The US Supreme Court has played a key role at times in US history. One such occasion was when a decision was required on segregation in the 1890s. Here, Jonathan Hennika continues his look at the history of the US Supreme Court (following his article on Marbury v Madison hereand Dred Scott here), and focuses on the 1896 case of Plessy v Ferguson.
Recently, President Trump criticized a federal judge who ruled against his administration’s asylum policy calling him an “Obama judge.” While it is often customary for judges to avoid commentary on this type of political remark, Supreme Court Chief Justice John Robertsthought little of Mr. Trump’s comparison. In repudiating the President’s comment,the Chief Justice relied on the conventional wisdom of an apolitical judiciary. In a rare display of judicial independence, Chief Roberts declared, “We do not have Obama judges or Trump judges or Bush judges or Clinton judges, what we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”[i]
In discussing the debate between President Trump and Chief Justice Roberts, The New Republic’sJonathan Zimmerman invokes the “Martin-Quinn” measure of the judiciary to point out that, “We have a Supreme Court where every Republican on the court is more conservative than every Democrat.” What this means to the nation is that “gone are figures like John Paul Stevens, a Republican judge nominated by a Republican president, who usually sided with Democrat-nominated justice on the court.”[ii]The Martin-Quinn measure was developed by two University of Michigan academics, funded in part by the National Science Foundation, to provide a statistical analysis of the Court’s ideological leanings since 1937.[iii]
While proving helpful, one does not need a statistical analysis of ideological leanings to examine the Court’s history. The Court’s Dred Scott decision ill defined what it was meant to be a citizen. In another infamous ruling, the Court ratified de jure discrimination when it ruled in support of de factodiscrimination of the Jim Crow South.
Plessy versus Ferguson: A Test Case Like No Other
The American landscape changed dramatically in the decades after the Supreme Court’s Dred Scottdecision. The nation fractured with the Civil War, followed by a period of Reconstruction. Concurrently, it was a period of rapid industrializationin the North and Midwest; the agricultural South fell into a system of tenant farming and sharecropping. This system flourished, in part, because in the states of the old Confederacy societal divisions continued along racial lines. Historically referred to as the Jim Crow era; it was the period of segregation of the races.
One of the popular benchmarks historians use to measure a nation’s growth is the area of transportation. Rail united America in 1890; approximately 163,597 miles of railroad tracks crisscrossed the land.[iv]To govern rail passage, the state of Louisiana enacted the Separate Car Act, legislation requiring the railroad companies to maintain a second set of train cars for African American passengers. In New Orleans, a group of like-minded residents formed the “Comite des Citoynes” or Committee of Citizens to fight the law. The Committee asked Homer Plessy to participate in the test case. With his one-eighth African heritage,Plessyagreed. After purchasing a first-class ticket and boarding the train’s whites-only car, a private detective hired for the sole purpose arrested Plessy.[v]
The case made its way to the Supreme Court which heard arguments and issued its ruling on May 18, 1896. Unlike the Court that ruled on Dred Scott, the Plessy court was regionally diverse. Three of the justices hailed from the Northwest; two from the South; three from the Midwest; and one from the West. Regionalism, once the rallying cry of the nation gave way to other considerations. “Most of the judges were conservatives who favored protection of property rights vis-à-vis state regulationof private property….Justice Stephen J. Field, a California Democrat…was by far the most influential member of the Plessycourt….he was an early champion of minority rights, he later became an advocate of laissez-faire economics and championed the revolution in due process of law…when the Court recognized substantive due process as a limitation of state legislative power.”[vi] The Court became economic activists, issuing rulings limiting the effectivenessof governmental regulations on private enterprises. The railroad company, East Louisiana Railroad, was a voluntary participant to the lawsuit. They objected to the Separate Car Act on the economic grounds of the added expense of the African-American only cars. When deciding the case, the laissez-faire, hands-offattitude espoused by Field could not stand up to prevailing institutionalized racism predominate in the American South. In a 7 to 1 decision, Justice Brewer did not participate; theCourt ruled the Separate Car Act did not violate the 14thAmendment’s Equal Protection Clause.
Separate but Equal?
Justice Henry Brown wrote for the majority: “The object of the [14th] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.Lawspermitting and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either raceto the other and have been…recognized as within the competency of the state legislatures in the exercise of their police power.”[vii]
The irony of the Plessy decision is that neither the attorney’s involved for Plessynor the Court ever discussed the premise of equal accommodations. The legal question revolved around the constitutionality of the Louisiana statute when measured against the Constitution. In arguing that the state followed the 14thAmendment in the creation of the Separate Car Act, Brown turns to inherently racist logic:
It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is property in the same sense that a right of action or inheritance is property. Conceding those to be so for the purpose ofthis case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he bea white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called property. Upon the other hand, if he bea colored manand be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man.[viii]
University of Michigan Historian Rebecca Scott summarized the Court’s decision as embracing the “white-supremacist formulation—which reinterpreted the claim to equal treatment as a matter of forcing oneself where one was not wanted—that carried the day…the damage thus done was both practical and doctrinal, formalizing the sleightof hand that portrayed an aggressive program of state-imposed caste distinctions as the mere ratification of custom.”[ix]
Segregation in the American South continued unabashedly throughoutthe twentieth century. Proponents of segregationembraced the Plessy decision as validation that separate was equal. They argued that classification was not discrimination and if all members of the class receivedthe same treatment, there was no disparity. The Supreme Court heard other cases regarding racial bias, but it was not until its Brown versus Board of Education, decision in 1956 that separate but equal was declared unconstitutional. In the intervening years, there are additional rulings that exemplifythe apolitical nature of the federal judicial systems’ top court.
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[i]Jonathan Zimmerman, “Who is John Roberts Kidding,” The New Republic, November 26, 2018. https://newrepublic.com/article/152399/john-roberts-kidding
[iii]Martin-Quinn Score Project Description, http://mqscores.lsa.umich.edu/
[iv]Central Pacific Railroad Photographic History Museum “Maps Showing the Progressive Development of U.S. Railroads - 1830 to 1950,”http://cprr.org/Museum/RR_Development.html
[v]Plessy v Ferguson, 163 U.S. 537 (1896)
[vi]David W. Bishop, “Plessy v Ferguson: A Reinterpretation,” The Journal of Negro History,62 (Apr. 1977), 126. This
[vii]Plessy v Ferguson, 163 US 537; 544
[ix]Rebeca Scott, “The Atlantic World and the Road to Plessy v Ferguson,” The Journal of American History, 94 (Dec. 2007), 731.