Supreme Court

By: Paul Finkelman

Source:

 Encyclopedia of African American History, 1896 to the Present: From the Age of Segregation to the Twenty-first Century

Supreme Court

Since 1895 the relationship of the U.S. Supreme Court to African Americans has dramatically evolved. In 1896 the Court anointed segregation in its decision in Plessy v. Ferguson. In the next two decades it heard a number of cases involving race and almost always sided with supporters of segregation and racism. From about 1915 until World War II the Court occasionally protected the rights of blacks but often did not. On the eve of World War II the Court, then being remade by President Franklin Roosevelt, began to confront segregation directly. During the war the Court did little to harm the rights of blacks and even expanded black rights in some areas. Moreover, decisions involving other minorities and other issues created precedents and legal theories that would later support a massive expansion of civil rights.

From 1946 until at least the early 1970s the Court was generally a friend of civil rights and racial equality. With the decision in Brown v. Board of Education (1954) as its centerpiece, the Court built a huge body of precedent that undermined segregation throughout the South. In addition it interpreted the Constitution and federal power in ways that encouraged Congress to adopt sweeping new legislation to ban all public and a great deal of private race discrimination. Building on precedents that involved economic regulations during the New Deal, Congress and the Court developed a constitutional superstructure that allowed for the protection of civil rights at the federal level and enabled the elimination of state-sanctioned segregation and discrimination. From the 1970s to the present the Court's role in race-related issues has been less coherent and more complex. With the demise of legalized segregation (known as de jure segregation) the Court has had to deal with cases involving segregation created by social and economic forces (de facto segregation) as well as attempts to reverse the consequences of segregation, discrimination, and racism through affirmative action and legislative redistricting. These thornier and more complex issues have led to a divided and sometimes inconsistent Court on issues of race and race discrimination.

The Court in the Age of Jim Crow.

After the Civil War the nation adopted three constitutional amendments—the Thirteenth, Fourteenth, and Fifteenth—that ended slavery, made blacks citizens of the United States, required that every state provide equal protection of the laws for all people, and prohibited discrimination in voting on the basis of race or previous condition of servitude. The amendments led to the end of slavery and to significant political participation by blacks in the 1870s.

Despite the hopes of their supporters, such as Congressmen Thaddeus Stevens and John Bingham and Senator Charles Sumner, the new amendments did not lead to full racial equality in America. Southern states resisted the spirit of the amendments as well their obvious requirements and fought to undo them, and the Court often sided with the opponents of equality. In 1875 Congress had passed a sweeping civil rights act, but in Civil Rights Cases (1883) the Supreme Court struck down this law because it regulated private action. The Court made a distinction between state-sponsored discrimination (state action), which the Fourteenth Amendment prohibited, and private discrimination (private action), which the Fourteenth Amendment did not prohibit. Thus Civil Rights Cases sent a clear message to the South: the states were not free to require segregation, but they were free to allow private businesses to discriminate and segregate.

Supreme Court Justices, c. 1896. In a seven-to-one ruling in the case of Plessy v. Ferguson (1896), the Supreme Court approved state-mandated segregation, upholding the doctrine of “separate but equal.” Justice Henry Billings Brown (bottom left) wrote for the majority, and Justice John Marshall Harlan (bottom right), a former slave owner, delivered a stinging dissent. Justice David Brewer did not participate in the decision.

Prints and Photographs Division, Library of Congress

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This was a welcome decision for the majority of white southerners, who were intent on subordinating blacks as much as possible. But white southerners wanted more. After all, not all businesses or private institutions might choose to segregate blacks. Segregation was expensive if implemented under a regime that actually required separate facilities to be equal. Moreover, even if separate was not equal, there would still be inefficiencies in separating the races. Railroads and streetcars, for example, might have to provide extra cars, restaurants might need to provide special black sections (or simply forgo customers), and theaters risked losing business if there were not enough seats in the black section. Segregation was inefficient and costly. Moreover, some charitable institutions might favor integration. In Kentucky, for example, Berea College, which accommodated poor students, had long been integrated.

In the 1890s southern states, now totally dominated by white politicians, looked for new ways to discriminate against blacks to separate the races further, to eliminate blacks' political participation, and to impose what the modern world would call apartheid. Some states imposed literacy tests on voters. These were race-neutral on their surface but had the effect—especially after the enactment of so-called grandfather clauses—of disfranchising more blacks than whites, not least because most former slaves and many of their children were illiterate.

In 1890 Louisiana took an important step toward full racial segregation by requiring that all trains operating in the state provide “equal but separate accommodations for the white and colored races.” Upper-class blacks of mixed ancestry, many of whom were descendants of the antebellum free blacks, organized to test the validity of the law. In June 1892, Homer Adolph Plessy, of mixed racial ancestry, boarded a train and sat in a seat designated for whites. As planned, he was arrested when he refused a conductor's order to move to the “colored” section of the train. He then sued Judge John Ferguson for a writ of prohibition to prevent the case from going to trial. Plessy argued that the law under which he was arrested was unconstitutional. After the Louisiana Supreme Court refused to issue the writ, he appealed to the U.S. Supreme Court. Speaking for a seven-to-one majority, Justice Henry Billings Brown upheld the Louisiana law.

Brown admitted that the purpose of the Fourteenth Amendment “was undoubtedly to enforce the absolute equality of the two races before the law,” but he immediately backed away from the implications of this position. He argued instead that “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.” He further denied that laws requiring segregation “necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.” He added that “the enforced separation of the races, as applied to the internal commerce of the State, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the Fourteenth Amendment.” Brown's conclusion was that such laws were reasonable and compared them to laws allowing or requiring local schools to be segregated.

Perhaps the most significant aspect of this case was Brown's rejection of the claim “that the enforced separation of the two races stamps the colored race with a badge of inferiority.” He cynically argued, “If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” This led to his conclusion that race discrimination was beyond the reach of the government:

"Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane."

Thus Justice Brown and the Court approved state-mandated segregation and essentially declared that the fate of African Americans was to be left to the state legislatures of the South, and that whatever happened to blacks was the result of social forces beyond the control of anyone, especially the Supreme Court.

In a bitter dissent Justice John Marshall Harlan, a southerner who had owned slaves before the Civil War, declared “the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case,” referring to Dred Scott v. Sandford (1857), which denied blacks the rights of citizenship. He argued that the Civil War amendments had “eradicated” the principles of Dred Scott. He accurately predicted that the decision in Plessy

"will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge."

Harlan contended that the Louisiana law was “inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States.” He described the Louisiana law and similar statutes as “sinister” and their effect as “mischievous,” because such laws give states the power “to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens.” With stirring rhetoric, which fell on the deaf ears of his fellow justices, Harlan argued:

"In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race."

Plessy set the stage for sweeping regulations that segregated virtually every aspect of southern life. For the next two decades the Court consistently supported segregation. In Williams v. Mississippi (1898) it upheld a rule that only registered voters could serve on juries, even though almost all blacks in the state had been disfranchised under the 1890 Mississippi constitution. The U.S. Supreme Court quoted the Mississippi Supreme Court's assertion that black disfranchisement was permissible:

"By reason of its previous condition of servitude and dependencies, this race had acquired or accentuated certain peculiarities of habit, of temperament, and of character, which clearly distinguished it as a race from the whites. A patient, docile people; but careless, landless, migratory within narrow limits, without forethought; and its criminal members given to furtive offenses, rather than the robust crimes of the whites. Restrained by the Federal Constitution from discriminating against the negro race, the convention discriminates against its characteristics, and the offenses to which its criminal members are prone."

Endorsing this analysis, the U.S. Supreme Court agreed that black disfranchisement was a result of social conditions and not race, and thus it was permissible. Furthermore, because this case involved jury selection, the Court could deftly avoid any discussion of whether Mississippi's disfranchisement violated the Fifteenth Amendment. Having accepted the racism of the Mississippi Court, the U.S. Supreme Court easily accepted the equally racist pretext that exclusion from jury service was based not on race but on the “conditions” of blacks. In Giles v. Harris (1903), over the dissents of Justices Harlan, Brown, and David Brewer, the Court refused to interfere with Alabama's new constitution, which made it virtually impossible for blacks to vote in that state.

A year later, in Cumming v. Richmond County Board of Education (1899), the Court refused to support equal educational opportunity for blacks. The city of Augusta, Georgia, had closed the only public high school for blacks in the county and used the money to open more grammar schools for blacks. J. W. Cumming, representing the black community, tried to enjoin the operation of the white high school until a separate but equal high school was opened for blacks. The decision did not challenge segregation but asked only that the logic of Plessy be applied to black secondary education.

