Justice James E.C. Perry nestled a box of mementos under his arm, pulled his black robe off the hook in his Tallahassee office overlooking a grove of live oak trees, and left his corner office in Florida’s Supreme Court for the last time two weeks ago.
Perry’s nearly eight-year career on the state’s highest court ends Friday. He is forced to retire because, at 72, he has reached Florida’s mandatory retirement age for Supreme Court justices.
The trail-blazing child of Jim Crow segregation describes his time on the bench simply: “I kept it real,” he says with a characteristic belly laugh.
He leaves with no regrets and plenty to say. One of his last acts on the court was to author a blistering dissent in a seminal death penalty ruling last week in the case of Mark James Asay. As the court majority upheld the death penalty in dozens of cases prior to 2002, Perry declared that it was an uneven and “discriminatory” application of capital punishment and left the state’s constitutional protections to “little more than a roll of the dice.”
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“I no longer believe that there is a method of which the State can avail itself to impose the death penalty in a constitutional manner,” Perry wrote in a 10-page dissent.
In many ways, the proclamation was not only a parting shot at one of the most vexing issues before the court, but the culmination of a career by someone shaped in an era he calls “apartheid America” who continues to be pelted by the arrows of racism today.
“There’s a reason the people who led the nation in lynching of black people also lead in electrocutions,” Perry said in an interview with the Herald/Times. “There’s a nexus there.”
Perry, a native of New Bern, North Carolina, went from the projects to Columbia University Law School, where he graduated in 1972. He was determined to return to the South, where he believed “hatred was taught, and it’s based on ignorance.”
Appointed by Jeb Bush
He was first appointed to the bench by former Gov. Jeb Bush in 2000 and served as the first black judge on the 18th Judicial Circuit, where he was elected chief judge after two years. In private practice, his career spanned from working with the indigent and underemployed, to representing business in public works projects. He was appointed to the Supreme Court in March 2009 by former Gov. Charlie Crist.
In a wide-ranging interview, Perry offered thoughts on how he views the election of Donald Trump as a backlash against Barack Obama, the flaws he sees in the “originalist” judicial doctrine, the failures of the Florida Legislature, and why the judiciary must remain stridently independent.
“Yes, I’m a liberal,” Perry said, noting that Crist caught heat from conservatives, Republican Party officials and GOP donors after appointing him. “Jesus Christ was a liberal was he not? I mean, it’s not a dirty word — to want to change things.”
But he credits his appeal to the two governors to his integrity and willingness to keep an open mind.
“I didn’t promise them anything,” he said, but told them: “Don’t ask me to compromise my integrity or my race. Everything else is on the table.”
He said segregation continues today, perpetuated by an unfair justice system that “criminalizes black faces,” and he fears that the “poor whites who voted for Donald Trump voted against their pocket book” for racial reasons.
“Forty-two percent of the people in prison are black,” he said. “Are we all criminals? Is that part of our DNA? Of course not. … Hatred and prejudice is taught. You aren’t born with it. So if you can teach it, you can unteach it, if there’s a will to do so.”
He suggests that the reason so many “poor whites” supported Trump “can’t be economic self-interest — because they’re against minimum wage and having health insurance. … It’s a backlash from Obama. It’s this fear of being the minority in this European country in America.”
The “dog whistles” and “false narratives” that have emerged this election cycle have also led some to believe false hopes, he said. “America is not going back to being Anglo Saxon.”
Flaws of ‘originalist’ doctrine
Racist thinking has also penetrated some judicial thought, namely the “originalist” judicial philosophy of many conservatives, embraced by the late U.S. Supreme Court Justice Antonin Scalia, Perry said. That doctrine adheres to the notion that interpretation of law should be based on the original meaning of the text of the statute or the Constitution at the time it was enacted.
The doctrine was promoted by conservatives as a de facto litmus test for Gov. Rick Scott’s replacement for Perry on the court. Scott’s selection, C. Alan Lawson, described his approach as “very originalist.”
But to Perry, a descendant of slaves, the notion that jurists should interpret the Constitution through the lens of the original intent of the founding document is incongruous.
