A People's History of the Supreme Court

by Peter Irons

  We can gain much insight into America’s racial history by bridging the gap between Homer Plessy and a later civil rights pioneer, Rosa Parks. On December 1, 1955, she boarded a city bus in Montgomery, Alabama, and took a seat in the row just behind one occupied by white passengers. Every seat on the bus was full when a white man boarded and stood in the aisle. The driver then ordered the blacks in the first row behind the whites to stand up and move back. Three black passengers complied, but Rosa Parks remained seated and refused to move. A seamstress by trade, she later explained why she refused the driver’s order to move: “I was quite tired after spending a full day working, I handle and work on clothing that white people wear. It just happened that the driver made a demand and I just didn’t feel like obeying his demand. He called a policeman and I was arrested and placed in jail.” Her arrest, sparked the Montgomery bus boycott and thrust its young leader, the Rev. Martin Luther King, Jr., into national prominence. A year later, the Supreme Court struck down bus segregation in Montgomery.

  Separated by more than six decades, Homer Plessy and Rosa Parks shared an important connection. Whatever their personal motives for refusing to change seats, both had affiliations with civil rights groups that supported challenges to Jim Crow laws. Plessy was a friend of Rodolphe Desdunes, a leader of the American Citizens’ Equal Rights Association in New Orleans and a prominent figure in the city’s Creole community. Desdunes also helped to organize a “Citizens’ Committee to Test the Constitutionality of the Separate Car Law,” and most likely he recruited Plessy to challenge the law. Rosa Parks had been an active member and secretary of the Montgomery chapter of the National Association for the Advancement of Colored People; in fact, she sent King the letter appointing him to the chapter’s executive board. It is likely that Rosa Parks understood—or even welcomed—the probable reaction to her act. She later said that “this is what I wanted to know: when and how could we ever determine our rights as human beings?”

  We know a great deal about Rosa Parks, who has been honored many times since her act of defiance, but we know very little about Homer Plessy, not even his occupation. He made no statements and gave no interviews to reporters. He died in 1925 at the age of sixty-three; his cemetery headstone makes no reference to his place in history. Despite his personal obscurity, Plessy deserves recognition because his case represented one of the first examples of “interest group” litigation, in which organizations like the New Orleans citizens’ committee bring “test cases” to expand—or defend—the constitutional rights of their members and constituents. Since the Plessy case, the NAACP, founded in 1909 by blacks and sympathetic whites, and another important organization, the American Civil Liberties Union, formed in 1920, have brought more Bill of Rights cases before the Supreme Court than all other groups combined. Many of these cases are carefully planned and prepared; others result from impulsive acts, like refusing to move from a bus seat or burning an American flag. Some clients are sympathetic and others are just pathetic. One famous ACLU client, Ernesto Miranda, was a rapist and kidnapper whose Supreme Court case, Miranda v. Arizona in 1966, established the “right to remain silent” under police interrogation. But whether saints or sinners, these “test case” clients allow their sponsors to bring constitutional issues before the courts; it takes real people with an actual “case or controversy” to begin the legal journey to the Supreme Court.

  Similar in many ways, Homer Plessy and Rosa Parks differed in one visible characteristic. The bus driver in Montgomery ordered Parks to move because she was clearly black. Plessy, in contrast, had to arrange his arrest because he looked white and “passed” the color line in the racial gumbo of New Orleans. He was an “octoroon,” the word then used to describe people with seven white great-grandparents and one (most often a female slave) who was black. His name suggests that Plessy was a Creole of French ancestry; most of the men who founded the citizens’ committee in New Orleans—like Rodolphe Desdunes—had “roots” going back to French control of Louisiana. The legal papers filed in Plessy’s case noted that “the mixture of colored blood was not discernible in him.” If he could “pass” for white, why did Plessy court arrest to challenge the Jim Crow law? The answer is not certain, but it might reflect the “marginal” status of Creoles in New Orleans. They were “almost” white, but under state law they had no more rights than the darkest black. Even in the same family, some could pass and others could not. Those with darker skin certainly resented their segregation from whites, but people like Plessy must have felt more anxious when they boarded a “white” railroad car and came under the conductor’s gaze.

