimination case against the city’s fire department. Under his leadership LDF won five Supreme Court cases, including a successful defense of the recently extended Voting Rights Act.

    I had the privilege of knowing John Payton for almost thirty years. Among the most significant matters on which we collaborated were the two Michigan cases. It is said that success has many parents, while failure is an orphan. There were many who were responsible for the 2003 landmark affirmative action cases that saved diversity in higher education, thereby keeping the doors open to selective colleges, universities, graduate and professional schools. John litigated both cases in the trial courts, in the court of appeals, and in the Supreme Court. He argued Gratz, and his work was essential to the victory in Grutter. I was deeply involved in both cases, and while the Legal Defense Fund represented intervening black and Latino students in Gratz and filed an amicus brief in Grutter, the posture of “reverse discrimination” cases excludes or marginalizes the voices of those who have the most at stake -- African Americans and Latinos. Even as John represented the institutional interests of the University of Michigan, it made a difference to black and brown students, and people across the Nation, that his voice, eloquent, forceful, and passionate, was heard in oral arguments before the Court. And so it was in all of the civil rights cases John argued. His was a passionate voice for racial and social justice. But even in the “orphan” cases – which for John were few - John’s work and his voice were no less forceful, excellent, and passionate. When the Supreme Court struck down Richmond, Virginia’s minority contracting program in Crosonby a narrow 5-4 vote, it was not because John Payton failed his client. He had done the best that could be done, and a Supreme Court increasingly hostile to programs and efforts specifically designed to include African Americans and others who had been historically excluded from opportunity was on its way to becoming a forum in which they were unlikely to win. Yet John, in the aftermath of Croson, tirelessly traveled the Country, meeting with attorneys in the public and private sectors in an effort to properly craft contracting programs and to ameliorate the effects of the decision. John did not accept defeat. He simply went back to work.

  • March 23, 2012

    by Nicole Flatow

    The country lost a civil rights giant, with the passing of president and director-counsel of the NAACP Legal Defense and Education Fund, John A. Payton. He died suddenly on Thursday at Johns Hopkins University Hospital after a brief illness, The Root reports.

    Payton led LDF in several major Supreme Court victories, including Northwest Austin Municipal Utility District v. Holder, which rejected a challenge to the constitutionality of a core provision of the Voting Rights Act of 1965, and Lewis v. City of Chicago, a major employment discrimination victory, according to a statement from LDF.

    The statement adds:

    Widely considered one of the country's most skilled members of the Supreme Court bar, John Payton's enduring legacy will be his commitment to a principle articulated by LDF's founder, Charles Hamilton Houston. "What I am more concerned about," Houston said, "is that the Negro shall not be content simply with demanding an equal share in the existing system. It seems to me that his historical challenge is to make sure that the system [that] shall survive in the United States of America shall be a system which guarantees justice and freedom for everyone."

    LDF's work will go on, in just the way that John would have wanted.

    President Obama said today in a statement:

    Michelle and I were saddened to hear about the passing of our dear friend John Payton. As president and director-counsel of the NAACP Legal Defense and Education Fund, John led the organization's involvement in five Supreme Court cases.

    A true champion of equality, he helped protect civil rights in the classroom and at the ballot box. The legal community has lost a legend, and while we mourn John's passing, we will never forget his courage and fierce opposition to discrimination in all its forms.

    Payton was a voice for the civil rights community, and a leading constitutional thinker. During a 2009 American Constitution Society event at the National Press Club on “The Road from Lincoln to Obama,” Payton discussed the importance of shedding our racist history as we move forward with our constitutional jurisprudence.

    “I would say Reconstruction didn’t fail. It was destroyed,” he said.

    He continued:

  • June 20, 2010

    The conservative wing of the Supreme Court has actively, and successfully, overturned and narrowed laws meant to protect workers' rights, minority voting rights, access to courts, as well as taking and construing cases to advance corporate interests, maintained several panelists at the final plenary panel of the 2010 ACS National Convention.

    Moderator Linda Greenhouse, a senior research scholar at Yale Law School and former Supreme Court correspondent for The New York Times, asked constitutional law expert Pamela S. Karlan to explain the judiciary's role among the three branches of federal government.

    Karlan, a Stanford Law School professor, said, "The Constitution is written in very broad language about very broad principles that were intended to endure for a long period of time and to be applicable to a nation that the framers knew would emerge, but they didn't know in what form. That's why the most important parts of the Constitution are written in broad and sweeping language."

    But at the second framing of the Reconstruction Amendments - the 13th, 14th and 15th Amendments - the framers gave "Congress special power to enforce by appropriate legislation the guarantees that go into the rights of citizenship, the guarantees of the privileges or immunities clause, the equal protection clause, and the due process clause," Karlan said. "And they gave Congress that power in part because they distrusted the Supreme Court. I mean today the Supreme Court is living off of the fumes of Brown against Board of Education, that's why it has such power in our country."

    But, at the middle of Reconstruction, the high court, Karlan noted was "living off the fumes of Dred Scott." She said, "the Supreme Court was not the place you went to get equality, you went to the legislature."