The U.S. Supreme Court would not endorse such a remedy. Speaking for a unanimous Court, Justice Harlan noted that if the Court issued the injunction the “result would only be to take from white children educational privileges enjoyed by them, without giving to colored children additional opportunities for the education furnished in high schools.” Had the plaintiffs demanded a school for blacks, it is possible, but unlikely, that the result would have been different. At least Justice Harlan might have dissented. But it is unlikely that the Court was actually ready to require that the state comply with the “equal” requirement of the “separate but equal” rule laid out in Plessy.

A decade later, in Berea College v. Kentucky (1908), the Court upheld a Kentucky law that prohibited private schools and colleges from having an integrated student body. Justice Harlan dissented, as he did in most cases involving race. Here he was joined by Justice William Day, who had been appointed to the Court by President Theodore Roosevelt. Both men argued that private parties could use their property as they wished, but both also opposed segregation. They were lone voices on a Court that showed little interest in civil rights.

The Slow Move to Civil Rights.

Though not supportive of civil rights claims, the Court was more consistent in its opposition to new forms of bondage. In Clyatt v. United States (1905) it upheld the conviction of a white man for holding blacks in “peonage” in Florida. The issues in this case were of interest not only to blacks, because Asians, Mexican immigrants, and some white immigrants were also being exploited. The decision upheld a federal antipeonage law that protected many people who were not African American.

In Bailey v. Alabama (1911) the Court struck down an Alabama law that allowed courts to keep debtors and laborers in virtual slavery, a law aimed entirely at blacks. After being advanced fifteen dollars by his employer, Alonzo Bailey had left the job without paying back the money. The Alabama trial court sentenced him to four and a half months of hard labor for violating his contact with the white employer. The U.S. Supreme Court reversed the judgment, declaring that forcing someone to work for an employer amounted to slavery and therefore the courts could not sentence Bailey to hard labor for leaving his employer.

In United States v. Reynolds (1914) the Supreme Court struck down another Alabama law, which allowed local courts to auction off as laborers people—usually blacks—convicted of crimes or civil offenses. These convicts would be turned over to private employers, who would in effect control them until their fines had been paid off and their sentences served. Convict labor became a new source of bondage for blacks, of very inexpensive labor for businesses and plantations, and of income for impoverished southern states.

In Frank v. Mangum (1915), over the lone dissent of Justice Oliver Wendell Holmes Jr., the Court refused to overturn the conviction of Leo Frank, a Jewish businessman in Atlanta convicted of raping and murdering a Christian girl, Mary Phagan. Frank's trial took place under mob conditions, with crowds intimidating the judge and jury. A fair trial under these circumstances was impossible. This heated atmosphere was created by virulent anti-Semitic newspaper editorials and vigorous propaganda by a resurgent Ku Klux Klan. Frank argued that he was denied due process because of the hysteria and mob intimidation at the trial. By a vote of eight to one the Supreme Court rejected Frank's appeals.

Shortly after the ruling Frank was taken from the state prison farm by a mob and lynched. Subsequent research showed that Frank was completely innocent of the crime. Although the case did not involve blacks, the decision illustrated the reluctance of the Court to interfere with southern mob justice. Ironically, however, the furor surrounding this case may have later led the Court, in Moore v. Dempsey (1923), to intervene on behalf of blacks convicted under similar circumstance in Arkansas.

In the same year that it denied due process to Leo Frank the Court gave blacks a small victory in the area of voting rights in Guinn v. United States (1915). In 1910 Oklahoma required that all voters pass a literacy test. The Court would probably have allowed this test, even if it was a pretext to deny blacks the right to vote. But a straight literacy test would have disfranchised a large percentage of the white population of the new state. The Sooner State therefore inserted a “grandfather clause” in the law that exempted all men from the literacy test if they, or a male ancestor, had been eligible to vote in 1867, which was before the adoption of the Fourteenth and Fifteenth Amendments. Because most blacks could not vote in 1867, the Court unanimously held that the law violated the Fifteenth Amendment by denying people the right to vote on the basis of race or previous condition of servitude.

The case had little practical effect, since the South—which included Oklahoma—found new ways to disfranchise blacks or simply administered literacy tests in a discriminatory manner so that illiterate whites could pass them while blacks with college degrees would fail them. Significantly, the U.S. Department of Justice brought this case on behalf of black voters in the state. This may have been politically motivated. When the Justice Department filed suit in 1912, William Howard Taft was president. Taft was a supporter of civil rights, but he also knew that he needed black Republican votes in Oklahoma if he was to carry that state in the presidential election. By the time Guinn reached the Supreme Court Taft was no longer in office, but the Justice Department nevertheless continued to litigate the case. Ironically, the winning attorney was John W. Davis, who would later defend segregation as the attorney for South Carolina in Brown v. Board of Education (1954).

Buchanan v. Warley.

In Buchanan v. Warley (1917) the Supreme Court heard the first case brought by the newly organized civil rights organization the National Association for the Advancement of Colored People (NAACP). Moorfield Storey, one of the leaders of the American bar, argued the case. At issue was a 1914 Louisville, Kentucky, city ordinance that prohibited blacks from buying houses on blocks where the majority of the residents where white and whites from buying houses on blocks where the majority of the residents were black. No one was forced to move under the law, but sales were restricted. In order to challenge the law William Warley, who was black, agreed to buy a house from Charles Buchanan, who was white and lived on a white-majority block. This was an entirely collusive suit; Buchanan was sympathetic to civil rights and was helping the NAACP. Thus after agreeing to buy Buchanan's house Warley refused to honor the contract, asserting that the law prohibited him from taking possession of the house. This allowed Buchanan, the white seller, to sue Warley for breach of contract.

Kentucky's highest court upheld Warley's claim that he could not purchase the house because it violated the Louisville ordinance. The U.S. Supreme Court refused to accept the argument that the Fourteenth Amendment protected only blacks. Similarly, it refused to apply the doctrine of Plessy to residential segregation. Quoting approvingly from Strauder v. West Virginia (1880), which had struck down a West Virginia law that prohibited blacks from serving on juries, the Court noted that the Fourteenth Amendment was

"designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation."

The Court went on to quote the 1866 Civil Rights Act: “All citizens of the United States shall have the same right in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” It further quoted from the Enforcement Act of 1870:

"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and no other."

Justice Day then asked, “In the face of these constitutional and statutory provisions, can a white man be denied, consistently with due process of law, the right to dispose of his property to a purchaser by prohibiting the occupation of it for the sole reason that the purchaser is a person of color intending to occupy the premises as a place of residence?” The answer was obviously that a law could not prevent the buyer and seller from exchanging property for money.

The Court rejected the idea that Plessy or Berea College applied to the case, because here there was no attempt to mix the races in a social setting. As it had done in Plessy, the Court asserted that it lacked any power to influence racial ideology in the nation and acknowledged that the “serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may be freely admitted.” Unlike in Plessy, however, the Court seemed to have concluded that it did not need to be complicit in this racism and declared that the “solution” to racial conditions in the nation “cannot be promoted by depriving citizens of their constitutional rights and privileges.”

This was a remarkable decision, the first to strike down a state law aimed at segregating the races. The language was powerful and might have signaled a new day for American race relations. But this was not to be. The decision was partially a result of the type of segregation at issue and the method of effecting the segregation. Buchanan v. Warley involved the right to buy and sell property—a right considered almost sacred by the Court. In addition the Court could make a reasonable distinction between property-ownership segregation and other forms. Blacks and whites need not socialize if they live on the same block, as they would if they attended the same school; they would not necessarily rub shoulders on the same street, as they would on the same streetcar or railroad car. The ruling was a victory for civil rights, especially for the fledgling NAACP, and along with Guinn can be seen as the beginning of a successful constitutional attack on segregation, but it was just a small beginning.

A series of cases in the 1920s illustrated the limits of the Court's willingness to interfere with segregation and racism. In Corrigan v. Buckley (1926) it undermined the value of Buchanan v. Warley by demonstrating that residential segregation could be achieved by private action—with court enforcement—even if it could not be achieved by actions of the state. Corrigan involved a private agreement among thirty-one landowners in Washington, D.C., who all signed a restrictive covenant that prevented them from selling their houses or land for twenty-one years. The Court unanimously upheld the covenant, thus preventing Irene Corrigan from selling her land to a black woman.