  Louis Martinet, a prominent Creole physician and lawyer, joined Rodolphe Desdunes as the guiding force behind the Plessy case. Shortly after the Louisiana legislature passed the “separate cars” law in 1890, Martinet launched a campaign in his column in the New Orleans Crusader. “We’ll make a case,” he wrote, “a test case, and bring it before the Federal Court on the ground of the invasion of the right of a person to travel through the States unmolested.” It took Martinet almost two years to find a good test case; one problem was that most Louisiana, railroads did not support the Jim Crow law, which cost them money for separate cars. Officials of two railroads told Martinet that “the law was a bad and mean one; they would like us to get rid of it.”

  Even before Desdunes recruited Homer Plessy for the test case and arranged with the East Louisiana Railway to have him arrested, Martinet had recruited the nation’s leading civil rights lawyer to handle the court battle. Albion W. Tourgee of New York was a former Union army officer who moved to North Carolina during Reconstruction; he helped to write its radical constitution and served as a state judge for six years. After the white “Redeemers” took control in 1877, Tourgee returned to New York and became—in his biographer’s words—“the most vocal, militant, persistent, and widely heard advocate of racial equality in the United States, black or white.” He agreed to represent Plessy without fee (what we now call “pro bono” work). Because Tourgee did not belong to the Louisiana bar, Martinet hired a local white attorney, James C. Walker, to assist him for a fee of $1,000.

  The case of State v. Plessy began slowly on its journey through the lower courts. Louis Martinet had first planned to ask a federal judge to rule that the “separate cars” law interfered with interstate travel and violated the Commerce Clause of the Constitution. But a federal court had recently held that Louisiana railroads could not segregate passengers who held tickets for travel across state lines. That decision, although favorable to blacks, forced the Plessy case into state court. In July 1892, Assistant District Attorney Lionel Adams formally charged Plessy with violating the Jim Crow law, and in October he appeared before Judge John H. Ferguson in the criminal district court of New Orleans.

  Normally, judges ask criminal defendants at arraignment to enter pleas of “guilty” or “not guilty” and set trial dates for those in the latter group. Homer Plessy, however, did not make a plea. His lawyers filed a lengthy document with Judge Ferguson, asking him to dismiss the charges on the grounds that the state law violated the Thirteenth and Fourteenth Amendments. Ferguson heard several hours of oral argument on October 28, 1892. Albion Tourgee and James Walker claimed that the law imposed a “badge of servitude” on Plessy and deprived him of the “privileges and immunities” of citizenship. Lionel Adams defended the law as a “reasonable” exercise of the state’s “police powers” to protect the public health, safety, welfare, and morals. Just which of these four powers he relied on is unclear, but Adams did claim that “the foul odors of blacks in close quarters” made the law reasonable. The record does not show that he presented any evidence for this claim, or mentioned that most blacks lived in homes without bathtubs (or even running water) and labored for long hours in hot, humid weather.

  Judge Ferguson issued his ruling on November 18, 1892. Not surprisingly, he denied Plessy’s constitutional challenge, citing the Supreme Court decisions in th
e Slaughterhouse Cases of 1873 and the Civil Rights Cases of 1883. Tourgee and Walker had originally planned to appeal Ferguson’s decision—which they fully expected—to the federal court in New Orleans, but they abruptly shifted course and took the case to the Louisiana supreme court. Most likely, they decided that waiting for decisions in two lower federal courts would delay their case longer than one stop in state court. Chief Justice Francis T. Nicholls, despite the fact that he had signed the Jim Crow law as governor in 1890, promptly issued a “writ of prohibition” that ordered Judge Ferguson to “show cause” why his ruling should not be reversed. But after hearing oral argument, the Louisiana supreme court upheld Ferguson’s ruling on January 2, 1893. Three days later, Plessy’s lawyers asked Justice Nicholls to issue a “writ of error” to the United States Supreme Court. He granted this request the same day, and the legal documents in Plessy v. Ferguson arrived in Washington by mail train before the end of February.

