Supreme Court Begins Hauling Down The Confederate Flag [deep dive]

Racism, Confederates
Written by Tom Ewing

In a decision many missed because the Supreme Court released it the morning after the South Carolina church massacre, the high court has begun hauling down the Confederate flag. Tom Ewing digs in with the news, the legal docs, and analysis …

aNewDomain — The Confederate flag will continue sinking away from public view, finding its final resting place among fringe hate groups. A Supreme Court decision you probably haven’t heard about — the high court released it the morning after the Charleston Church shooting — will speed the removal of the pro-slavery flag from displays authorized by state governments.

The Supreme Court had already ruled against the Confederate flag before the Charleston Church shooting ripped any remaining legitimacy away from the slavery flag. Debate in Walker v. Texas Div., Sons of Confederate Veterans hinged on the narrow question of whether a minor Texas state board could refuse to issue a specialty license plate if it found a proposed design too controversial.

Justice Clarence Thomas casts the deciding vote

The specific issue debated by the Court was whether specialty license plates were “government speech” or “private speech.” The Court ultimately decided that specialty license plates, like statues in public places, are government speech and do not have the First Amendment protections of private speech.

Justice Clarence Thomas cast the deciding vote in Walker. Justice Thomas typically sides with the Court’s conservative justices, especially in First Amendment cases. In Walker, he didn’t. Justice Thomas is the only African American justice on the Court.

The majority opinion was written by Justice Stephen Breyer and focused more on legal issues and prior precedent than the history of the Confederate flag and its association with slavery.

What would you think of a Confederate flag on your license plate?

Justice Samuel Alito wrote the dissenting opinion which focused on the question of how the public would view a Confederate license plate, hypothetically asking if a member of the public sat by a public highway watching cars drive by would he “really think that the sentiments reflected in these specialty plates are the views of the State of Texas and not those of the owners of the cars?”

The Texas board concluded that the public would assume that the State of Texas had approved of the Confederate flag. Alito found their conclusion preposterous.


Texas was formerly a slave state. Texas was the seventh of 11 states to join the Confederacy.

Texas governor and sometimes Presidential candidate Rick Perry supported display of the Confederate flag until 2011.

The Supreme Court didn’t scrutinize the Sons of Confederate Veterans in its decision, the group that asked for the specialized license plate. The SCV was organized in 1896 by actual sons of Confederate veterans during the Jim Crow Era long before the blossoming of the civil rights movement.

Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee and Virginia (nine states in all) offer Sons of Confederate Veterans license plates featuring a version of the Confederate flag. Confederate plates have been rejected in Florida, Kentucky and Texas. Within the past few days, Georgia has also suspended the issuance of new Confederate plates.

The Supreme Court’s decision in Walker doesn’t explicitly prohibit states from displaying the Confederate flag on their license plates. But any images displayed on a license plate are now “government speech,” which should simplify a political solution to the Confederate flag problem.

Southern conservative leaders, long supporters of the Confederate flag, have begun deserting the flag and its proponents. Similarly, public support in the South for the pro-slavery flag seems to be crumbling. The governors of South Carolina and Alabama have ordered Confederate flags removed, and the governors and/or legislators of other states are considering similar measures.

Yay. Let’s put a slave trader/mass murderer on your license plate!

In 2011, the Sons of Confederate Veterans proposed a vanity plate for Mississippi honoring Nathan Bedford Forrest. Forrest is an odd choice to single out for special honors. The Mississippi Daughters of the Confederacy, itself a neo-Confederate organization, doesn’t even list Forrest on their roster of Mississippi Confederate Generals. He only lived in the state for a while.

Forrest was a slave trader prior to the Civil War. After the war, he founded the Ku Klux Klan. During the war, soldiers at his instruction killed nearly 300 U.S. soldiers who were attempting to surrender. The Fort Pillow Massacre outstripped the World War II Malmady Massacre by more than 200 U.S. soldiers.

Does that sound like an honorable man worthy of state recognition in 1865, let alone 2015?

A more Mississippian and less controversial figure would have been Confederate Major General Charles Clark who was also Mississippi’s governor during the Civil War. Gov. Clark doesn’t seem to have any war crimes attached to his name.

Confederae flag

For its part, the Sons of Confederate Veterans officially decries the use of the Confederate flag by extremist hate groups.

