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Constitutional challenge to a law steeped in racism: The ACLU is representing Mr. Noor in his constitutional challenge to Congress鈥檚 COA requirement. Mr. Noor鈥檚 challenge calls attention to the disturbing cloud of racism surrounding the enactment of the COA requirement. In 1908, in the wake of the Civil War and Reconstruction, a campaign of racial-terror lynchings across the American South was cresting, intimidating Black people with the goal of maintaining white supremacy.

Congress鈥檚 enactment of the COA requirement was premised on the idea that allowing federal habeas appeals only for those prisoners who obtain prior judicial permission (the COA) would speed up executions and prevent lynchings. As a U.S. House of Representatives report accompanying the law explained: 鈥淸T]he delay of execution and punishment in criminal cases is the most potent cause in inducing local dissatisfaction, not infrequently developing into lynching[.]鈥� H.R. Rep. No. 23, 60th Cong., 1st Sess. (1908).

Conflicting narratives on the cause of lynchings: The 1908 legislation and its stated purpose furthered a pernicious mythology about both the judicial system and Black men steeped in white supremacy: that Black men were regularly raping white women, and escaping punishment based on technical rulings from duped courts. Justice David Brewer, an influential Supreme Court justice known as the 鈥減eople鈥檚 justice,鈥� in a widely circulated article. So too did President Theodore Roosevelt in his , as did Sen. Benjamin Tillman in speeches to Congress.

Many stood up against this false narrative undergirding the new law. Most prominently, Ida B. Wells, in her campaign against lynching, worked to expose the claim that Black men were raping white women as a 鈥溾�� The ACLU followed suit, in a 1921 brochure entitled Lynching and Debt Slavery 鈥渙ne of the most successful illusions in the history of human relations.鈥�

Mr. Noor鈥檚 brief in the Ninth Circuit: As Mr. Noor鈥檚 brief to the Ninth Circuit argues, in 鈥渢he name of protecting Black defendants from white mob violence, Congress chose the perverse path of stripping the people they purported to protect of the legal protections enjoyed by every other class of litigant. This is profoundly ironic, misguided, racist, and ultimately unconstitutional.鈥�

His appeal calls on the Court to examine the constitutionality of this law in light of its racist origins. It argues that the COA requirement is unconstitutional because it applies unequally 鈥� while prisoners who lose in a district court habeas proceeding must obtain a COA to appeal, if the government loses in the same proceeding, it can appeal as of right, just as every other class of litigants seeking to appeal a final decision from a federal district court. And it argues that, in our judicial system, the rights to appeal and to habeas corpus are fundamental, which means they can鈥檛 be stripped away unless the government can show it is addressing a compelling need in a narrow manner. As the brief shows, the government cannot meet this burden, including, but not only, because the COA鈥檚 original purpose is inextricably tied up with a troubling chapter of racism in American history.

The Ninth Circuit will hear oral argument in this matter on September 11, 2024.