Turning to the courts when the other branches of government would not act was the technique James Otis and the colonists resorted to in the period before the American Revolution, the period when the Parliament and the Crown would not address “taxation without representation.” Like the colonists, African-Americans had to deal with a government that did not represent them. Turning to the courts to achieve racial justice and to bring about social change was then the strategy developed by the NAACP. However, for a long time, even victories in the federal courts were stymied by state level opposition. For example, Guinn v. United States (1915) put an end to one “literacy test” technique for voter suppression but substitute methods were quickly developed.

In the 1950’s, the Supreme Court finally undid the post Civil War cases where the Court had authorized state level suppression of the civil rights of African-Americans – e.g. the Slaughterhouse Cases (1873), the Civil Rights Cases (1875), Plessy v. Ferguson (1896); these were the Court decisions that callously rolled back the 13th, 14th and 15th amendments to the Constitution and locked African-Americans into an appalling system.

The first chink in Plessy was made in a case brilliantly argued before the Supreme Court by Thurgood Marshall, Sweatt v. Painter (1950). The educational institution in this case was the University of Texas Law School at Austin, which at that time actually had a purportedly equal but certainly separate school for African-American law students. The Court was led by Kentuckian Fred M. Vinson, the last Chief Justice to be appointed by a Democratic president – in this case Harry Truman! Marshall exposed the law school charade for the scam that it was. Similarly and almost simultaneously, in McLaurin v. Oklahoma State Regents for Higher Education, the Court ruled that the University of Oklahoma could not enforce segregation in classrooms for PhD students. In these cases, the decisions invoked the Equal Protection Clause of the 14th Amendment; both verdicts were unanimous.

These two important victories for civil rights clearly meant that by 1950 things were starting to change, however slowly – was it World War II and the subsequent integration of the military? Was it Jackie Robinson, the Brooklyn Dodgers and the integration of baseball? Was it the persistence of African-Americans as they fought for what was right? Was it the Cold War fear that U.S. racial segregation was a propaganda win for the international Communist movement? Was it the fear that the American Communist party had gained too much influence in the African-American community – indeed Langston Hughes, Paul Robson and other leaders had visited the Soviet Union; the leading scholar in the U.S. of African-American history was Herbert Aptheker, a card-carrying member of the Communist Party. Or was it an enhanced sense of simple justice on the part of nine “old white men”?

The former Republican Governor of California, Earl Warren, was named to succeed Vinson in 1953 by President Dwight D. Eisenhower. The Warren Court would overturn Plessy and other post Civil War decisions that violated the civil rights of African-Americans and go on to use the power of the Court in other areas of political and civil liberties. This was a period of true judicial activism. Experienced in government, Warren saw that the Court would have to step in to achieve important democratic goals that the Congress was unwilling to act on. Several strong, eminent jurists were part of this Court. There were the heralded liberals William O. Douglas and Hugo Black. There was Viennese-born Felix Frankfurter, a former Harvard Law Professor and a co-founder of the ACLU; Frankfurter was also a proponent of judicial restraint which strained his relationship with Warren over time as bold judgments were laid down. For legal intricacies, Warren relied on William J. Brennan, another Eisenhower appointee but a friend of Labor and a political progressive. Associate Justice John Marshall Harlan, the grandson and namesake of the sole dissenter in Plessy, was the leader of the conservative wing.

Perhaps, the most well-known of the Warren era cases is Brown v. Board of Education, which grouped several civil rights suits that were being pursued by the NAACP and others; the ruling in this case, which like Sweatt was again based on the Equal Protection Clause, finally undid Plessy. This case too was argued before the Court by Thurgood Marshall.

Brown was followed by several other civil rights cases which ended legal segregation in other aspects of American life. Moreover, when school integration was not being implemented around the country, with the case Brown v. Board of Education II (1955), the Court ordered schools to desegregate “with all deliberate speed”; this elusive phrase proved troublesome. It was introduced in the 1912 decision in Virginia v. West Virginia by Court wordsmith Oliver Wendell Holmes Jr. and it was used in Brown II at the behest of Felix Frankfurter, that champion of judicial restraint. This decision was 9-0 as it was in all the Warren Court’s desegregation cases, something that Warren considered most important politically.

With Brown II and other cases, the Court ordered states and towns to carry out its orders. This kind of activism is patently inconsistent with the logic behind Marbury v. Madison where John Marshall declared that the Court could not order anything that was not a power it was explicitly given in the Constitution, not even something spelt out in an act of Congress. No “foolish consistency” to worry about here.

