Law and the Rhetoric of Race
SLAVE CASES
Background:
 Because there was no NC supreme court until 1818, these first cases were decided by
judicial counsel—judges getting together to consider self-certified appeals.
 Issues were criminal liability of whites killing slaves, to what extent would/must the
NC judges develop a common law of slavery?
 Slavery was extrajudicial
 Strangers to the bond forced judges to change.
 Point is law is dynamic—judges are always changing for strategic reasons.
Two tests for these cases:
 Which white man wants case adjudicated?
 If case had been between 2 whites, what would the result have been?
State v Weaver 1798
Owner wants recompense from Weaver, who was a judgment proof day hirer
Statutory background:
 Statute of 1774 said the second killing of a slave is a capital offense; the first is a
year in prison
 Statute of 1791 kind of revokes earlier statute and provides in section 3, death
penalty for first offense. Though note that ambiguous language monkeys up
judges in Boone.
Social dynamic: if paternalism is essential to slavocracy, it’s high risk to hire out slaves
because temporary masters have different econ interests.
This case is an indictment under section 3, but he’s found not guilty
 There’s an underlying assumption that slave brought it on himself.
 Judge is saying, we have to presume that some correction is necessary, and
that a master has a right to destroy his property.
 He starts with common law, but says that applies to freemen. Thus he’s
operating under assumption that a killing of a slave is justifiable homicide.
 Thus, the common law is different for slaves.
 But judges have a problem—parallel forum of slave courts, can’t use Roman
law of slaves because that’s a civil system.
Piver 1798
 Judges never address facts of case—it’s more important to lay down rule.
 Piver is a stranger, not a hirer, and thus court can’t be right in saying it’s just an
application of Weaver.
 Case stands for: white is right, racial solidarity
 In 1850 this case would be at least manslaughter and probably not murder—wouldn’t
want to hang prosystemic slave.
1
Boon 1801
Judges let Boone off because of
 Ambiguity
 Narrow construction of crim statute
Case boils down to court not being ready for reform—despite the statute, they’re not
changing the law. Judicial nullification.
Judges take 2 approaches to limitations on master’s dominion
 Hall: any restrictions arise from positive law
 Taylor: no emphasis on positive law. Instead looks to natural law element
captured in common law. Does not want to interfere with slave system.
 Note that no one thinks master can just get rid of slave.
Walker 1817
 First case to arise under 1817 amendment designed to repudiate Boon. W is a slave
catcher who brutally marches caught slave.
 Taylor left talking about circumstances. He says the distance between black and
whites means that white/white comparison can’t be used for white/black situations.
 Lower court thought it was murder or nothing—no manslaughter.
 This court thinks correction of bound slave as barbarous, and it’s anti-systemic
behavior. Walker gets off as though it were 1801.
Tackett 1820
 Love triangle.
 Illustrates difference between white on white and white on black provocation.
 Jury charge reads as if we’re talking about 2 whites. AG’s arg replicates this
approach.
 Sewell plays the race card, says there are different rules depending on relationship
between parties.
 Trial judge said could only put in evidence of D’s turbulence as to T but court here
found that erroneous. Taylor says general turbulence must be admitted.
 Lessons learned:
--Can, and are obliged to, set new common law rules
--More factual accounts—everything starting to come in, and thus the law will
emerge from jury box
--The court is saying the social structure is too complicated, so we’ll assign deciions
to jury. This is the antithesis of common law, and mirrors old slave courts.
 Highly problematic for slaveholders
Note that so far there’s no talk about absolute dominion, etc. Lawyers are struggling for
more explicit recognition of power relationship. Slave rebellion becoming a bigger
concern
2
Reed 1823
Why would any prosecutor proceed with common law approach, post Boon?
 Vice of statute is rhetoric in earlier dicta as to what “some circumstances” are
 Taylor says here that 1817 statute is declarative of common law, and thus
Boon no longer valid
Henderson adds life and limb exception to master’s dominion, and yet master has
“absolute right.” Judges don’t want to have to rationalize absolute dominion, yet don’t
want to discuss niceties of correction.
New theme: Can’t get too deeply into this stuff. Better let the leg do it (see Hall).
System depends too much on master’s dominion, and it’s the hirers who go too far.
