“Segregation Cases” Supreme Court

I. Introduction … A. Early Criticism II. The Segregation Cases III. Question Involved IV. Reversal of Plessy v. Ferguson V. Trend Since Plessy v. Ferguson VI. Other Cases Involving Rights of Negroes Since Adoption of the 14th Amendment—1868 VII. Reversal of Plessy v. Ferguson … A. Stare decisis … B. No Basis for the Plessy Decision VIII. September 30th Opinion of the Supreme Court IX. Philosophy X. Nelson Case XI. Yates Case XII. Jencks Case XIII. Conclusio

Backpedaling Toward Plessy

When the Supreme Court overturned two desegregation plans, the majority opinion was based on a distortion of both programs, and of the history of desegregation in general

Judging in a Vacuum, Or, Once More, Without Feeling: How Justice Scalia\u27s Jurisprudential Approach Repeats Errors Made in Plessy v. Ferguson

James Fleming argues that “[Justice Clarence] Thomas’s concurrence in Adarand and dissent in Grutter reflect the Plessy worldview.” I argue in Part V of this article that Justice Antonin Scalia follows the Plessy approach in several of his dissenting opinions. One of this article’s goals is to explain these incongruencies—how can it be that each of these Justices believes he is true to the legacy of Brown, but is inadvertently adopting the reasoning used by the majority in Plessy? The key to resolving this paradox depends on identifying precisely how Plessy went wrong in its reasoning and how Brown corrected Plessy’s errors —tasks this article takes on in Parts II, III, and IV. I argue in Part II that Plessy failed to take into account social and historical context, the real world of race relations in 1896, and, in Part III, that the Court ignored Homer Plessy’s direct request that the Justices use empathy to imagine themselves in his position as an African American living under Jim Crow. As Goodwin Liu observes, part of Plessy’s failure involved “the radical formalism of constitutional interpretation in the face of contrary social facts.” Or, to enlist language from a Supreme Court decision handed down forty years after Plessy and involving different issues, the Plessy Court essentially “shut [its] eyes to the plainest facts of . . . life and deal[t] with the [issues before it] in an intellectual vacuum.

“Segregation Cases” Supreme Court

I. Introduction … A. Early Criticism II. The Segregation Cases III. Question Involved IV. Reversal of Plessy v. Ferguson V. Trend Since Plessy v. Ferguson VI. Other Cases Involving Rights of Negroes Since Adoption of the 14th Amendment—1868 VII. Reversal of Plessy v. Ferguson … A. Stare decisis … B. No Basis for the Plessy Decision VIII. September 30th Opinion of the Supreme Court IX. Philosophy X. Nelson Case XI. Yates Case XII. Jencks Case XIII. Conclusio

“Wrong the Day It Was Decided: Lochner and Constitutional Historicism

“[W]e think Plessy [v. Ferguson] was wrong the day it was decided,” the Joint Opinion of Justices O’Connor, Kennedy, and Souter declared in Planned Parenthood of Southeastern Pennsylvania v. Casey. Plessy, the Joint Opinion explained, had asserted that state enforced separation of the races had nothing to do with racial oppression, and that the perceived offense was merely the fantasy of hypersensitive blacks. This was simply wrong in 1896, and the claim became even more obviously wrong as the years progressed. Therefore it was completely appropriate for the Court to overrule Plessy in 1954 in Brown v. Board of Education

The Silent Resurrection of Plessy: The Supreme Court’s Acquiescence in the Resegregation of America’s Schools

This article argues that the modern Supreme Court is engaging in Plessy-like reasoning to permit segregation. The article argues that the Supreme Court relies on three rationales, all consistent with Plessy, that have resulted in the erosion of school integration: 1) segregation reflects private preferences, 2) we should defer to local governments, and 3) separate schools can result in equal quality of education for all children. The article provides an overview of the case law demonstrating this pro-Plessy bent of the Court and insists that the Court return to the reasoning of Brown to better ensure high quality education for all children

Would African Americans Have Been Better Off Without Brown v. Board of Education?

Suppose that the United States Supreme Court had reaffirmed Plessy v. Ferguson in Brown v. Board of Education and strictly enforced its separate but equal doctrine. What would have been the subsequent history of educational opportunity for African-Americans? Charles Hamilton Houston’s original strategy was to persuade courts to enforce Plessy strictly, assuming that southern states would not be able to afford a truly separate but equal school system. If southern states wanted quality education for their white children they would be forced to integrate to save money. So it is interesting to speculate whether African American children would have been better off with strict enforcement of Plessy. Perhaps black parents might have gotten integrated schools anyway, or if not integrated schools, then equal schools

Controlling Identity: Plessy, Privacy, and Racial Defamation

This Article explores the origins of privacy law in early twentieth century America in relation to the legal solidification of Jim Crow in the aftermath of Plessy v. Ferguson. It considers some distinctively southern aspects of the origins of the right to privacy and argues that by viewing privacy, racial defamation, and Jim Crow in relation to each other, we can gain new insights into each-coming to understand that Plessy was not just about controlling space, or property, or even equality but also about controlling identity itself, and coming to see that in its origins, the right to privacy had a deeply racial component. Part II of this Article considers how Plessy implicated legal interests in the control over and construction of racial identity. Part III examines how our understanding of Plessy\u27s treatment of identity interests can be deepened and broadened by reading Plessy in relation to Pavesich, the first American case to recognize a free standing legal interest in a right to privacy. Here, I argue that central to both cases were issues relating to an individual\u27s access to legal means to control his identity. Part IV then elaborates on the relationship between Jim Crow laws and privacy by examining a series of racial defamation cases brought during this same period

Controlling Identity: Plessy, Privacy, and Racial Defamation

This Article explores the origins of privacy law in early twentieth century America in relation to the legal solidification of Jim Crow in the aftermath of Plessy v. Ferguson. It considers some distinctively southern aspects of the origins of the right to privacy and argues that by viewing privacy, racial defamation, and Jim Crow in relation to each other, we can gain new insights into each-coming to understand that Plessy was not just about controlling space, or property, or even equality but also about controlling identity itself, and coming to see that in its origins, the right to privacy had a deeply racial component. Part II of this Article considers how Plessy implicated legal interests in the control over and construction of racial identity. Part III examines how our understanding of Plessy\u27s treatment of identity interests can be deepened and broadened by reading Plessy in relation to Pavesich, the first American case to recognize a free standing legal interest in a right to privacy. Here, I argue that central to both cases were issues relating to an individual\u27s access to legal means to control his identity. Part IV then elaborates on the relationship between Jim Crow laws and privacy by examining a series of racial defamation cases brought during this same period