In three cases involving naturalization of aliens—Ozawa v. United States (1922), United States v. Thind (1923), and Toyota v. United States (1925)—the Court ruled that people from India and Japan could not become naturalized citizens. These decisions did not directly affect African Americans, but they reaffirmed that race was a legitimate category for exclusion in the nation.

Gong Lum v. Rice (1927), another case that did not directly affect blacks, sent a clear message to the American South that segregated education was permissible. The Lums were Chinese Americans living in the Mississippi Delta. Under a new state law, school officials assigned the Chinese American children to black schools instead of the white schools they had previously attended. Although the schools in Mississippi were separate, they had never been “equal,” and so Gong Lum sued to allow his American-born daughter, Martha, to attend the white school. Lum did not argue that segregation was unconstitutional, only that Chinese were not black and therefore could not be forced to attend black schools. The Court did not rule on segregation per se but did reaffirm that the states had the right to make racial classifications as they wished and that it was thus constitutional for Mississippi to divide children between white and nonwhite rather than between black and nonblack.

In Moore v. Dempsey (1923) the Court reversed the convictions of six blacks sentenced to death and many more sentenced to long terms in prison after mob-dominated trials in Arkansas. The first trial took forty-five minutes and the jury deliberated for only five minutes. Many of the prosecution witnesses were blacks who had been whipped until they agreed to testify against the other African Americans on trial. The attorney appointed to represent all the black defendants introduced no evidence, called no witnesses, and did not ask for a change of venue. The NAACP then entered the case to save these blacks from what amounted to a judicially sanctioned lynching. The Supreme Court ordered new trials for all the defendants. Justice Holmes, who had dissented in the Frank case, wrote the opinion of the Court. This case not only saved the lives of many innocent blacks but also indicated that the Court would be willing to prevent the most egregious miscarriages of justice that stemmed from the racism and segregation of the South.

At this time the Court decided two other cases that did not directly concern race or African Americans but had implications for race and law. In Buck v. Bell (1927) the Court allowed Virginia's forced sterilization of a poor white girl who had had a child out of wedlock as the result of a rape. Although the case had nothing to do with race, it signaled to the states—especially those in the South—that the Court would allow them to trample on the most fundamental human rights, and in ways that shock human dignity, if the states could present a rationale for doing so. In the next few decades thousands of blacks would be sterilized, denied proper medical care, used in immoral medical experiments, and mistreated by state agencies, all in the name of science and rationality. Buck v. Bell created a constitutional basis for this behavior.

On the other hand, Gitlow v. New York (1925), a case involving a Communist organizer, laid the groundwork for a constitutional revolution that would apply most of the Bill of Rights to the states through the due-process clause of the Fourteenth Amendment. This jurisprudence would be particularly useful to demonstrators, activists, others involved in the civil rights movement, and even the newspapers that reported on the movement. In the 1950s and 1960s the precedent set in Gitlow would give the civil rights movement the protection of the First Amendment and guarantee that blacks charged with violating state laws would have fair trials.

Nixon v. Herndon.

The judgment in Nixon v. Herndon (1927), a voting-rights case, was probably the most significant civil rights victory of the first three decades of the twentieth century, although, as with the Guinn ruling, southern states found a way around it. In Texas, as in most of the South at this time, the Democratic Party was the only viable political organization. General elections were almost always one-party affairs; local politics was almost always fought out within the party. In an effort to take meaningful political power away from blacks without openly violating the Fifteenth Amendment, Texas prohibited blacks from voting in primaries. When Charles Herndon, an election judge in El Paso, refused to allow Lawrence A. Nixon to vote, Nixon sued. The Texas courts dismissed the case, but the NAACP took it to the U.S. Supreme Court, where Nixon was represented by a stellar team of lawyers that included Moorfield Storey, Louis Marshall, and Arthur B. Spingarn, one of the founders of the NAACP.

In a short opinion Justice Holmes did not even reach the Fifteenth Amendment, concluding that the state law violated the Fourteenth Amendment's equal-protection clause. This was a mixed victory for civil rights. The Court struck down the white primaries, although Texas would circumvent this rule. The Court also indicated its discomfort with racial classifications but noted that they might be generally constitutional. Holmes ended his opinion by saying, “States may do a good deal of classifying that it is difficult to believe rational, but there are limits, and it is too clear for extended argument that color cannot be made the basis of a statutory classification affecting the right set up in this case.”

In 1932 Nixon was back before the Supreme Court. In response to Nixon v. Herndon, Texas had passed a new law that eligibility to vote in party primaries would be determined by the parties themselves. In this way the state hoped to avoid any “state action” in discriminating against black voters. The Democratic Party, as a private entity, then prohibited blacks from voting in primaries. When Nixon asked for a ballot to vote in the 1928 primary, the election judges refused to give it to him, asserting that he was not qualified under party rules. Once again Nixon sued, and the case reached the Supreme Court as Nixon v. Condon (1932).

The Supreme Court was unimpressed with the claim by Texas that the party, not the state, was discriminating. The Court found that “delegates of the State's power have discharged their official functions in such a way as to discriminate invidiously between white citizens and black.” The Fourteenth Amendment not only made such discrimination illegal but also placed “a duty upon the court to level by its judgment these barriers of color.”

Here, presumably, was a rule that would lead to black participation in state primaries. However, it was not to be. After the second Nixon case the legislature of Texas withdrew all state support for the primaries. The party primaries were to be run entirely by the parties, with no state facilities or election judges involved. In Grovey v. Townsend (1935) the Supreme Court upheld this system, on the grounds that the parties in Texas were now completely private. This was the last major decision by the Court upholding racial discrimination.

Shortly after its decision in Nixon v. Condon the Court ordered new trials for Ozie Powell and other black youths who had been convicted of raping two white girls outside of Scottsboro, Alabama. The trials had taken place in a lynch-mob atmosphere. Authorities in Scottsboro held nine trials in one day, resulting in nine convictions and eight death sentences. One of the defendants, a thirteen-year-old boy, was given a life sentence. The evidence against all the defendants was weak, and in the end one of the alleged victims would recant her testimony. In fact, no rape had taken place. In Powell v. Alabama (1932) the Supreme Court did not review the facts of these trials but reversed the convictions because the defendants did not have adequate legal counsel, in violation of the guarantees of due process in the Fourteenth Amendment and the right to counsel in the Sixth Amendment.

Alabama then retried and convicted the defendants, and they returned to the Supreme Court in Norris v. Alabama (1935), claiming that they had been denied a fair trial because there were no blacks in the jury pool. Once again the Court reversed, and once again Alabama retried and convicted the defendants, with a few blacks in the jury pools who were never chosen for the trials' jury panels. This subterfuge seemed to satisfy “due process,” even though it was clear that all the defendants were not guilty, because in fact no rapes had ever taken place. The governor of Alabama pardoned some of the defendants and commuted the death sentences to life in prison. A few remained in prison or on prison farms until the 1950s, their lives destroyed by the racism of the Alabama justice system and the failure of the Supreme Court to examine fully the unfairness of their trials.

The barbarity of southern justice came before the Court once again in Brown v. Mississippi (1936), in which it overturned the conviction of three black tenant farmers who had been convicted of murdering a white man. The only evidence against them was their own confessions, which they had given after being whipped and tortured by the county sheriff. This case was so outrageous that the appeal was brought by Earl Leroy Brewer, a former governor of the state. A unanimous Supreme Court threw out the convictions and the confessions as violating the due-process clause of the Fourteenth Amendment. In the wake of the Scottsboro case, the Court did not remand the cases for new trials but reversed the convictions and put an end to the persecution of the defendants.

The issue of southern barbarity in sentencing, if not in pretrial treatment, arose in Herndon v. Lowry (1937). The Court reversed the conviction of a black communist who had been convicted of attempting to overthrow the government of Georgia by organizing an integrated protest march of unemployed blacks and whites. Angelo Herndon, who was nineteen at the time of his arrest, was sentenced to eighteen to twenty years on a Georgia chain gang, which he seemed unlikely to survive. His appeal came to the Court as a free-speech case and was argued by Whitney North Seymour, a former official in the administration of Herbert Hoover and a leading Wall Street lawyer. The Court ruled, by a vote of five to four, that Herndon's actions were not an attempt to start an insurrection and that merely advocating communism was not a crime. The case, while about free speech, was also about race. Herndon was a threat to the political establishment of Georgia because he was black and an integrationist as well as because he was a communist. Moreover, his victory provided a precedent for future civil rights demonstrators.