Hale 1823
 White stranger assaults slave. Is assault indictable at common law?
 Court says it depends on circumstances, and here the D was biggest threat to master’s
autonomy and control.
 Judges want to be categorical—of course people like this can be indicted. Taylor is
saying this is not even precedent.
 This is a break from Boon/18th c approach. Now statutory and common law are
implicated in administration of slave system.
Mann 1829
 Hirer has slave for one year and correction was out of control.
 Ruffin claims to think this stuff doesn’t belong in court, but he might be crying
crocodile tears. His strategic objective is getting absolute dominion of master over
slave. Flaw in arg is that ultimate master is subject to whims of hirer. There’s a hard
rhetorical line that the master rules.
 After this case, if you can make a plausible claim that death of slave was result of
correction, even if he dies, there’s no liability. Limitation will come from leg.
Tom 1830
 1802 statute…ongoing anxieties about slave rebellion
 Need at least 2 to convict under conspiracy, but Donnum was acquitted, so what to do
with Tom?
 Court remands in search of other parties who could be convicted.
 Court is being super careful of law, and Tom can’t meet standard, so he gets only 25
lashes.
 Case about rewarding good slaves and punishing bad overseers.
Will 1834
Fundamental policy issue of whether Mann should be repudiated?
Post-Turner rebellion
Will was a valuable slave who complied with order, and overseers wife told him no to go
correct.
3
Most salient legal matter is that weapon fired in response to salve being verbally
corrected. So without the gun, it’s just correction.
Arg for Will:
 Mann should be repudiated.
 Moore emphasizes risks in following Ruffin’s pattern—the master d’n have
authority over slave’s life. But, we don’t need to formally repudiate Mann
because this is Reed.
 There’s a difference between a whip and a gun used for correction.
 There’s a difference between ordinary battery and anything else.
 Emhasizes rebellion. Says Mann is too high a risk in current environment.
Public opinion has changed, and can’t bomb ‘em into submission because
resentment will grow. So need a more benign policy.
AG
 “See Mann.” Slaves still do not have right to fight back, even if master
violates law because that would elevate slave too much.
Gaston’s opinion
 Is all over the map.
 Law that emerges is captured in note—distinction between ordinary battery
and other.
Hoover 1839
 Pregnant woman beaten and killed
 This kind of slave owner gives system a bad name…it’s not the system that’s bad, it’s
these kind of owners.
 Case shows line between brutality and correction. It’s subjective: what was his
intent? (note that Mann wouldn’t have indicated test would go this way)
 Dick gives generous jury charge, looking ahead to next case.
 Continue to see judges wanting more facts.
 Decision is opportunistic. Other slave owners want case tried so system could defend
itself.
Jarrott 1840
 Card game dispute.
 Sufficient evidence to mitigate to manslaughter, social/racial issues aside.
 So a new trial is ordered—Gaston protects slaves when they are physcially
assaulted off the plantation by white strangers, just as though they were white.
Strangers are still the problem.
 Slaves are humanized in same way as defendant at common law prior to 1860. We
see the common law-ization of slave criminal law: if ordinary provocation, no jury.
 Gaston has to repudiate D’s action at least formally to say within bounds of the
ssytem.
4
Caesar 1849
 Slavocracy starting to worry about free blacks, even though case law still suggesting
white strangers are the problem.
 White guys wants slaves to pimp for them.
 Dick sees as a weapon case.
 Whether law is right depends on interp of Jarrotts.
–either: ordinary battery d/n count as provocation, and Q is if this is ordinary battery,
--or: Jarrott’s d/n apply—technical ruling was that white stranger had no right to
correct and thus he should’ve gone to master or justice of the peace
 Dick holds that slight taps, fists = ordinary battery, and thus it’s murder or nothing
 But Pearson writes main opinion. Slaves are less likely to be provoked (note the huge
switch from Boon) and common law must take that into account. He set’s up a whiteon-white analogy. The problem is third party provokation—killing blow delivered by
someone not provoked. So P has to achieve an identity between D and Caesar. P
also ignores the second blow. He is trying to send clear signal about strangers, and
trying to reassure slaveholding class of good paternalism. Nash agrees. This is an
accomodationist approach, with case law being manipulated to protect slaves.