    "So the Constitution's broad sweeping powers are given their real-life meaning by Congress. If you ask where did we get equality, it's from the Civil Rights Act of 1964. If you ask ‘how is that the 15th Amendment actually enfranchised African Americans?' More African Americans were enfranchised in the first two years after the passage of the Voting Rights Act of 1965 than in the entire prior century through judicial enforcement alone. And that's because Congress banned literacy tests [for voting] when the Supreme Court wouldn't. Congress gave people the right to register, when the Courts didn't."

    Karlan noted that it is just as important, if not more so, to confirm lower court judges who understand the role of the judiciary, the Constitution and are taking appropriate action. As she noted, it is not useful to pass health care reform law only to then have it hobbled by conservative jurists or to pass environmental regulations that are subsequently gutted by similar judges.

    Karlan co-authored a book published by ACS called Keeping Faith with the Constitution, which takes a critical look at the cramped constitutional interpretation promoted by many conservative jurists and lays out an alternative one that promotes fidelity to the Constitution. 

    Congressman Jerrold Nadler (D-N.Y.) knocked the Roberts Court for its "campaign to shut the door on litigants." I've introduced a bill, Nadler said, to try to restore the pleading standards, but the business community and its lobbyists, such as the Chamber of Commerce, are targeting the bill, the Open Access to Courts Act. "I don't know if we can bring that to a vote this year or not," he said.

    Nadler continued, that the Roberts Court, contrary to Chief Judge Roberts' confirmation testimony, "has been a very activist court."

    Someone suggested a few years ago that maybe we start inserting into our legislation the words, "this time we mean it," Nadler added.

    John Payton, head of the NAACP Legal Defense and Educational Fund, Inc., said that Congress should take action to "shore up the Voting Rights Act," in light of the high court's recent 5-4 ruling that suggested the conservative wing, led by Chief Justice John Roberts' was seeking the necessary fifth vote to gut Sec. 5 of the Voting Rights Act, which requires a number of states and localities with a history of voting discrimination to get federal preclearance before making any change to voting practices or procedures. But, Payton said he didn't believe there was a "chance that Congress could take any action on the Voting Rights or any other major piece of Civil Rights legislation in this poisoned atmosphere."

    Video of the Congress and the Courts plenary:

  • June 1, 2010
    Most states and local governments are counting prisoners in creating election districts, maintains a report released today by the NAACP Legal Defense and Educational Fund, Inc. (LDF).

    In "Captive Constituents," the LDF notes that "most states and local governments count incarcerated persons as residents of the prison communities where they are housed when drawing election district lines, even though they are not residents of those communities and have no opportunity to build meaningful ties there."

    "This practice is known as ‘prison-based gerrymandering,' and it distorts our democratic process by artificially inflating the population count - and thus, the political influence - of the districts where prisons and jails are located," said John Payton, LDF president and director-counsel, said in a press statement about the report."

    The full report is available here.

  • May 24, 2010
    The Supreme Court ruled this morning that a group of African American firefighters can go forward with a lawsuit against Chicago charging discrimination in its use of an employment test. In Lewis v. City of Chicago, the unanimous court overturning a federal appeals court decision, concluded that plaintiffs in this matter had not waited too long to challenge Chicago officials' use of a test to hire firefighters. The plaintiffs in the case, a group of potential firefighters, had argued that Chicago officials employed a test in a way that negatively impacted African American applicants. A U.S. District Court agreed that the city's use of the test did discriminate against black applicants, but that decision was later overturned by the U.S. Court of Appeals for the Seventh Circuit.

    City officials had argued that the plaintiffs had waited too long to file their lawsuit pursuant to Title VII of the Civil Rights Act of 1964. The Civil Rights Act requires that a charge of discrimination must first be lodged with the Equal Employment Opportunity Commission (EEOC) in a specified timeframe. Writing for the majority, Justice Antonin Scalia maintained that the plaintiffs claim was properly filed under the Civil Rights Act. "Title VII does not define ‘employment practice,' but we think it clear that the term encompasses the conduct of which petitioners complain: the exclusion of passing applicants who scored below 89 (until the supply of scores 89 or above was exhausted) when selecting those who would advance. Although the City had adopted the eligibility list (embodying the score cutoffs) earlier and announced its intention to draw from that list, it made use of the practice of excluding those who scored 88 or below each time it filled a new class of firefighters. Petitioners alleged that this exclusion caused a disparate impact. Whether they adequately proved that is not before us. What matters is that their allegations, based on the City's actual implementation of its policy, stated a cognizable claim."

    The Associated Press noted that today's ruling was the second time in recent years that the Court "has tackled discrimination in testing within the firefighting ranks." In 2009, the high court ruled in Ricci v. DeStefano that Connecticut city officials had used a firefighter's employment test in a discriminatory manner.

    John Payton, president and director-counsel of the NAACP Legal Defense and Education Fund, lauded the Supreme Court's decision. Payton told the AP, "Today, the Supreme Court affirmed that job-seekers should not be denied justice based on a technicality. This victory goes well beyond the immediate results in Chicago. It should ensure that no other fire department or employer uses a discriminatory test, and LDF will go the extra mile to make sure that they do not."