In 1937 and 1938 the Court decided a number of cases that were not about race and did not involve blacks but were nevertheless important for later developments in civil rights. In National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) the Court upheld the power of Congress to regulate the national economy and protect the rights of workers. If the government could protect workers' rights then it might also be able to protect blacks' civil rights. Moreover, National Labor Relations Board marked the beginning of a revolution in the understanding of the commerce clause of the Constitution. Within a few years the Court would accept almost any congressional regulation of the economy, even if it had only an indirect relationship to interstate commerce. In the 1964 Civil Right Act Congress would use this notion of “commerce” to justify banning private discrimination in any public accommodation—such as a hotel, motel, or restaurant—because such businesses were involved in interstate commerce.

In Lovell v. City of Griffin (1938) the Court reversed the convictions of Jehovah's Witnesses who had violated an ordinance in Griffin, Georgia, by handing out religious pamphlets. This case had nothing to do with race, but like Herndon's case, it helped lay the groundwork for the constitutional protection of civil rights demonstrators two decades later.

At the end of its 1937–1938 term the Court, in United States v. Carolene Products Co. (1938), upheld a federal regulation of diary products that was unrelated to race and civil rights. However, in upholding this law Justice Harlan F. Stone provided, in a footnote, an interpretation of minority rights that became the basis of civil liberties and civil rights in the future. He declared that the legislature's power to regulate the economy was vast but that legislative power would be subject to “more exacting judicial scrutiny” if it affected “discrete and insular minorities.” This was the beginning of what would later be called “strict scrutiny,” which the court would apply not only to limitations on speech and freedom of religion but also to regulations involving race. The Court's application of strict scrutiny to laws involving race would lead to the end to all de jure segregation.

The Court's Assault on Segregation.

By the beginning of its 1938–1939 term the Supreme Court was beginning to reflect the changes of the Franklin Roosevelt era. Two of the most reactionary justices in history, Willis Van Devanter and George Sutherland, were gone. Their replacements, Hugo Black of Alabama and Stanley Reed of Kentucky, were both southerners but progressive New Dealers. On issues of race Black was particularly progressive. Although he had briefly joined the Ku Klux Klan in the 1920s, he was soon to become one of the Court's most ardent supporters of civil rights. He had seen racial discrimination and police brutality at close range while serving as a police-court judge in Alabama. He knew how profoundly wrong the social system of the South was, and he was prepared to lead the Court in a new direction that would protect the rights of all Americans, especially racial and religious minorities. Reed would be less comfortable with the expansion of civil rights, but in the end he would not oppose it. Although it was not recognized at the time, the first Monday of October 1938 marked the beginning of an extraordinary period of more than three decades in which civil rights and civil liberties would be expanded.

The addition of Black and Reed to the Court was only the beginning of a series of appointments that remade the Court and American constitutional law. With three exceptions every justice appointed between 1938 and 1967 was a firm opponent of segregation and a supporter of racial equality. The justices disagreed on jurisprudence, the proper remedies to end segregation, and how quickly to move against racism. At times they also disagreed about how to apply existing law when considering civil rights demonstrators who had been arrested for violating segregation laws or protesting existing conditions. But on the big question—whether the Court should finally enforce the three Civil War amendments in a way that would promote racial equality—there was substantial agreement.

By the end of the 1938–1939 term there were two more new faces on the Court: Felix Frankfurter and William O. Douglas. Then, in November 1939, Justice Pierce Butler, a diehard conservative, died. His replacement, Frank Murphy, was one of the strongest integrationists ever to sit on the Court; along with Stone and Charles Evans Hughes, there was now a solid majority for racial change. In the next few years the last of the old-guard reactionaries, Justice James Clark McReynolds, a segregationist from Tennessee, would leave the bench. President Roosevelt appointed one racial conservative, James Byrnes of South Carolina, but he stayed on the bench only for fifteen months. Roosevelt also added two more racial liberals, Wiley Rutledge and Robert Jackson.

Turnover on the Court would continue in the next decade: Harry Truman appointed four justices and Dwight Eisenhower appointed five. Presidents John F. Kennedy and Lyndon Johnson each made two appointments. With the exception of Reed, the briefly serving Byrnes, and Chief Justice Fred Vinson, appointed by Truman, all of these appointees were committed to racial integration in one form or another. Even Vinson and Reed would vote for integration, although not always with enthusiasm.

Several justices in this period would become enthusiastic supporters of racial equality. Three—Black, Tom Clark, and Abe Fortas—were white southerners who brought to the Court an understanding, born of personal experience, of the horrors and indignities of segregation. William O. Douglas, the most vigorous defender of individual rights ever to sit on the Court, brought a sharp mind and a sharper pen to the task of tearing down the walls of segregation. Chief Justice Earl Warren and William Brennan, both Eisenhower appointees, would become the leaders of the Court as it moved to dismantle segregation. The last justice appointed in this period knew the most about segregation. On 2 October 1967, Thurgood Marshall became the first African American to sit on the Court. He came to the Court after a long career as the leading attorney for the NAACP. Marshall thus helped shape the law as both lawyer and justice.

Missouri ex rel. Gaines v. Canada.

The shaping of this law began with Missouri ex rel. Gaines v. Canada (1938). Lloyd Gaines, a black resident of Missouri, had sought admission to the University of Missouri School of Law in Columbia, the only public law school in the state. Under a Missouri statute Gaines could have asked the state to pay the out-of-state tuition for a public law school in of the four adjacent states that accepted black students: Iowa, Illinois, Kansas, and Nebraska. The state also argued that it planned to open a law school at Lincoln University, the state-funded school for blacks, from which Gaines had received his undergraduate degree. But Gaines wanted to go to law school in the state where he planned to practice, and he did not want to wait until the state opened a law school for blacks. He applied to the University of Missouri and was rejected solely on the basis of his race.

This was exactly the sort of case the NAACP wanted to test the state segregation laws. Charles Hamilton Houston, the nation's first great black civil rights lawyer, eagerly represented Gaines. Assisting him was Leon A. Ransom, who would soon emerge as one of the core of black civil rights litigators of the period. For the first time since Plessy v. Ferguson the U.S. Supreme Court took seriously the idea that separate but equal required some sort of actual equality. The Missouri Supreme Court had denied Gaines relief, accepting the argument of the state that he could receive as good a legal education in the neighboring states and that the costs would be same. Speaking for a seven-to-two majority, Chief Justice Hughes rejected this argument:

"We think that these matters are beside the point. The basic consideration is not as to what sort of opportunities other States provide, or whether they are as good as those in Missouri, but as to what opportunities Missouri itself furnishes to white students and denies to negroes solely upon the ground of color. The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups within the State…. By the operation of the laws of Missouri a privilege has been created for white law students which is denied to negroes by reason of their race. The white resident is afforded legal education within the State; the negro resident having the same qualifications is refused it there and must go outside the State to obtain it. That is a denial of the equality of legal right to the enjoyment of the privilege which the State has set up, and the provision for the payment of tuition fees in another State does not remove the discrimination."

Southern states had traditionally argued that states' rights entitled them to maintain segregation. Hughes did not deny this, but reminded Missouri that the Constitution required that this segregation be based on “equal laws.” Thus he deftly turned the states'-rights argument back on Missouri, noting that “the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained.” He reminded Missouri that each state was

"responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system."

Under this analysis Missouri could not turn to Iowa or Illinois to fulfill its obligation to its own citizens. If the state provided law schools for white students, it had to provide them for black students. It could not defer that obligation to some future law school yet to be built or foist it off on a neighboring state. Gaines was therefore entitled to enter the only state-sponsored law school in Missouri.

The Gaines decision was potentially a huge victory for civil rights. If fully implemented it would have required the integration of graduate and professional schools throughout the South, as well as some undergraduate schools. It might even have required that all-white high schools be integrated if there were no nearby high schools for blacks. Gaines would soon become a wedge for breaking down the walls of segregation at the highest levels of education. For Lloyd Gaines, however, the victory was short lived. He did not enroll in the University of Missouri; in fact, shortly after the case he simply disappeared. Some scholars speculate that he left the state because he feared he could not survive at the all-white law school. Others believe he was murdered by the Ku Klux Klan or some other white terrorist organization.

