The Supreme Court: Overrated As Both Hero And Villain

In comments to djw’s post about law and social change, Russell Arben Fox argues:

I just wanted to get across the idea that the process of democratic deliberation regarding same-sex marriage is at a highly fluid point right now; has been for 15 years, at least, and probably will continue to be (I think rightly should continue to be) for years to come. As such, it’s not as though our polity, I think, is currently at a point where the harms (which I think exist, just not quite on a constitutionally valid level!) of exclusively recognizing heterosexual marriages are part and parcel of an entrenched, debilitating, hate-filled social life, which of course is what Plessy v. Ferguson had given us.

T. Paine responds:

I suspect you’re confusing cause and effect when you say that Plessy “gave” the US an “entrenched, debilitating, hate-filled social life.” I’d argue that the apartheid-like laws and judicial decisions creating de jure racist separation and domination grew out of that “hate-filled social life,” and not the other way around. There are very few times that the Court leads public opinion (Brown and Loving being inspiring counter-examples, AFAIK).

T. Paine is, I think, clearly correct here. Plessy was essentially a symbolic decision that reflected and already-entrenched consensus; it did almost nothing to cause it. I urge anyone interested in the question to read Klarman’s book on the subject, but to summarize:

  • Segregation was already very well-entrenched by 1896.  Reconstruction had been ended by the Tilden/Hayes deal, and African-Americans had already been disenfranchised everywhere in the confederate states by 1895.
  • Not only did the Supreme Court’s decision merely reflect well-established norms, the segregation laws themselves largely reflected already-existing practice and were largely symbolic.   Segregation was established and enforced primary by (effectively state-sanctioned) private violence and economic coercion; segregation would have persisted even had it not been required by law.
  • To get a sense of how little the Supreme Court would have accomplished by deciding Plessy correctly, one need only look at the areas — jury selection and voting — where the Court even in its worst periods struck down explicitly racist state practices.   These decisions were entirely ineffectual because states were able to accomplish the same ends under laws that were formally race-neutral.
  • And, of course, there was no chance in 1896 that the Court would decide Plessy correctly; the outcome was overdetermined.  The Supreme Court reflects the views of national political elites, and national political elites in the Gilded Age had absolutely no interest in enforcing the Civil War Amendments for any purpose other than nullifying economic regulations.  (Even Harlan’s dissent was explicitly committed to white supremacy.)  Consider, for example, that Congress was not merely authorized but required under Section 2 of the Fourteenth Amendment to respond to disenfranchisement by reducing the representation of the disenfranchising states.  Needless to say, this didn’t happen.  The Supreme Court in Plessy was reflecting the views of national political elites, not creating them.
  • Another potentially bad effect of Plessy could have been creating a bad precedent that made the Supreme Court slower to respond to increasing support for civil rights.  The problem is that the opposite was true; the Supreme Court was well ahead of the curve compared to the rest of the national government in terms of requiring the formal desegregation of both higher and lower levels of education.

Plessy didn’t create a climate of hate; it reflected one.

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