“They say that the Constitution is stagnant and I don’t think it is. I think it is living — like the Bible is living,” he said. “Should I want to be an originalist and go back to the original thinking of the Founders? No. Never. I’m not enamored by places called plantations. That doesn’t give me warm and fuzzies.”
Perry considers the Founders “flawed people” who were wise but not omniscient.
“They were slave owners,” he said. “These people didn’t have divine intervention. They had some great ideals, but it didn’t include poor whites. It didn’t include women. We weren’t even human beings, we were chattel. It didn’t include the Native Americans, and it didn’t include merchants. It included land owners, or planters, they called them.”
He noted that slaves were not allowed to marry, and black men had to submit to their owners at all costs: “They’d come in and want to have favors with your wife — whatever you call her — you would have to stand outside the door. Think about it, just in terms of human sense. How debilitating, how dehumanizing can you get?”
He believe he would “be a fool” to want to turn back the clock to the originalist intent of the founders.
“I’m not trying to divine what they might think about me,” he said. “They didn’t have computers. They didn’t have airplanes. They didn’t have cars. How could they have thought about even putting that in the Constitution?”
A public servant
At his retirement ceremony in the hallowed chambers where he and the six other members of the bench presided over some of the most controversial cases in Florida history, Perry was recognized by Crist as well as his current and former colleagues. They called him a good listener who was approachable and open. He was a public servant who believed in the public, and an accomplished lawyer who took his job, not his ego, seriously.
“I promised myself when I was a young age that if I ever made a level of success, I would never be like that because if I looked down on people, I’d be looking down on my relatives,” he said.
He acknowledges he has had a remarkable history and has “been places where I never thought I’d go because I never intended to go there.”
At age 11, he took part in his first civil rights march, a mock funeral with a casket symbolizing the death of Jim Crow. It was May 17, 1954, the day the U.S. Supreme Court declared in Brown v. Board of Education that segregated schools — like the one he attended — were unconstitutional. During his undergrad years at Saint Augustine’s University in Raleigh, he marched with Dr. Martin Luther King Jr. while Ku Klux Klan members — dressed in either white hoods or army fatigues — taunted him by shouting the n-word.
After college, he worked as a junior accountant at IBM in Raleigh, until he was drafted to serve in the Vietnam War.
“I worked and struggled to get out of the projects, and now they are going to send me over there to be killed!” Perry told the Florida Bar Journal. So Perry went to officers’ candidate school, became a first lieutenant and spent his Army career training officers, not on the front line.
King’s assassination provided the pivotal moment for him to apply to law school. Although Perry didn’t know a single lawyer, he did know that those in power and with credibility were often lawyers.
At Columbia University, Perry met his wife, Adrienne. The E.C. in his name stands for Edward Clark, but Adrienne Perry says it stands for “ever charming.” The couple has three grown children, all living in Orlando. Two are lawyers and one is a human resources manager.
After law school, Perry passed a multi-state Bar exam but was required to pass a separate Bar exam in Georgia to practice law there. When he and 49 other black applicants failed the exam, he sued the Georgia Board of Bar Examiners, alleging violation of the Civil Rights Act. He won.
While the case was still in litigation, Georgia administered another exam and Perry and 23 other black applicants passed. Within months the number of black attorneys in Georgia more than doubled.
Work in Florida
Perry moved to Florida, where he began working with the Seminole Employment and Economic Development Corp. in Sanford. He went into private practice, specializing in civil and business law as a senior partner in Perry & Hicks, P.A.
He recalls the only time he did business in Miami, serving as the bond counsel for the underwriter for two sewage deals valued at $250 million each. He was approached by then county commissioners Art Teele and Jim Burke, “who wanted some quid pro quo.”
“I got to know that I didn’t want to know them,” Perry recalled. “I said ‘Why should I do that?’ ‘You’d make millions.’ I said, ‘You are right.’ I raised my hand and said: ‘The testimony you are about to give,’ and I said ‘I don’t need millions.’”
Perry said he told his wife, “you know, those guys will be in prison in two years.” Both were convicted on corruption charges, although Teele’s conviction was later overturned.
“My wife told me, be careful down in South Florida. I said, ‘I don’t have to be careful. I know right from wrong,’” he said with a laugh. “You can’t be convicted of a crime unless you intended to do it. So if you know right from wrong, it’s just a matter of not doing wrong.”