However, school desegregation hit many obstacles. The resistance was so furious that Prince Edward County in Virginia actually closed its schools down for 5 years to counter the Court’s order; in Northern cities like Boston, enforced busing led to rioting; Chris Rock “jokingly” recounts that in Brooklyn NY he was bused to a neighborhood poorer than the one he lived in – and he was beaten up every day to boot.

The most notorious attempt to forestall the desegregation ruling took place in Little Rock, AR in September, 1957. Nine (outstanding) African-American students had been chosen to enroll in previously all white Central High School. The governor, Orval Faubus, actually deployed National Guard troops to assist segregationists in their effort to prevent these students from attending school. President Dwight D. Eisenhower reacted firmly; the Arkansas National Guard was federalized and taken out of the governor’s control and the elite 101st Airborne Division of the U.S. Army (the “Screaming Eagles”) was sent to escort the nine students to class, all covered on national television:

https://www.youtube.com/watch?v=7x3byv7Y8Z8

Segregationist resistance did not stop there: among other things, the Little Rock schools were closed for the 1958-59 school year in a failed attempt to turn city schools into private schools and this “Lost Year” was blamed on African-American students. It was ugly.

The stirring Civil Rights movement of the 1950s and 1960s fought for racial equality on many fronts. It spawned organizations and leaders like SNCC (Stokely Carmichael), CORE (Roy Innis) and SCLC (Martin Luther King Jr.) and it spawned activists like Rosa Parks, John Lewis, Michael Schwerner, James Chaney and Andrew Goodman. The price was steep; people were beaten and people were murdered.

The President and Congress were forced to react and enacted the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The latter, in particular, had enforcement provisions which Supreme Court decisions like Guinn had lacked. This legislation reportedly led Lyndon Johnson to predict that the once Solid South would be lost to the Democratic Party. Indeed today, the New South is comprised of “deep red” states. Ironically, it was the Civil Rights movement that made the prosperous New South possible – with segregation, companies (both domestic and international) wouldn’t relocate there or expand operations there; with segregation, the impressive Metro system MARTA of Atlanta could never have been possible; with segregation, a modern consumer economy cannot function; with segregation, Alabama wouldn’t be the reigning national football champion – and college football is a big, big business. .

Predictably, there was a severe backlash against the new legislation and already in 1964 two expedited challenges reached the Warren Court, Heart of Atlanta v. United States and Katzenbach v. McClung. Both rulings were in favor of the Civil Rights Act by means of 9-0 decisions. Interestingly, in both cases, the Court invoked the Commerce Clause of the Constitution rather than the 13th and 14th amendments basing the decision on the authority of the federal government to regulate interstate commerce rather than on civil liberties; experts warn that this could make these decisions vulnerable in the future.

The period of slavery followed by the period of segregation and Jim Crow laws lasted 346 years from 1619 to 1965. Until 1776, this repression was enforced by the English Crown and Parliament, then until the Civil War by the Articles of Confederation and the U.S. Constitution; and then until 1965 by state governments and the Supreme Court. During this time, there was massive wealth accumulation by white America, drawn in no small measure from the profits of slave labor and later the Jim Crow economy. Great universities such as the University of Virginia, Duke and Clemson owe their existence to fortunes gained through this exploitation. Recently, it was revealed that Georgetown University profited from significant slave sales in Maryland to finance its operations. In the North too, the profits from selling factory product to the slave states, to say nothing of the slave trade itself, contributed to the endowments of the great universities of the northeast. Indeed, Columbia, Brown and Harvard have publicly recognized their ties to slavery and the slave trade.  On the other hand, Europeans who arrived in the U.S. in the waves of immigration following the Civil War and their descendants were able, in large numbers, to accumulate capital and accede to home ownership and eventually to higher education. Black America was simply denied this opportunity for those 346 years and today the level of black family wealth is still appallingly low – to cite a Washington Post article of Sept. 28, 2017: “The median net worth of whites remains nearly 10 times the size of blacks’. Nearly 1 in 5 black families have zero or negative net worth — twice the rate of white families.”

It is hard to imagine how this historical injustice can ever be righted. The Supreme Court has played a nefarious role in all this from the Marshall Court’s assiduous defense of the property rights of slave owners (Scott v. London (1806), etc.) to Dred Scott to Plessy, weakening the 14th and 15th amendments en passant, enabling Jim Crow and creating the world of “Separate But Equal.” Earl Warren’s leadership was needed in the period following the Civil War but alas that is not what happened.

In addition to these celebrated civil rights cases, the Warren Court also had to take on suits involving separation of Church and State and involving protection of the individual citizen from the awesome power of the State, the very thing that made the Bill of Rights necessary. More to come. Affaire à suivre.