 Ruffin wants to establish that Jarrott controls here—more common law approach.
He’s constantly drawing a racial line—that whites need to circle wagon as system
threatened from within. He tweaks Nash and Pearson for not applying the law. He
thinks the Pearson approach leads to allowing slaves to have decision making power.
Elick 1859
 Rape case…stalking.
 That victim is of high character establishes Elick’s intent to commit crime.
 Note that concept of attempted crime is insufficiently theorized—so taking the first
step is doing the bad act.
 He has to hang, from a systemic viewpoint. Slaves CANNOT mess around with
white women—ultimate social taboo.
Bill 1852
 Insolence. Slave under bed of master but hadn’t committed a crime. He claims white
woman was waiting for him, which judges view as slander and insolence.
 System sees this as free slaves meddling with system.
5
Dred Scott 1857
Political background:
 Curtis was an opportunist lawyer, not an abolitionist but for union above all.
 Growing concern with sectionality in Supreme Court—too many Southerners.
 Buchanan urges court to write broad opinion.
 Dissent published in paper 3 weeks before official US reporter. Fractured
relationship between Taney and Curtis.
 Kansas Nebraska Act of 1854—self-determination was Douglas’ thing—let states
decide, but then bloody Kansas, and no one takes seriously the referendum
declaring Kansas a slave state. There was pressure on Congress not to let slavery
expand.
Case holds Missouri Compromise unconstitutional because
 Congress lacked power to do so
 Violation of 5th Amendment—take of property without due process
Consequence was that it knocked pins out from under Kansas Nebraska Act, which was a
disaster for Southern Dems (solution they thought would work now unconstitutional) and
Northern Whigs/Republicans (no black can be a citizen).
Ignoring political background, as a legal case:
 No fed Q jurisdiction then—diversity or nothing.
 Nelson wanted to apply Straiter v Grand—ie more simply—but pressure built
for a new authoritative interp.
 Curtis treats T’s rhetoric with legal analysis (appeal to originalism)—brilliant
move.
 Taney’s reflex is classic 19th century stuff. See 118….disjunction in
social/political equality.
Roberts v City of Boston 1849
 Test case with political agenda. Sumner (P’s counsel) believed in case too much. He
was blinded to counter arguments.
 Sumner’s litigation strategy
--Segregation was inconvenient, insulting, and degrading—an official caste,
irrational.
--Did not argue that school was insufficient, though that had been a complaint for
years. Didn’t insist on equality of features because then he’d win separate but equal
and end up in constant litigation over the details. He foresaw same problem as
Thurgood Marshall.
--Inconvenience arg was weakest.
--The more he argues stereotype, the more he’s trapped—how can male/female be
OK but not black/white?
--Caste arg is most subjective—has to turn into exclusion arg somehow—works on a
moral plain but past that he runs into legal problem.
 Shaw’s opinion was taken to stand for: separate facilities are OK if they’re adequate.
His analysis is consistent with antebellum jurisprudence, including stuff he wrote:
6



--Reasonability: 1/5 of a mile not inconvenient. Other classes separated out
(remedial classes) so maybe this OK too.
--Says he trusts committee’s judgment—whole thing is based on the power of school
committees, because leg said they were leaving a lot up to them. Sumner was
defeated by his own petition to the Committee.
Most famous passage: prejudice can’t be changed by the law.
For Sumner, most discouraging was that valid grounds for making classifications is
past experience—so it becomes an endless circle.
Supposedly, everyone is equal before the law, but in application this principle doesn’t
mean they actually are…this is a hierarchical society. Shaw’s attitude is that
judiciary doesn’t have the expertise to decide distinctions. He provides the
rationalization for saying the distinctions (sex, color, age, etc) are embedded and the
judiciary can’t assess them. This attitude, not the holding, is the point of the case.
Basic proposition do not decide individual cases.
Fourteenth Amendment
 Repubs in 1865 wanted black suffrage as a hallmark of reconstruction, but they
abandoned goal because it was so controversial and failed referendum in CT, WI,
MN. New focus/symbol became Civil Rights Bill. See handout.