  The Plessy case completed its journey through the Louisiana courts in less than eight months, but it then sat on a siding in the Supreme Court clerk’s office for another three years. One reason for this lengthy delay stemmed from the Court’s swollen docket; appeals from state and federal courts flooded the justices with hundreds of cases each year (the Court decided 392 in the 1895 term). The justices did not then have the bevy of law clerks they now employ, or computers on which to draft and polish opinions. (Not until Congress passed the Judiciary Act of 1925 did the Court gain its long-sought “discretion” to decide which cases deserve argument and decision.)

  Another factor slowed down the Plessy case: Albion Tourgee looked at the justices and did not like what he saw. The Court’s rules allowed for expedited hearings in criminal cases, but Tourgee decided to wait his turn on the regular docket. “Of the whole number of Justices there is but one who is known to favor the view we must stand upon,” he wrote to James Walker in October 1893, obviously counting Justice John Marshall Harlan on his side. Tourgee saw four certain votes against Plessy; these justices—he did not name them—would “probably stay where they are until Gabriel blows his horn,” he lamented. The remaining four would probably uphold the Jim Crow law, but shifts in public sentiment might affect their votes. “The Court has always been the foe of liberty,” Tourgee wrote, “until forced to move on by public opinion.”

  Public opinion did shift before the Court ruled in 1896, but it became even more hostile toward blacks. Southern states passed more Jim Crow laws and began to purge blacks from voting rolls; in 1894 Congress repealed almost every Reconstruction law that remained on the books. Faced with this gloomy outlook, Tourgee’s brief to the Supreme Court reflected his refusal to temporize; he threw caution to the wind and challenged the justices to look racism in the face. “Suppose a member of this court, nay, suppose every member of it,” he wrote, “should wake tomorrow with black skin and curly hair—the two obvious and controlling indications of race—and in traveling through that portion of the country where the ‘Jim Crow Car’ abounds, should be ordered into it by the conductor. It is easy to imagine what would be the result, the indignation, the protests, the assertion of pure Caucasian ancestry. But the conductor, the autocrat of Caste, armed with the power of the State conferred by this statute, will listen neither to denial or protest.”

  Tourgee continued his philippic: “What humiliation, what rage would then fill the judicial mind! How would the resources of language not be taxed in objurgation! Why would this sentiment prevail in your minds? Simply because you would then feel and know that such assortment of citizens on the line of race was a discrimination intended to humiliate and degrade the former subject and dependent class—an attempt to perpetuate the caste distinctions on which slavery rested.”

  Although his brief included more lawyerly argument on the Thirteenth and Fourteenth Amendments, Tourgee also asked the justices to imagines the possible consequences of upholding Jim Crow laws. “Why not require all colored people to walk on one side of the street and whites on the other? Why not require every white man’s house to be painted white and every colored man’s black?” (The Court’s majority opinion considered these hypotheticals—as lawyers call them—and dismissed them as not being “reasonable” exercises of the state’s police powers.) Tourgee added a sentence that wound up, slightly changed, in the solitary dissent: “Justice is pictured blind and her daughter, the Law, ought at least to be color-blind,” he wrote.

  The Supreme Court heard oral argument in Plessy v. Ferguson on April 13, 1896; no record or accounts have survived, but the lawyers on both sides probably restated the points in their extensive briefs. Five weeks later, on May 18, the Court handed down its decision. Seven justices voted to uphold the Jim Crow law, while only John Harlan dissented (Justice David Brewer had been absent during argument and did not vote). Justice Henry B. Brown wrote for the majority; his only major opinion in fifteen years on the Court was certainly his worst. The list of Brown’s deficiencies is long: he virtually ignored the constitutional issues raised by Plessy’s lawyers; he relied heavily on cases that had little or no authority as precedent; and he based his decision on thinly veiled racism, dressed up in polite language.

