We are accustomed to looking to the Supreme Court to resolve issues of racial discrimination, but the Court’s record over the last two centuries has been more modest. Elected officials have generally shaped the national discourse over race relations. The Court’s voice has been an important one, but far from dominant. In many instances, the Court takes its cues from social and political forces. When the Court and elected officials disagree with one another, lawmakers have been willing to countermand the Court by enacting legislation at odds with its decisions.

The widespread belief that the Supreme Court has brought civil rights to national attention is grossly overstated. While the Court occasionally serves as a catalyst in a national conversation about race, elected officials—not judges—provide the principal engine of civil rights reform. Judicial rulings to perpetuate slavery, frustrate Reconstruction, and validate the wartime internment of Japanese Americans underscore that the Court’s reputation as guardian of minority rights is misplaced. Even during the past 60 years, with major decisions in school desegregation, affirmative action, and racial districting, the Court has been anything but a steadfast beacon for minority rights.

This chapter explains how courts and elected government have participated on five issues that have divided the nation: slavery and reconstruction, the internment of Japanese Americans, school desegregation, affirmative action, and voting rights. The record reveals that neither the Supreme Court nor elected officials dominate national policy on issues of equality. Instead, the search for racial equality is marked by vigorous interchanges between the courts and elected government.

From Slavery Through Reconstruction

The Constitution, as Justice Thurgood Marshall aptly remarked on the occasion of its bicentennial in 1987, “was defective from the start, requiring several amendments and a civil war.”1 The Constitution allowed each of the 13 states the right to import slaves until 1808. Slaves were counted as three-fifths of a free person when apportioning legislative districts, which gave slaveholding states greater political power. States were required to return those “held to Service or Labour in [another] State, under the Laws thereof.”2 The Founding Fathers left to the states the power to determine voting qualifications. At the time of the Constitutional Convention, many states limited voting rights to white landholders. Indeed, the state constitutions of Connecticut, Delaware, Kentucky, Maryland, New Jersey, North Carolina, Tennessee, and Virginia excluded blacks from voting. By the time of the Civil War, only Maine, New Hampshire, Vermont, Rhode Island, and Massachusetts allowed free blacks to vote.3

The Supreme Court stood as a roadblock to elected government efforts seeking to stop the spread of slavery. Dred Scott v. Sandford (1857)4 defended the interests of white slave owners. Rejecting congressional efforts to exclude slavery from certain parts of the country, the Court ruled that a slave owner has a right to transport his “property” as he saw fit and denied that blacks could exercise the rights of citizens.

By 1862, Dred Scott was effectively eviscerated by legislative and executive actions. Acting through the regular legislative process, Congress passed a bill to prohibit slavery in the territories.5 For its part, the executive branch concluded that it was not bound by Dred Scott. Attorney General Edward Bates issued an opinion in 1862 in which he determined that blacks had been citizens in the past and could be in the future.6

Following the Civil War, Congress set out to change the status of blacks in American society. The Thirteenth Amendment formally nullified part of Dred Scott by outlawing slavery. The remainder of the decision was rejected by the Fourteenth Amendment, which granted citizenship to all persons born or naturalized in the United States. Black male suffrage was the subject of the Fifteenth Amendment’s prohibition against denying or abridging the right to vote “on account of race, color, or previous condition of servitude.” All three Reconstruction amendments granted to Congress the power to enforce these provisions “by appropriate legislation.”