 13th Amendment formally abolished slavery, they wanted another with nondiscrimination provision. Stevens wanted non-discrimination, Bingham counterproposal was equal protection, and this one prevailed. Non-discrim would inevitably
lead to black franchise, they thought, and no one was prepared to do that. Equal
protection wasn’t as politically charged.
 15th Amendment prohibits discrimination in suffrage on racial grounds.
 All 3 contain provisions allowing Congress to enforce with legislation.
Slaughterhouse Cases 1873
 New Orleans wanted to better compete with TX stockyards; created monopoly.
 Court was under attack from Congress for 25 years to limit jurisdiction. This case is
a response to these attacks, as well as an attempt to define ambiguous language of
amendments.
 States were viewed as primary units, and preservation of this view was thought
essential. So Slaughterhouse case should be no surprise.
 Campbell, former SC justice, argued for Ps: focus was on depriving power of
individuals to exploit capacity to work. Clever strategy played to Repubs who’d been
moved more by self-determination than abolition.
 Dissent looks like drafts of Lochner, which held that due process clause protected
workers’ rights to enter crazy contracts.
 Miller’s response, in majority: too many radical changes if we came out the other
way. Counter: radical Repubs thought that’s what they were accomplishing! To
Miller, 14th Am. is all about race. He uses living memory arg—we all remember
what this is all about. His arg is like Boon—reconstruction has unravelled. He takes
most narrow view, saving debate about equal protection/antidiscrim for later.
7

Marshall had already held that 1-8th amendments applied only to fed govt. So debate
begins with this case:
--privileges and immunities are very limited—textually circumscribed
–main purpose is race—what happened to black just before and after Civil War
Strauder 1879
 Court becoming anxious about overreliance on national govt to set public policy.
 Weird case, since previous decisions provided a blueprint for denying the vote, but
this statute discriminates on face.
 S was indicted for murder, wanted case in federal court, now wants conviction
reversed, and Supreme Court held statute unconstitutional.
 Person must entitled to complain is black potential juror, but court ignores this.
Standing is not yet very important.
 Would it matter if the facts were either
–circumstantial evidence only, unsworn affidavits, etc, or
–5 eyewitnesses, 2 black, 3 white, no alibi, etc.
didn’t bother this court; modern court would ask if there’d been actual prejudice to
the individual. Court was concerned about black D getting fair trial.
 Strong’s take on meaning of equal protection clause: talks about colorblind
Constitution but then slips in Sumner’s argument from Roberts. Not all
discrimination is bad.
Yick Wo 1886
 This case is about property and labor—evil eye and uneven hand deprives them of
fruits of labor. These immigrants are hardworking productive members of society
whose rights should be vindicated.
Strauder and Yick Wo—the further it gets from ratification, the less the court is
concerned with being on the forefront of protection of blacks. Protection should come at
the state level, and court is not an agent of social change.
8
Plessy 1896
 1890s had resulted in almost complete black disenfranchisement. There was little
help at national level; for the first time, the Repub candidate didn’t accuse Dems of
being guilty of insurrection—didn’t make Constitutional protection a big deal.
 Supreme Court is largely staffed by fairly conservative Repubs—the protection of
property rights was the priority. Also, a focus on the due process clause of 14th
Amendment.
 SC’s main goals were vindicating property rights and circumscribing federal power—
so no way this decision could come out otherwise.
 A decade of lynchings in South were another reflection of solidifying culture.








9
Racial nature of de fact Ps: near-white or someone who could pass for white.
Chief architect of P’s architect was Tourgee, an old carpetbagger. His argument
focuses on:
--statutory attack—this is an arbitrary and unfair deprivation of property without due
process
--14th Amendment—he has to say civil rights cases are wrong, and, to a certain
extent, Slaughterhouse. Trying to get SC to repudiate 2 pillars of 14th Am. views!
–He’s trying to argue caste.
Tourgee can only come up with 4 votes. So maybe he should have abandoned appeal
and not run the risk of an authoritative statement. His “if the tables were turned” arg
opens the door so it can be slammed in his face. It makes the arg look clever but not
serious.
The passing for white as a property right is too subjective and hypotethical.
Respondents: these are equal conditions; equality does not guarantee equality of
place.