  Brown first addressed the Thirteenth Amendment claim that the Jim Crow law imposed a “badge of servitude” on Homer Plessy and all blacks. In just three paragraphs, he brushed aside this claim as “too clear for argument.” That. amendment abolished “the ownership of mankind as a chattel” and did nothing more, Brown asserted. He cited for precedent the Civil Rights Cases of 1883, ignoring the fact that all those cases involved “private” discrimination and not the kind of “state action” clearly present in the Plessy case.

  Turning to the Fourteenth Amendment, Brown admitted its intent to prohibit state-imposed racial discrimination and laws “imposing upon the colored race onerous disabilities and burdens,” which was precisely what Louisiana did to Homer Plessy Brown used an old lawyer’s trick to escape this dilemma: semantic evasion. The Jim Crow law did not “discriminate” on racial grounds, he claimed; it simply recognized a “distinction” between the races “which must always exist so long as white men are distinguished from the other race by color.” But in separating the races in railroad cars, had Louisiana deprived Plessy of any of the “privileges and immunities” he enjoyed as a citizen? Brown answered this question with more wordplay, drawing a distinction between “political” and “Social” equality. Conceding that states could not deprive blacks of political rights, he looked at the Court’s earlier cases and found just one right protected by the Fourteenth Amendment. Brown cited the 1880 decision in Stauder v. West Virginia, striking down a law that limited jury duty to whites. This law imposed “a discrimination which implied a legal inferiority” of blacks, he wrote.

  Brown would go no further than admitting blacks to jury boxes. “The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theatres and railway carriages has been frequently drawn by this court,” he claimed. The discussion that followed this forceful statement exposed the legal quicksand on which Brown’s opinion rested, since none of the cases he cited as precedent for this proposition were Supreme Court decisions that involved laws requiring—rather than permitting or forbidding—racial segregation. Brown first cited an 1849 Massachusetts supreme court ruling that upheld school segregation in Boston. In Roberts v. City of Boston, Chief Justice Lemuel Shaw—the most respected state judge of his time—deferred to pubic sentiment, writing that racial prejudice “is not created by law, and cannot be changed by law.” Justice Brown liked Shaw’s statement so much that he inserted it—slightly altered in wording—into his own opinion. However, Roberts had been decided by a state court, two decades before ratification of the Fourteenth Amendment, and lacked any authority as precedent.

  Brown’s citation of the Civil Rights Cases, Decided in 1883, also lacked precedential authority.
The Civil Rights Act of 1875 did not “require” separation of the races; it prohibited such conduct. In fact, Brown’s quotation from justice Joseph Bradley in the Civil Rights Cases undermined his Plessy opinion. Bradley made clear in that decision that the Fourteenth Amendment offered “relief against state legislation, or state action” that violated “the fundamental rights specified in the amendment.” Bradley did not list all such rights, nor did Brown, but neither justice excluded the right of equal access to public accommodations from Fourteenth Amendment protection.

  Brown’s third citation was to a Mississippi supreme court decision, holding that railroads could not refuse to provide Jim Crow cars on their trains. The Supreme Court—with Justice Harlan dissenting—had sustained this ruling in 1889, but rested its decision on the Commerce Clause, with no reference to the Fourteenth Amendment. The majority reasoned that railroads, even those that crossed state lines, must abide by state laws that did not “burden” their passage. None of the cases Brown cited offered much authority for his Plessy opinion, but he nonetheless concluded that “the enforced separation of the races” by state law did not violate the Fourteenth Amendment.

  The contradictions in Brown’s opinion were compounded by his discussion of the Yick Wo case, which offered real “authority” for striking down the Louisiana law Ruling in 1886, the Court held that San Francisco officials—by denying business licenses to all Chinese laundrymen—had made “an arbitrary and unjust discrimination against the Chinese race,” as Brown summarized that unanimous decision. A better precedent for the Plessy case would be hard to imagine. However, after Brown accurately stated the Yick Wo holding, he simply dropped the case and said nothing more about state laws that required or allowed racial discrimination.