In Chambers v. Florida (1940) a unanimous Court reversed the murder convictions of three young blacks who had confessed after four days of indignities, harassment, and around-the-clock interrogations. Justice Black, who had seen this kind of treatment when he was a trial-court judge in Alabama, wrote the opinion, which condemned such police practices. Later that year the Court unanimously overturned the rape conviction of a black in Smith v. Texas (1940) because blacks were excluded from jury service in the county. These decisions were similar to those the Court had reached in the 1930s. They illustrate that, especially in criminal matters, securing due process for blacks in the segregated South would be a difficult and slow endeavor. Indeed, fourteen years later, in Hernandez v. Texas (1954), the Court would overturn the conviction of a Mexican American who had been tried for murder in a county where Hispanics were systematically excluded from serving on juries.

In another restrictive covenant case, Hansberry v. Lee (1940), the Court voided a restrictive covenant that prohibited the sale of a house to a black. Anna Lee sued to prevent Carl Hansberry, an African American real estate broker, from taking ownership of a house he had bought from a bank after a foreclosure. Lee's argument was that the white owners in the housing development had agreed not to sell their land to blacks. For technical reasons the Court could have decided against Hansberry. But Justice Stone, writing for a unanimous Court, refused to be bound by a rule that in effect mocked due process. The result in this case shows the Court's willingness to read law in favor of civil rights. The case is also notable because the daughter of the plaintiff, Lorraine Hansberry, would later write a play about it, A Raisin in the Sun (1959).

In a case not related to race, Thornhill v. Alabama (1940), the Court overturned the conviction of a picketer arrested for disturbing the peace. This labor case would have important implications for civil rights demonstrators. Similarly, in Cantwell v. Connecticut (1940) the Court applied the free-exercise clause of the First Amendment to the states for the first time. This was the beginning of an expansion of the Bill of Rights that would significantly help African Americans in the next two decades. In the early 1940s the Court also broadened the scope of the commerce clause, giving its blessing to federal legislation regulating the economy. In United States v. Darby Lumber Co. (1941), for example, the Court upheld the Fair Labor Standards Act, which regulated maximum hours and overtime. Nearly a quarter of a century later Congress would rely on this expanded notion of the commerce power to protect civil rights when it passed the Civil Rights Act of 1964.

In Edwards v. California (1941) the Court held that poor people had the right to move from state to state and that California could not prohibit an unemployed Texan from moving to the state. Once again the commerce clause was used to prevent states from mistreating people. Decades later the Court would reaffirm this interpretation of the Constitution in Saenz v. Roe (1999), involving poor people moving from Oklahoma to California.

A commerce-clause case that had more racial significance was Mitchell v. United States (1941), on the eve of World War II. Arthur W. Mitchell, the only black then sitting in the U.S. Congress, filed a complaint with the Interstate Commerce Commission after he was forced to move from a sleeper car to a second-class car while traveling by train in Arkansas. He had purchased a first-class ticket in Chicago and was forced out of that seat when the train entered Arkansas. The Court ruled that segregation on interstate trains violated the commerce clause. This was a great victory for blacks, although one that would take years to implement fully, indicating that litigation alone was insufficient to guarantee rights. Something more was needed, as suggested by the protests led by Martin Luther King Jr. Nonetheless, the Mitchell decision would set the stage for litigation to end the segregation of interstate buses and eventually of all public transportation.

United States v. Classic (1941) was a voting-rights case that did not concern race but was profoundly important for giving blacks political power. The federal government prosecuted Patrick Classic for vote fraud in a Louisiana primary. In upholding the conviction the Court held that voting in a primary was a fundamental right protected by the Constitution. The implications of this case were clear to the NAACP: if whites had a fundamental right to a fair primary election then blacks had a fundamental right to vote in primaries as well. Three years later, in Smith v. Allwright (1944), the Supreme Court would reach exactly this conclusion. This lawsuit, brought by the NAACP, led the Court finally to declare that the white primary was unconstitutional and that the Texas Democratic Party could no longer hide behind its claim that it was a private organization and thus could limit its membership to whites.

Between Classic (1941) and Smith (1944) the Court did not hear any significant cases involving blacks. In Hirabayashi v. United States (1943) it upheld a curfew against Japanese Americans in the wake of the attack on Pearl Harbor. A year later, in Korematsu v. United States (1944), it upheld the internment of more than 100,000 Japanese Americans during the war. Both decisions were significant for their approval of using race as a basis for discrimination at the federal level. At the same time the cases contained language that suggested that using race to regulate people was fundamentally wrong. A concurring opinion in Hirabayashi warned against the constitutionalization of “racism,” and in Korematsu the majority opinion declared that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” and could be upheld only after “the most rigid scrutiny.”

This standard would not help the Japanese Americans during the war, but afterward it became a powerful weapon for those fighting segregation. Indeed, since Korematsu, whenever the court has subjected a government regulation to “rigid scrutiny” that regulation has been struck down.

During the war the Court expanded freedom of speech for dissidents, labor unions, and religious minorities—precedents that would be useful to blacks after the war. In Skinner v. Oklahoma (1942) the Court reversed a decision ordering the forced sterilization of a convict, thus moving toward greater protection of individual liberties. However, in Betts v. Brady (1942) the Court refused to overturn the felony conviction of a defendant who had not had an attorney at his trial. In Powell v. Alabama (1932) the Court had overturned death sentences for the Scottsboro Boys because they did not have adequate counsel. But in Betts, by a vote of six to three, the Court refused to extend this rule to noncapital cases. This case did not involve blacks—Betts was white—but the precedent would nevertheless be harmful to blacks because they were poorer than whites and thus less able to afford counsel if arrested.

As World War II ended the Court heard yet one more case involving southern brutality. It described the facts of Screws v. United States (1945) as “a shocking and revolting episode in law enforcement.” Sheriff Claude Screws of Baker County, Georgia, and two deputies arrested a black man, Robert Hall, for allegedly stealing a tire. They handcuffed him and beat him so badly that he soon died. The U.S. Department of Justice, dusting off Reconstruction-era statutes, prosecuted Screws and his deputies for violating Hall's civil rights “under color of law.” By a vote of five to four the Supreme Court ordered a new trial for Screws to determine whether his acts were “willful,” as the statute required. Screws had argued that the civil rights laws should be struck down for vagueness. But the Court did not do this; it allowed the government to use the statute to retry Screws.

The long-term implication of this case was clear. If the Justice Department framed its prosecutions with care, it could use the old civil rights laws to force change in the South. Moreover, this was a clear signal to Congress that it could pass new, clearer legislation to protect black civil rights, which it did in 1964 and 1965.

Returning Veterans.

During World War II millions of African Americans served in the armed forces and worked for the war effort as civilians. Returning veterans were no longer willing to accept second-class citizenship. At the national level the NAACP began to plan a strategy to challenge segregation. At the local and individual levels many blacks acted on their own to challenge racism. The Supreme Court would soon become the nation's most important forum for the civil rights movement.

In Morgan v. Virginia (1946) the Court overturned the conviction of a black woman who refused to move to the back of a bus when it crossed from Maryland into Virginia. Consistent with its earlier decision in Mitchell v. United States (1941) the Court ruled that Virginia violated the commerce clause by trying to regulate where blacks and whites could sit on buses that traveled interstate routes. This was the beginning of an aggressive NAACP strike at segregation in the upper South and in interstate commerce. Two years later, relying on the precedent in Gaines v. Canada (1938), the Court, in Sipuel v. Oklahoma State Board of Regents (1948), ordered the University of Oklahoma to admit Ada Lois Sipuel to its law school because the state did not provide a law school for blacks.

In the same term the Court upheld a Michigan civil rights law that banned segregation on all public conveyances. The case involved a ship that carried passengers from Detroit to an amusement part in Canada. The Bob-Lo Excursion Company, which owned the ship, refused to allow a black on its boat. The company argued that under Hall v. DeCuir (1878) and the recently decided case of Morgan v. Virginia (1946), a state could not regulate a boat that engaged in interstate or international commerce. However, in Bob-Lo Excursion Co. v. Michigan (1948) the Court rejected this argument, concluding that a law requiring equal accommodations placed no burden on interstate commerce.

In two subsequent cases, Shelley v. Kraemer (1948) and Hurd v. Hodge (1948), the Court determined that no state court could enforce a racially restrictive covenant in housing. Although private parties might still sign restrictive covenants, these contracts were not enforceable in the Court and thus were of no value. In the same term, in Takahashi v. Fish and Game Commission (1948), the Court struck down a California law that prohibited Japanese immigrants from obtaining commercial fishing licenses in the state, even if they were permanent residents of the United States. This case reaffirmed that the Court would no longer accept race as a justification for discrimination.