The majority opinion (Brown)
–Dismisses 13th Am. arg quickly. He thinks the guts of the claim is a 14th Am.
property claim.
–Hints that there’s a difference between legal equality and social reality. The concept
of equality he thinks is embedded in equal protection clause = **civil (voting,
holding office, giving evidence in a trial, capacity to make a contract, being on a jury)
and political but not social rights. Like the concept of age of majority.
–The test is whether it’s reasonable (does it conform to historical, customary,
traditional usages?) This is the devastating part of the opinion b/c it makes it OK for
the community to continue using racist practices just because they have in the past.
It’s also the intellectual flaw of the case – no normative capacity to change. The
ratifiers did not think this is what they were getting!
--Craftsmanship of opinion is good. He relies heavily on precedent (“it had to come
out this way.”) It’s methodological, clear. Seen as THE definitive statement on
segregation.
Case is most famous for Roberts rehearsal—this is not a badge of inferiority; blacks
are just choosing to so construe it.
Harlan’s dissent: Should he have filed it? It shows that his good, well-argued
principle was rejected. Wanted an antidiscrimination principle.
--He has an answer to distinction between civil and political rights—just because you
put people together doesn’t make them social equals.
–His opinion is all over the map. Takes antioriginalist tack: making states into
common carriers. But 39th Congress was relying on equal facilities lynchpin.
–Harlan knew if you didn’t examine the facilities, separate ones would deteriorate.
So it’s a double loss.
–He thinks court is avoiding 2 main issue: thin disguise doesn’t work, and the nature
of segregation is that it’s meant to degrade and humiliate (northern judges
wouldn’t/couldn’t get this.)
–Harlan is arguing not for equality, but for liberty/freedom. He’s antidiscrim but only
if you’re discriminating for bad reasons. He would’ve liked affirmative action.
Cumming 1899
 Board of Ed withdraws funding from black highschool, saying it can serve more by
funding primary schools
 Ps want to raise issue of whether racially segregated public schools, were public
schools are required, is unconstitutional. This is crazy given Plessy—there’d been
only 1 new justice added, and McKenna wasn’t going to help.
 Their arg tries to raise q of whether Plessy covers segregation in public schools, and
also brings in Yick Wo and Strauder.
–Basis was that the Board’s decision is an arbitrary denial of equal access to
education done solely on basis of race. We saw this before in Roberts, where it was
defeated. There’s little to stand on here since Plessy standard is reasonableness.
 Why did Harlan vote with majority? Focus on affirmative vs negative benefits.
Turns it into a case about gender discrimination more than about race. This is an
effort to prevent an authoritative statement that Plessy applies full force to
segregation in education.
 Two unusual passages:
--p 222: diffferent questions might have arisen if Board had done this for ‘racist’
reasons. Implication is he’d have voted differently if there was an abuse of
discretion. Remember, Harlan thinks the equal protection clause is about
antidiscrimiantion. He’d ask the question after showing that black have been
classified. This is NOT a colorblind approach. For him, discrimination plus animus
equals liability. This allows him to say some segregation is OK—Constitutional
paternalism.
--222: it’s a matter belonging to states and will not be voided unless there’s clear
disregard for Constitution. This is the price of a unanimous opinion. He’s just trying
to minimize future losses.
Lynchings
 Popular view is that gitting rid of Jim Crow was number one goal. But it was #3,
after lynching and disenfranchisement.
 Wilson made Jim Crow federal policy. But in 1900s, the SC starts to respond to
southern horror stories, and the NAACP was trying to secure beachheads that would
help chip away at Jim Crow.
10
McCabe 1914
 White has joined court as CJ. He was probably a member of a less violent Klan-type
org; lots of other new folks on court.
 The statute looks almost like Plessy.
 NAACP withdrew support after coming in late—they were worried that court would
address only commerce clause issue, and they wanted to talk about equal protection.
 Holmes’ dissent was prepared but withdrawn. He was main theoretical skeptic of
equal protection clause. Doesn’t think court has power to address social issues.
 Hughes got huge victory in getting him to withdraw dissent. Because he grants no
practical relief he can write more broadly—like modern standing. Court is saying in
the future it won’t dismiss these arguments.