One might argue that the Confederate flag is a very appropriate symbol for an extremist racist group.

The neo-Confederate movement

The Sons of Confederate Veterans also claims that the Civil War was not about slavery. In contrast to the SCV’s revisionist history, Confederate Vice-President Alexander Stevens laid the philosophical foundations of the Confederate government in his Cornerstone Speech on March 21, 1861:

Our new Government is founded upon exactly the opposite ideas; its foundations are laid, its cornerstone rests, upon the great truth that the Negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and normal condition.”

Confederate propagandists often comingle “the Confederacy” with “the South.”

To be clear, the Confederacy is not and never was the South. The Confederacy was a political philosophy that promoted institutional slavery and considered Africans not much more advanced than cattle. One third of the South in 1861 comprised African Americans who could not vote. Another third were women who could not vote. Of the remaining third of white males, only a third of them owned slaves.

Of course, after 150 years, those Confederate soldiers who served honorably are worthy of respect.

The Southern Poverty Law Center, which tracks hate groups, classifies the Sons of Confederate Veterans as one of a series of neo-Confederate organizations having a reactionary conservative ideology that has made inroads into the Republican Party from the political right and overlaps with the views of white nationalists and other more radical extremist groups. The Southern Poverty Law Center report continues:

Proponents of neo-Confederacy typically look to the antebellum South and the Confederate States of America (C.S.A.) for lessons on leadership, values, morality and behavior. The C.S.A., which existed during the Civil War from 1861 to 1865, and its leaders Jefferson Davis, Thomas ‘Stonewall’ Jackson, J.E.B. Stuart, Robert E. Lee and Nathan Bedford Forrest, are venerated as working to uphold the U.S. Constitution by preventing Abraham Lincoln’s federal government from maliciously revising its provisions. Neo-Confederacy thus promotes a perspective that claims that the Civil War, often termed the War of Northern Aggression, was an unconstitutional invasion of southern states by aggressor Union forces. In this interpretation, President Lincoln is understood to be a war criminal, and key amendments to the U.S. Constitution, most pertinently the Fourteenth Amendment’s ‘equal protection’ clauses, are illegal and their implementation is therefore illegitimate.”

On his website, Dylann Roof left a 2,000-word manifesto in which he identifies himself as a white nationalist and says he was “truly awakened” to his beliefs after reading the online propaganda of the Council of Conservative Citizens, another neo-Confederate group tracked by the Southern Poverty Law Center.

The Confederacy should have been buried 150 years ago at the conclusion of the bloodiest war in U.S. history. The sun is setting on the Confederacy’s blood splattered emblem — and it can’t set fast enough.

The decision is readable in full below:

Walker v. Texas Div., Sons of Confederate Veterans

For aNewDomain, I’m Tom Ewing.

All images: All Rights Reserved

Proposed Sons of the Confederacy License Plate, Appendix to U.S. Supreme Court decision in Walker v. Texas Sons of Confederate Veterans.

Confederate flags flap in the breeze during Confederate Memorial Day exercises at the Confederate Memorial in Arlington National Cemetery in Arlington County, Virginia, in the United States on June 8, 2014. The color guard was provided by the Maryland Division, Sons of Confederate Veterans.




  • So this is how the U.S. / American Flag of the United States will be removed? The discussions are now being presented that the American Flag of the United States must be removed for the exact same reasons.
    This is history, rather good or bad this is a part of the United States of America . To remove history is wrong because that is where ones lessons come from so as to keep in ones mind so as not to repeat if was wrong and/or improve upon if that part of history was correct.
    Again, this is how they will remove the American Flag of the United States in the near future as I previously said is being presented for removal.

  • “finding its final resting place among fringe hate groups” – NOT! How about civil war re-enactments? How about folks whose ancestors may have fought in said war? How about people like myself who are considering flying it as an F U to the current libtard administration? Beyond that the statement “The Texas board concluded that the public would assume that the State of Texas had approved of the Confederate flag” simply shows the dumb masses and particularly this board are clueless. That said since when do we allow clueless people to make decisions for thinking people?

  • What hate groups? The hate is coming from you libs.Rebel flags are flying everywhere in the SOUTH> I have flown my for many years.AND will continue doing so. SO why dont you hate groups get lost!