On 5 June 1950 the Court unanimously decided three cases that set the stage for a final assault on state-mandated segregation. In Henderson v. United States it ruled that railroads could not segregate dining cars on interstate trains. Since southern whites placed a high value on segregating restaurants, water fountains, and any other place that blacks might eat or drink, this case was a significant blow to segregation. McLaurin v. Oklahoma State Regents for Higher Education involved a black man who had been admitted to Oklahoma State University for graduate school but was forced to sit in isolation in his classes, in the library, and elsewhere in the school. The Court ordered the university to cease these practices; integration meant just that, not some sort of segregation once blacks arrived on campus.

The third case, Sweatt v. Painter, undermined the southern states' potential to maintain segregation in any institution of higher learning. Herman Sweatt, a black postal employee, had been rejected from the University of Texas School of Law solely because of his race. To avoid committing the violation defined by the Sipuel precedent, Texas immediately opened a law school for blacks in the basement of the state capitol. Thurgood Marshall, who represented Sweatt, argued that this instant law school for blacks could never be “equal” to the University of Texas School of Law, with its huge library, large endowment, many famous professors, and important alumni, including at the time one of the members of the Court, Justice Tom Clark. The Court could understand this argument and for the first time acknowledged that under some circumstances separate could never be equal. In another unprecedented move, the Court directly ordered a segregated school to admit a black student immediately.

Super Chief.

In the next three years a series of cases involving elementary and secondary school segregation from Virginia, Delaware, South Carolina, the District of Columbia, and Kansas made their way to the Court, consolidated as Brown v. Board of Education of Topeka, Kansas (1954). The Court chose to make the Kansas case, brought on behalf of Linda Brown, the lead one so that it would not appear to be attacking the South. The Court heard oral arguments in 1952 but was hopelessly divided about how to proceed. All the justices understood that segregation was fundamentally wrong, but a number were afraid to tackle such a huge issue. Chief Justice Vinson would not support a decision to end segregation in public schools, and, more important, he was incapable of leading the Court to a solution of the problem.

The Court ordered reargument for December 1953 and asked the attorneys to consider the historical meaning of the Fourteenth Amendment with regard to school segregation and to suggest remedies if the Court found that segregation violated the Constitution. A month before the Court was to reconvene for the new term, Vinson died, leading Justice Frankfurter to observe, “This is the first indication I have ever had that there is a God.” President Eisenhower immediately nominated Governor Earl Warren of California to be chief justice. Warren proved to be the right man at the right moment. He healed rifts within the Court and gradually convinced the justices that they needed to show a united front in the case. On 17 May 1954, to the shock of many, Warren announced the Court's unanimous decision, holding that “in the field of public education the doctrine of ‘separate-but-equal’ has no place. Separate educational facilities are inherently unequal.”

Many observers had expected a decision calling for an end to segregation, but few expected such a sweeping result and almost no one anticipated a unanimous decision with a single opinion and no concurrences. This powerful result was due to Warren's leadership and political skills. With good reason he would be called “Super Chief” by many scholars.

Brown was probably the most important decision of the century. In a compact and easily read opinion Warren declared that public schools could no longer be segregated. He carefully limited his decision to schools, but in fact most Americans understood that this decision was the death blow to segregation. For example, a week later the Court, in Muir v. Louisville Park Theatrical Association, ordered Louisville, Kentucky, to integrate its public golf course, since it did not provide a course of equal quality for blacks.

Supreme Court Justices, 1953 Term. On 17 May 1954 the Supreme Court unanimously decided the case of Brown v. Board of Education and declared that “in the field of public education, the doctrine of ‘separate-but-equal’ has no place.” The decision set the stage for ending legal segregation in public schools and paved the way for overturning numerous cases, including Plessy v. Ferguson (1896), and ending all legal segregation. Front row, left to right: Felix Frankfurter, Hugo Black, Chief Justice Earl Warren, Stanley Reed, and William O. Douglas. Back row: Tom Clark, Robert H. Jackson, Harold Burton, and Sherman Minton.

New York World–Telegram and the Sun Newspaper Photograph Collection, Prints and Photographs Division, Library of Congress

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Ending segregation in public schools and elsewhere in society turned out to be more complicated than declaring it unconstitutional. In Brown v. Board of Education of Topeka, Kansas (1955), known as Brown II, the Court decided to allow local school districts to set up programs for desegregation, which would be supervised by the federal district courts. Warren, perhaps naively, believed that the South would comply with the decision and follow the law of the land, with what he called “all deliberate speed.” However, southerners interpreted this phrase to mean that they should delay as long as possible. Integration would come slowly in much of the South, as politicians and school boards developed an amazing array of tactics to thwart Brown.

While the district courts dealt with schools, blacks throughout the South began to protest segregation in other areas of life. With one exception the Court moved rapidly to end segregation when cases reached it. The one exception centered on interracial marriage. In Naim v. Naim (1955) the Court simply refused to hear a case challenging Virginia's law that prohibited interracial marriage. The couple, a Chinese man and a Caucasian woman, had married outside the state. Mrs. Naim later sought an annulment on the grounds that the marriage was illegal. When Virginia annulled the marriage, Naim appealed, and the Supreme Court ducked the issue on a technicality.

The day before it refused to decide the Naim case the Court summarily ruled, in Gayle v. Browder (1956), that the system in Montgomery, Alabama, of segregating public buses was unconstitutional. This case grew out of the Montgomery Bus Boycott, which made Rosa Parks a national civil rights hero and made Martin Luther King Jr. the de facto leader of the civil rights movement in the South. With the Court's decision the boycott ended and the buses were integrated. This decision silently overturned Plessy v. Ferguson (1896). Separate but equal in public facilities was no longer constitutionally permissible.

As the civil rights movement gained momentum southern states fought back. Alabama claimed that the NAACP had not complied with various state regulations and demanded that the organization give the state a list of all its members in Alabama. This would have been disastrous for the members, who might have lost jobs or been attacked by white terrorists. In NAACP v. Alabama (1958) the Court found that the right of free association that was derived from the First Amendment protected the NAACP and its members from this sort of state interference.

In other cases, such as Bates v. Little Rock (1960), Louisiana v. NAACP (1961), and NAACP v. Button (1963), the Court would protect the nation's most effective civil rights organization from legal harassment by southern states. In Cooper v. Aaron (1958), a case stemming from the desegregation of Little Rock's public schools, the Court unanimously reaffirmed its commitment to integration. In an unusual step the Court issued a per curiam opinion—one that spoke for the Court as a whole with no individual justice identified as the author—but each of the nine justices signed the opinion to indicate his support for ending segregation.

From 1960 to 1971 the Court heard a stunning number of cases involving race, race discrimination, and segregation. In case after case it came down on the side of civil rights. Often its jurisdiction was stretched in ways that led to dissents by some of the more conservative members, such as Frankfurter and John Marshall Harlan II (grandson of the author of the Plessy dissent). For example in Burton v. Wilmington Parking Authority (1961) the Court held by a vote of six to three that a privately owned restaurant could not refuse to serve blacks because the restaurant rented its space from a city-owned parking garage. Frankfurter, Harlan, and the Eisenhower appointee Charles Whittaker dissented. This case preceded the 1964 Civil Rights Act, which outlawed segregation in all restaurants.

In Garner v. Louisiana (1961) the Court overturned the convictions of blacks who had participated in sit-in protests at segregated restaurants. The demonstrators were polite and quiet but refused to leave when asked to do so by the police. The Court, this time unanimously, concluded that sitting in a restaurant while waiting to be served did not constitute disturbing the peace and that the police therefore could not lawfully ask the blacks to move. The Court would later overturn similar convictions in Peterson v. City of Greenville (1963) and Bell v. Maryland (1964), although in Bell three justices dissented on the grounds that protesters could be punished for invading private property. Similarly, in Edwards v. South Carolina (1963) the Court protected the free-speech rights of civil rights demonstrators, even when their protests caused violent reaction on the part of segregationists. Here the Court reshaped First Amendment law to protect civil rights. These decisions, and others, sent a clear message to civil rights demonstrators throughout the South that the Supreme Court would stand by them.

The Court also lost patience with southern school officials who refused to accept integration. In Goss v. Board of Education of the City of Knoxville, Tennessee (1963) it considered a regulation that allowed a white student to transfer to a different school if assigned to a school that had previously been all-black or a black student to transfer if assigned to what had been a white school. The board hoped that social and economic pressure would cause blacks to stay “voluntarily” in the formerly black schools and whites would transfer back to the formerly all-white schools. The Court unanimously rejected this attempt to defeat integration. Likewise, after officials in Prince Edward County, Virginia, closed all its public schools to avoid integration, the Court, in Griffin v. County School Board of Prince Edward County (1964), unanimously ordered the county to reopen the schools. Justice Black's opinion noted that “the time for mere ‘deliberate speed’ has run out” and warned that the federal courts would take over the local schools and monitor taxing and spending if the county did not comply.