 5 agree with Hughes, 4 Southerners plus Holmes concur.
Buchanan 1917
 First NAACP-initiated legislation. City ordinance mandating racial segregation in
residential areas. (third wave of Jim Crow)
 Plaintiff is white seller, defendant is black buyer. D then welches on deal. This is
made-up litigation!
 Emphasis is on property rights violation. White owner’s interest in selling is so
strong that many racial issues are avoided. “Due process is all about property rights.”
 So now NAACP thinks litigation strategy is all about finding the right plaintiff, and
waiting ‘til you have a full case, not about direct confrontation, because they didn’t
want to revive Plessy. The problem was that victory was short-lived because of
restrictive covenants.
So by this time the SC had turned the equal protection clause into a nullity, with a few
exceptions. Yet these cases keep coming up, and mob justice was becoming visible.
Moore v Dempsey 1923
 At same time court was deliberating on Myer v Nebraska (finding a right to educate
your kids as you see fit, was protected by due process clause).
 Legal issue was whether district court properly dismissed habeas petition. Grounds:
sham trial. It helped that someone on the scene (chancellor) thought it was.
 Have to show violation of Constitutional right to get relief (i.e, have to show you’re
being held by body that doesn’t have jurisdiction.) So Holmes had to show that
prisoner had no right to be held because trial court had no jurisdiction—held without
trial. Idea is that when trial occurs in mob atmosphere, it deprives itself of
jurisdiction: nullity at the outset. Mob has destroyed authority and jurisdiction of
court.
 Holmes doesn’t look at common law, practice. Just asserts that mob was too bad.
Doesn’t really deal with race issue.
 McReynold’s dissent: you’ve only been denied due process if no one listens to you.
I.e., granting appellate review is enough. This isn’t a totally alien concept—per
Crowell v Benson, we still acknowledge it. His concern is you’ll open flood gates if
11
you allow here. But his opinion is cut and pasted from Frank v Magnum—not a
powerful response.
Gong Lum v Rice 1927
 Renegade case, no NAACP involvement.
 Taft’s unanimous opinion: doesn’t violate 14th Am. for states to assign Chinese
student to black school.
 Abuse of discretion case.
 Cites Roberts and says question is essentially settled.
 Post Rice, if you’re the NAACP, you’re nonplussed. They were focusing on equal
pay for equal work prong of attack.
Scottsboro
 NAACP reluctant to get involved; D’s didn’t want to be represented by them. Early
mid-life crisis.
 ILD, legal arm of Communist Party, provided defense. Wanted to be in on case
because they wanted to use race to further their own cause—boys were symbol of
racial oppression and the collapse of the beourgeousie system.
 Justices knew everyone was watching and that case was about racism, integrity of
legal/judicial system.
Powell
 Southerland, to get majority, goes deep into record, spurred by pressure.
 Technical legal issue is denial of counsel, not just ineffective counsel. He’s doing the
McReynolds “due process covers this” thing. Devotes energy to historical stuff to
meet argument that he’s coming from nowhere. His authorities are Thomas Cooley—
widely cited authority on Constitution, and CJ John Anderson from AL supreme
court—referred to as a historian, not a lawyer. This helps legitimize view—voice of
sanity from the south.
 As a matter of Constitutional law: case establishes that deprivation of counsel in a
captial case, where Ds are indigent, is a violation of due process.
 Dissent: why take this step on the this record.
 Hughes didn’t want to write opinion because it’d have been a repeat of his
presidential campaign, and it wouldn’t be credible.
Norris
 State decided to stop pushing after this case.
These cases show SC taking many extraordinary steps:
 Pealing back the record
 Talking about touchy stuff
 Ignoring doctrine/technicalities
The court is driving home where it wants to be. It’s beginning to see patterns of behavior
in southern criminal justice system.
12
Brown v Mississippi 1936 is the MIS version of Scottsboro. Case of coerced
confessions. Court stands on shoulders of southern whites, and invokes them for flavor
of reality, same as in Scottsboro.
Missouri ex rel Gaines v Canada 1938
 NAACP direct challenge to racial segregation. Strategy was to individualize Ps, with
graduate school down.
 SC has added Black.