Another means of correcting past injustices against blacks were race-specific measures approved by the Reconstruction Congress in an effort to assist former slaves to become “Freedmen.” Remarkably, Congress’s 1866 debates over these measures are strikingly similar to today’s affirmative action debates.7 Opponents called the measures “class legislation” and argued that rather than promoting “equality before the law,” they “overleap the mark and land on the other side.”8 To opponents, the effect of the bill was to make minorities “superior” and give “them favors the poor white boy in the North cannot get.”9 Proponents argued it would be a “cruel mockery” “not [to] provide for those among us who have been held in bondage all their lives” and that therefore the “true object of [such race-specific legislation] is the amelioration of the condition of the colored people.”10

The Reconstruction Congress also pushed through legislation guaranteeing blacks equal access to public accommodations. Although blacks were citizens as a result of the Civil War Amendments, in many states, they were denied access to theaters, restaurants, inns, and other public facilities. While Congress thought these measures a necessary response to “illogical, unjust, ungentlemanly and foolish prejudice,”11 the Supreme Court in 1883 concluded that Congress’s power to enforce the Fourteenth Amendment’s guarantee of equal protection was limited to “state action.”12 In other words, the Court held, Congress could not require private businesses to grant access to black customers.

Supreme Court hostility to Reconstruction also reared its head in Plessy v. Ferguson, an 1896 decision upholding Louisiana’s power to prevent blacks from traveling in the same rail car as whites. In support of its holding, the Court did little to disguise its biases. Concluding that “legislation is powerless to eradicate racial instincts or to abolish distinctions based on physical differences,” the Court ruled that “[i]‌f one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”13 While Congress (reflecting public opinion) had both abandoned Reconstruction and embraced segregation by 1896, Plessy nonetheless stands as a painful reminder of judicial hostility to racial equality.14

The Japanese-American Cases

During World War II, the Supreme Court backed the government’s internment of Japanese Americans. Although military officials claimed that the internment policy was necessary to the war effort, the undeniable source of the internment policy was America’s long history of anti-Asian prejudice. Following the Civil War, immigrants from China and Japan were prohibited from becoming American citizens.15 By 1882, West Coast states pushed through the enactment of legislation suspending Chinese immigration altogether. But the need for cheap farm labor and railroad workers triggered the immigration of 127,000 Japanese into the United States between 1901 and 1908.16

Like the Chinese before them, the Japanese quickly became the target of discrimination. Starting in 1901, California’s Republican and Democratic parties had anti-Japanese planks in their platforms. In 1905, the San Francisco School Board established a separate school for Japanese-American students so that “ ‘our children should not be placed in any position where their youthful impressions may be affected by association with pupils of the Mongolian race.’ ”17

On December 7, 1941, Japan attacked Pearl Harbor, devastating America’s Pacific fleet. Within a few weeks of the Pearl Harbor assault, Japanese Americans—linked by color and culture to a treacherous enemy and lacking political power—became an easy target for wartime frustration. Witness, for example, the pivotal role that California Attorney General Earl Warren (later to be Chief Justice of the United States) played in the relocation of West Coast Japanese. A member of the anti-Oriental Native Sons of the Golden West, Warren, in the immediate aftermath of Pearl Harbor, dubbed the “Japanese situation” the “Achilles’ heel of the entire civilian defense effort.”18 In testimony before Congress, he claimed that “when we are dealing with the Caucasian race we have methods that will test the loyalty of them, … when we deal with the Japanese we are in an entirely different field and we cannot form any opinion that we believe to be sound. Their method of living, their language, make for this difficulty.”19 This racial xenophobia and stereotyping came to typify federal policy to the West Coast Japanese.

The military too pushed for evacuation. Responding to calls for a full-scale evacuation, General John L. DeWitt, commander of the Western Defense Command, called for the evacuation of both Japanese aliens and Japanese who were U.S. citizens. In his recommendation to Secretary of War Henry Stimson, DeWitt explained that “[t]‌he Japanese race is an enemy race … [and it therefore] follows that along the vital Pacific Coast over 112,000 potential enemies, of Japanese extraction, are at large today.”20 Although some Department of Justice attorneys raised constitutional objections to the proposed evacuation, President Franklin Delano Roosevelt was not “plagued” by these difficulties. “ ‘[T]he Constitution,’ ” as Roosevelt Attorney General Francis Biddle later observed, “ ‘has never greatly bothered any wartime President. That was a question of law … [a]nd meanwhile … we must get on with the war.’ ”21