By 1964 the Court had struck down almost all forms of state-mandated segregation. Congress passed a sweeping civil rights act that essentially ended all segregation in public places. Truly private institutions, such as eating clubs, golf courses, and country clubs, could still be segregated so long as they were not open to the general public, but almost everything else in society—including restaurants, hotels, theaters, elevators, drinking fountains, public transportation, and hospitals—could no longer be segregated. Congress passed this law under its “commerce powers,” arguing that segregation interfered with interstate commerce and therefore could be prohibited by an act of Congress.

In Heart of Atlanta Motel v. United States and Katzenbach v. McClung, both decided on 14 December 1964, the Court unanimously upheld the 1964 act on the basis of the commerce clause and the Fourteenth Amendment. It noted that, since 75 percent of the guests at the Heart of Atlanta Motel were from out of state, the motel was subject to laws regulating interstate commerce even though it did all its business in Atlanta. McClung involved Ollie's Barbeque, a restaurant in Birmingham, Alabama. The facts that it was not near an interstate highway and sold mostly to local residents did not exempt the business from the obligations of the commerce clause. Ollie's meat and the ingredients of his barbeque sauce came from other states, and this was a sufficient connection to interstate commerce to allow Congress to regulate the business. Justice Douglas, in a concurring opinion joined by Justices Black and Arthur Goldberg, asserted that Congress had the power under the enforcement provisions of the Fourteenth Amendment to make sure that all Americans had equal access to public accommodations everywhere in the nation. These three justices were prepared to abandon at last the public–private distinction the Court had established in 1883 when it struck down the Civil Rights Act of 1875.

A year later Congress passed the Voting Rights Act of 1965, which gave the federal government the power to monitor and even run elections throughout the South, as well as in other places where there appeared to be discrimination in voting. Among other things the law suspended all literacy tests in several states. South Carolina challenged the law in South Carolina v. Katzenbach (1966), and in an unusual move the Supreme Court heard the case on original jurisdiction—implementation of the Voting Rights Act was simply too important to be allowed to fester in the lower courts. The Court upheld the law.

Almost immediately federal officials began to register voters in the South, and within five years the number of black voters in the region had nearly doubled; in the deep South the growth was even more impressive. More important, by 1969 there were more than five hundred black elected officials in the South, including a number of county sheriffs and mayors. The Voting Rights Act affected states beyond the South as well. In Katzenbach v. Morgan (1966) the Court struck down New York State's requirement that voters be literate in English. This opened the polling booths to thousands of American citizens from Puerto Rico who had migrated to New York.

For the rest of the decade the Court continued to expand civil rights. In Loving v. Virginia (1967) it finally decided that bans on interracial marriages violated the equal-protection clause of the Fourteenth Amendment. The issue that had been too hot for it to handle twelve years earlier was now decided by a unanimous Court. In Shuttlesworth v. Birmingham (1969) it overturned the conviction of the minister and civil rights leader Fred Shuttlesworth for organizing a protest march without getting a permit from the city. In Street v. New York (1969) it reversed the conviction of a man who had burned a flag to protest the shooting of the civil rights activist James Meredith. Although decided on First Amendment grounds, this was an example of how the Court facilitated the development of civil rights through civil liberties as well as through application of the commerce and equal-protection clauses.

Earlier in the decade, in New York Times v. Sullivan (1964), the Court had moved to protect the press from vindictive libel suits by disgruntled politicians. Although generally seen as a case about freedom of the press, it was also a civil rights case. L. B. Sullivan was a commissioner in Montgomery, Alabama, and his lawsuit stemmed from an advertisement taken out by supporters of Martin Luther King Jr. In Bond v. Floyd (1966) the Court upheld the right of the civil rights activist Julian Bond, who had been prevented by the Georgia House of Representatives from taking his seat because he had criticized the war in Vietnam. The case was thus decided on First Amendment grounds, but the issue went to the heart of the civil rights movement; the Court would not allow a white-majority state legislature to refuse to seat blacks on the basis of their political statements.

In this decade the Court also expanded protection for criminal suspects. In Gideon v. Wainwright (1963) it finally extended the logic of Powell v. Alabama (1932), by requiring that counsel be appointed for all criminal defendants who cannot afford to hire an attorney. Clarence Earl Gideon was a white man, but the decision in his case would give great protection to black defendants. By that time the only states that did not automatically provide counsel to indigent defendants were in the Deep South, where mistreatment of blacks by the police was most prevalent. In Escobedo v. Illinois (1964) and Miranda v. Arizona (1966) the Court finally prohibited police brutality in the interrogation of criminal suspects. These cases involved Hispanics, but the outcomes clearly also protected African Americans, who had long been the victims of brutality at the hands of southern urban policemen and rural sheriffs.

Beyond Jim Crow.

In 1968 the presidential candidate Richard M. Nixon vowed to remake the Court into a conservative body that would undo the progressive decisions of the Warren Court. Much of Nixon's focus was on criminal procedure, but there was also a clear racial element to his attack. After he was elected Nixon developed a “southern strategy” to bring white southerners into the Republican Party by changing the direction of civil rights. One of the four justices he appointed, William Rehnquist, would emerge as the Court's strongest opponent of civil rights innovations. Rehnquist was a conservative political activist before going to the Court and had been hostile to minority rights. In the next three decades he was often the lone dissenter in civil rights cases; at other times he led a five-justice conservative majority against civil rights plaintiffs.

More moderate, but still no great friends of civil rights, were Lewis Powell and Chief Justice Warren Burger. Another of Nixon's appointees, Harry Blackmun, began as a conservative in racial matters but quickly altered his views, perhaps because from his vantage point on the Court he gained a wider perspective on law and society. Gerald Ford's only appointee, John Paul Stevens, increasingly supported civil rights after reaching the bench. Ronald Reagan appointed Sandra Day O'Connor, who proved to be a flexible pragmatist and moderate on almost all issues. Sometimes she would vote with conservatives, but often she would oppose them. Unlike Reagan's subsequent appointees, especially Antonin Scalia, O'Connor supported moderate forms of affirmative action.

The most controversial justice in this period was Clarence Thomas, an African American known for his conservative views, appointed by George H. W. Bush to replace Thurgood Marshall. In the 1960s and 1970s Thomas won scholarships to Holy Cross and Yale Law School because both of these eastern institutions were trying to diversify their student bodies. He was, in effect, an “affirmative action baby” but felt that it was assumed he did not deserve his place on academic merit. By the time he reached the U.S. Supreme Court—only the second African American to do so—he was a diehard opponent of affirmative action. His confirmation was opposed by almost every leading civil rights organization and virtually every significant black leader in the country.

By 1992 the Court was staffed by eight justices appointed by Republicans and was more conservative than any Court since the mid-1930s. Nixon, Reagan, and Bush succeeded in moving the Court to the right, although perhaps not as far as they had hoped. In the 1980s and 1990s justices appointed by Reagan and Bush would push the Court further to the right and in the process change the nature of civil rights jurisprudence. President Bill Clinton's two appointments to the Court could not alter this shift.

By the end of the 1960s the fight against de jure segregation was mostly won, although remnants of segregation would exist for decades. More difficult to undo was the economic and social segregation that had developed under the Jim Crow system of the previous hundred years and remained after the legislation creating the segregation had been struck down or repealed. In America blacks were disproportionately poor, undereducated, more likely to be arrested and imprisoned, and less likely to be hired or be promoted on the job. Schools were no longer segregated because of laws, but they remained segregated because of housing patterns, population distribution, and economic forces. Starting in the 1970s the Court began to hear cases that centered on these issues. No longer was it united in its jurisprudence or its views on racial issues.

The decade's first economic cases seemed to continue the civil rights thrust of the 1960s. In Goldberg v. Kelly (1970) the Court, which had only one new, Nixon-appointed justice, provided that indigents could not be removed from welfare roles without a due-process hearing. Goldberg was not a race case per se, but it had important implications for African Americans, who were disproportionately poor and on public assistance.