 State’s arg looks like Rice, Ferguson, Roberts. Nothing new. States are worried
about equal facilities. Trying to turn question of law into question of fact. 14th Am.
guarantees substantial identity. This is a mere matter of inconvenience.
 But court says MO failed to satisfy due process clause.
 Very important decision. Court is saying:
1. Question of what constitutes segregation under equal protection clause is a
substantial Constitutional question which this court won’t ignore.
2. Watershed opinion on attack on Jim Crow. Brown is closely related. The test is
no longer Plessy’s usages/customs/practices, but advantages (not facilities.) It’s
not enough that student can go to another state because it’s about the privileges
afforded in that state.
 Equal protection is a personal right. Court uses tricks:
1. Hughes quotes as though court had held this in Atchinson Topeka but it was just
dicta.
2. Talking about different kinds of facilities.
3. Why should a state’s legal treatment extend over its borders? State’s actions have
to occur within its borders.
 Reasonability stuff now drops out.
 McReynolds: race mixing leads to good faith issue.
 This is a ratification of NAACP’s strategy.
Shelly and Hurd 1948
 Hard to see any limits on state action doctrine. But political context is more
important.
 1948 is key year: military deseg, Blue Ribbon Commission on civil rights, southern
states walk out of Truman’s nomination (Dixiecrats).
 First case where US intervened as non-party.
 Lots of other sig orgs joined amici.
 Court is now writing unanimous decisions. No longer partisan. But downside is—
constrained by lowest common denominator.
13
Grad School cases
That 2 most liberal judges just died is huge break for NAACP. They were eager to
overrule Plessy if jurisdiction was met and Vinson thought they’d insist on its being
briefed. But not enough votes to actually overrule.
Sweatt v Painter 1950
 Too few black lawyers for black communities.
 All-star team for Ps. Ags of southern states were other side.
 Vinson’s strategic objective was to make issue as narrow as possible—we don’t have
to reexamine Plessy. So he limits facts and legal conclusion.
 Says right is personal and present. Thus relief is personal too—just this guy, not
100,000 elementary school kids. Court was worried about how fast stuff was moving.
 Clark’s memo showed this was equality/education case, not a stigma case. Helps
crack narrowness of case.
 Court thought this was modest step that wouldn’t necessarily dictate outcome of
elementary cases.
 Rights and remedies were easy to pronounce because they flowed so directly from P’s
identity.
McLaurin 1950
 Old P avoides sexual overtones of younger.
How much can you take from these cases in support of elementary?
 NAACP can look at social reality. But response is that stigma is self-imposed. So it
doesn’t get them too far. But they do say—it has teeth if you show court the record.
Court not afraid to do this. (alarm bell for south).
14
Brown 1954
 Case was aruged twice under different administrations. Reargued because they
couldn’t decide.
 Vinson was the holdup but then he died. Sticking point was what relief was going to
be. Then Warren was appointed.
 Relief punted to next term. Black urged going slow.
 Warren’s rhetorical strategy was to write simple straightforward opinion without a lot
of cases, legal stuff. Could publish in papers. It was a very political act.
 Court dismisses original understanding argument—says reading of history is
inconclusive and grounds case on morals.
 Case looks at equality more than liberty. Separate schools are inherently unequal.
Doesn’t cast light on whether this applies only to state-established schools or to all, or
whether segregation violates the Constitution only if harmful (Harlan) or if all
segregation violates.
 Court didn’t see long –term consequences of actions. Thought there’d be slow,
eventual compliance.
 Plessy is not overruled. It just “has no place in public education.” Arg was Roberts
all over again.
 First draft of Bolling—right to education is fundamental right. Was deleted from
final on Black’s objection. The court ddin’t care about doctrine…just wanted parity
between state and federal results—would be unthinkable to come out any other way.
Brown II
 If you’re Thurgood Marshall, don’t want to be tied up in litigation, but don’t want to
lose face either. Arg for open-ended, gradualism. Couched in insistent terms. (that’s
what they got)
 AG: produce plan in 90 days for good faith implementation, no targeted deadline.
 Court ended up providing time for psychos to develop opposition strategies. Cost of
unanimity was temporization of every point.
 Marshall realized that law follows social culture not vice versa.
15