Perry said he can’t recall any single moment that motivated his drive, except that he knew from a young age “that man’s inhumanity to man was very terrible” and that discrimination “can happen on many levels.”
He recalled how his light-skinned grandmother, a teacher in the segregated black schools in New Bern, “discriminated against her own family” because of the darkness of their skin.
“She didn’t like people who looked like me and my mother,” he said. “She told me I’d be in prison before I was 20 because of my pigmentation.”
His cousins with lighter skin, however, “she gave them every opportunity for a positive self-concept.”
When he was less than 10 years old, his grandmother accused him of stealing $5 from her. He denied it, and she told his father. Two weeks later, when she found the money while moving some newspapers, she didn’t apologize.
“That’s very, very hurtful,” Perry said. “So that goes into the psychological mindset of my sense of right and wrong and my sense of treating people with dignity and respect.”
Perry said he works hard to help his white friends understand his perspective, and he acknowledges that his background helped to shape his work on the bench.
“We are all products of our experiences and acculturation and all processes,” he said. “I was in apartheid America. People say things are bad now. I’ve been through bad.”
He persuaded the other justices on the court to read “Devil in the Grove,” the Pulitzer Prize-winning story about four black men falsely accused of raping a 17-year-old white woman in Groveland, Florida, in 1949. The book recounted the tactics used by Thurgood Marshall, a black lawyer who would become a U.S. Supreme Court justice, that chipped away at the foundations of Jim Crow law.
While much has improved, he believes “the separation is still there.” Perry lives in an upper-class neighborhood in Longwood, outside Orlando, in the county where Trayvon Martin was killed, but he says he does not feel safe walking in his neighborhood.
“It’s a very conservative area,” he said. “I see Confederate flags with Trump on it. Am I afraid? Yes, but will it stop me? No. … They don’t necessarily know who I am but these crazies might say let’s kill somebody.”
Perry doesn’t believe Trump is a racist but believes that racists think he is.
“They don’t wear sheets anymore. They wear three-piece suits, and they don’t seem as ominous but they are, and they are more dangerous,” he said.
He can’t say whether his discussions with his judicial colleagues changed anything, but he is hopeful.
“They read the book. They weren’t aware Florida’s history was worse than Alabama and Mississippi and was just below the radar,” he said.
In addition to his dissent on the death penalty, Perry authored a concurring opinion in the court’s redistricting case, rebuking critics, such as U.S. Rep. Corrine Brown, a black member of Congress from Jacksonville, who compared the changes in her court-drawn district to slavery and argued as if she was entitled to retain the seat.
Perry wrote in a concurring opinion joined by Justice Peggy Quince, the court’s only other black justice, that civil rights activists had fought for the right to vote and it was “an insult to their struggle for politicians to now use that sacrifice for personal benefit.”
“I don’t think anybody owns an office,” Perry told the Herald/Times. “You can’t pass it on to your child. That’s why we left England, isn’t it?”
Perry also has harsh words for the Florida Legislature, which he calls “a joke” for its willingness to operate like an autocracy rather than a democracy.
“We have elected officials who are handing down from on high what the legislation needs to be,” he said. He said the copy-cat legislation written and promoted by conservative groups like the American Legislative Exchange Council has weakened the process.
“They have these agendas that seem to be innocuous but they play very pivotal roles in the kind of society we’re going to have,” he said. “I mean it’s ridiculous. They have legislation passed that is against big government but they are going to make billions off of government.”
As he leaves office, he said he hopes this election year will have alerted people to the importance of “being engaged in a participatory democracy” and to remain vigilant about preserving it.
“My interest in government is to help the people. Most people’s interest in government is to get the spoils from it, and there lies the difference.”
Perry, who has spent his career outside of the courtroom building a youth baseball league, singing in his church choir, mentoring aspiring young lawyers and speaking to many college audiences, said he is confident he will stay busy. He will remain on the bench for the next month or two as a senior judge to complete rulings on the cases that remain in the court’s pipeline. But he won’t be quiet.
“I didn’t come here to make friends,” he said. “I didn’t come here to win a popularity contest. I came here to try to see that justice is done.”