In Griggs v. Duke Power Co. (1971) the Court unanimously supported blacks who claimed that Duke Power discriminated in hiring and promotions by employing only high school graduates with satisfactory scores on aptitude tests for most high-paying blue-collar jobs, even though a high school diploma was not necessary for job performance. Under school segregation southern blacks had been less able to obtain high school educations, and thus the diploma and test-score requirements reinforced the legacy of segregation by preventing blacks from acquiring better jobs. The Court held that it did not matter whether Duke Power intended to discriminate against blacks; what mattered was that the company's policy led to job discrimination.

This unanimity was continued in Swann v. Charlotte-Mecklenburg County Board of Education (1971), in which the Court required the overwhelmingly white schools in the county to integrate with black-majority schools in the city. Chief Justice Burger noted that had there been “no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes.” But here the local and state governments had created segregation in the first place, and so it was necessary to use busing and pupil assignments to undo the results of this segregation.

In Moose Lodge v. Irvis (1972) the Court abandoned its persistent support for integration. The case involved a private club—a lodge for local members of a fraternal order—that refused to admit blacks or serve them as guests of lodge members. The lodge held a Pennsylvania liquor license, and the state strictly limited the number of licenses it would issue in any county. Thus, the plaintiffs argued, there was sufficient state action in issuing a scarce resource—the liquor license—to a restaurant that practiced segregation. Six justices, including all four recently appointed by Nixon, held that no state action was involved in the discrimination and that the Moose Lodge, as a private club, was free to discriminate.

In San Antonio Independent School District v. Rodriguez (1973) the Court refused to consider the connection between race and economics in schooling. San Antonio, Texas, had seven separate school districts, which were funded by local property taxes. The result was that some parts of the city had much better schools than others, and not surprisingly the Hispanic and black schools had the fewest resources. The majority opinion was held by the four Nixon justices and one Eisenhower appointee.

The Court was now a moderate to conservative institution, and ending racial discrimination was no longer a high priority. However, it had not turned against ending de jure segregation. The Court sided with minority plaintiffs in Keyes v. School District No. 1, Denver, Colorado (1973) because it was clear that public officials in this northern state had intentionally created a segregated school system. Similarly, when a private school that operated as a business refused to enroll blacks, the Court, in Runyon v. McCrary (1976), found in favor of black plaintiffs. But in Milliken v. Bradley (1974) the Court, by a five-to-four vote—each justice voting as he had in Rodriguez—refused to order the largely white Wayne County suburban schools to integrate with the largely black Detroit public schools. Local schools were more important to Chief Justice Burger than was integration.

The most divisive civil rights case of the decade was probably Regents of the University of California v. Bakke (1978). The opinion of the Court was written by Justice Powell, but he was the only member of the Court to agree with the entire opinion. Four conservative justices joined Powell to strike down an affirmative action program that set aside a few seats in each class at a state medical school for minority applicants. The university argued that this was necessary to remedy past discrimination and to provide sufficient doctors to serve the medical needs of minority communities. The Court disagreed, concluding, by a five-to-four vote, that quotas violated the rights of nonminority students. While striking down the university's affirmative action program, Powell also concluded that universities could consider race, ethnicity, and economic circumstances when making admissions decisions. In this the four justices who had dissented from the first part of the opinion joined Powell. This part of the decision allowed for an approach to affirmative action that allowed some flexibility in admissions.

The fractured Court in Bakke illustrates how complex, confusing, and uncertain civil rights issues had become. This confusion remained for the next two and a half decades, although with an increasingly consistent shift against affirmative action and civil rights plaintiffs. Washington v. Davis (1976) involved a test used by the Washington, D.C., police department for hiring new officers that seemed disproportionately to favor whites and apparently bore no relationship to police work. The Court refused to strike down the test, even though to many observers this case seemed a reprise of Duke Power. In United Steelworkers of America v. Weber (1979), however, the Court allowed a union and a steel company to agree to a voluntary form of affirmative action to promote more minorities.

In City of Mobile v. Bolden (1980) the Court refused to dismantle the system used by Mobile, Alabama, to elect at-large members of the city council, even though the effect of the system was to prevent blacks from winning elections. But in City of Rome v. United States (1980) the Court refused to allow the city of Rome, Georgia, to changes its voting districts because the Justice Department believed these changes would dilute black voting power.

The Court continued its case-by-case approach to civil rights without much of a clear policy. City of Memphis v. Greene (1981) involved the decision of the city to close a street that had run through a white neighborhood and been used by black residents to drive across the city. The Court of Appeals had found that this street closing had the effect of creating segregation within the city and was designed to prevent blacks from driving through a white neighborhood. The U.S. Supreme Court ruled that there was no proof that the city intended to harm blacks and thus reversed the lower courts and found in favor of the city. In dissent Justice Thurgood Marshall criticized the Court's refusal to look closely at the evidence of a discriminatory intent.

It seems likely that had a case like City of Memphis v. Greene reached the Court a dozen years earlier the outcome would have been different. However, a year later, in Washington v. Seattle School District No. 1 (1982), the Court sided with civil rights plaintiffs in a school desegregation case despite the fact that there was no history of segregation or intent to segregate in Seattle. Where institutions openly intended to discriminate, the Court remained firmly integrationist, however, and thus in Bob Jones University v. United States (1983) it upheld the decision of the Internal Revenue Service to deny a tax exemption to Bob Jones University, which openly discriminated against blacks.

The inconsistency of the Court in this period is also apparent in cases involving criminal law and race. In Batson v. Kentucky (1986) it overturned the conviction of a black man because the prosecutor had systematically removed black jurors from the pool by using his preemptory challenges. The Court ruled that this blatantly racist tactic violated equal protection. However, in McCleskey v. Kemp (1987) the Court, by a vote of five to four, rejected overwhelming statistical evidence that blacks who were convicted of killing whites were more likely to receive death penalties than blacks or whites convicted of killing blacks. It refused to allow this disparity in sentencing to affect Warren McCleskey's death sentence.

By the time of McCleskey the Court's conservative majority seemed to be on the verge of rejecting most civil rights clams. In City of Richmond v. J. A. Croson Co. (1989) it banned the affirmative action program of Richmond, Virginia, which was designed to provide minority businesses with a greater opportunity to win government contracts. In Adarand Constructors v. Peña (1995) it applied this reasoning to some federal construction projects. In Wards Cove Packing Co. v. Antonio (1989) the Court rejected statistical evidence that showed that minority workers received lower pay and fewer promotion opportunities than white workers and declared that without proof of an employer's intent to discriminate there could be no cause of action for discrimination under federal civil rights acts. In Martin v. Wilks (1989) the Court refused to allow minority firefighters in Birmingham, Alabama, to sue for discrimination under federal law.

Congress responded to both the Wards and Martin decisions by passing the Civil Rights Act of 1991 to restore a right to sue under these circumstances. In Shaw v. Reno (1993), Miller v. Johnson (1995), Shaw v. Hunt (1996), and Bush v. Vera (1996) the Court struck down a series of redistricting plans in North Carolina, Georgia, and Texas that were designed to create congressional districts in which the majority of the voters were minorities. These cases seemed to reverse the tide of civil rights by denying state legislatures the power to create minority-majority districts.

In a significant modification of this trend against supporting civil rights, in Grutter v. Bollinger (2003) the Court upheld the right of the University of Michigan Law School to give “substantial weight” to nonacademic factors such as race, background, and economic status in making admissions decisions. The Court in effect returned to the standard set in Bakke. It noted that a highly educated and diverse workforce was vital for the United States as it competed in a world economy. In her majority opinion Justice O'Connor wrote that the “benefits” of affirmative action “are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” Here she cited an amicus curiae brief filed by General Motors. Quoting a similar brief filed on behalf of former high-ranking military officers, she noted, “What is more, high-ranking retired officers and civilian leaders of the United States military assert that, ‘based on [their] decades of experience,’ a ‘highly qualified, racially diverse officer corps … is essential to the military's ability to fulfill its principle [sic] mission to provide national security.’ ”

In upholding the university's “narrowly tailored use of race in admissions decisions” Justice O'Connor expressed the Court's hope for a racially equal society, its discomfort with affirmative action, and its understanding that as an institution it still has a major role to play in dismantling the effects of race discrimination that a century earlier it had helped shape and create. She wrote:

"We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable … . It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that twenty-five years from now the use of racial preferences will no longer be necessary to further the interest approved today."

[See also Brown v. Board of Education; Buchanan v. Warley; Constitution, U.S.; Jim Crow Law; Laws and Legislation; Loving v. Virginia; Missouri ex rel. Gaines v. Canada; Plessy v. Ferguson and Segregation; Smith v. Allwright; Sweatt v. Painter; Williams v. Mississippi; and biographical entries on figures mentioned in this article.]

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