In February 1942, Roosevelt issued an executive order empowering the military to “prescribe Military areas” and “determine from which any or all persons may be excluded.”22 One month later, Congress enacted legislation ratifying the executive order.23 Pointing to “[e]‌vidence that a tightly knit fifth column [of Japanese Americans] exists in the United States,” members of Congress uniformly supported the legislation—approving it with little debate in either the House or Senate.24

But the evidence Congress pointed to—War Department “findings”—did not exist. A report prepared by General DeWitt intentionally and incorrectly stated that ethnic Japanese in Hawaii significantly aided the Pearl Harbor attack, that West Coast Japanese Americans were involved in shore-to-ship signaling to enemy submarines, that FBI seizures of arms and contraband supported espionage claims, and that the Japanese American community was isolated and might therefore harbor pro-enemy attitudes.

The Justice Department nevertheless concealed these misrepresentations from the Supreme Court. In an ambiguously worded footnote, it asked the Court to “take judicial notice” of the War Department Report for “the facts relating to the justification for the evacuation” and nothing else.25 For its part, the American Civil Liberties Union sought to transform this footnote into a Justice Department declaration of War Department misdeeds. “This singular repudiation of General DeWitt’s testimony on the military necessities,” claimed the ACLU in its amicus brief, “obviously … [shows] the existence of reliable conflicting information from other sources.”26

Allegations of race prejudice and inconsistencies in the War Department report, in the end, were not enough. Although the divide among the Justices was sharp enough to prompt Frank Murphy to confide to his law clerks that “[t]‌he Court had blown up on the Jap case,”27 six Justices of the Court in Korematsu deferred to the judgment of the “war-making branches of the Government,” concluding that “hardships are a part of war” and that “[c]itizenship has its responsibilities as well as its privileges.”28

Mass exclusion of American Japanese was terminated on December 17, 1944, one day before the Court issued its decisions in Korematsu and Ex parte Endo, a companion case that ordered the military to free Japanese Americans found loyal by the Army.29 The Roosevelt administration had been tipped about Endo, apparently by Justice Felix Frankfurter, and wanted to start closing the camps before the release of the decision. Indeed, Chief Justice Harlan Fiske Stone delayed the release of Endo so the administration could alter its internment policy.

Eighteen years later, a principal player in the affair, Earl Warren, reflected on the Court’s decision. Speaking now as Chief Justice of the United States, Warren saw the internment decision as proof positive that there are some circumstances in which the Court will not reject executive claims of military necessity. “The consequence of the limitations under which the Court must sometimes operate in this area is that other agencies of government must bear the primary responsibility for determining whether specific actions they are taking are consonant with our Constitution.”30

Warren’s message proved prophetic. If the elected branches bore responsibility for initiating mass internment, they could also take the lead in acknowledging the terrible mistake. Starting with Gerald Ford’s 1976 declaration that the evacuation was “wrong,” elected government officials’ efforts to remedy this injustice reveal an encouraging self-awareness and humility in popular government. In 1982, the Commission on Wartime Relocation and Internment of Civilians issued a scathing report outlining government misconduct toward Japanese Americans. In 1988, legislation was enacted to provide restitution to Japanese victims of officially sanctioned racism. At the signing ceremony for the legislation, Ronald Reagan remarked that “[n]‌o payment can make up for those lost years. So what is important in this bill has less to do with property than honor, for here, we admit a wrong. Here we reaffirm our commitment as a nation to equal justice under the law.”31

Governmental conduct toward Japanese Americans during the course of World War II is instructive in understanding both the frailty of the presumptive invalidity of racial classifications and the disinclination of the judiciary to combat military excess.32 While William Rehnquist may have gone too far in contending that this episode demonstrates that “[i]‌t is neither desirable nor remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime,”33 the fact remains that the safeguard for pernicious racial line-drawing does not rest exclusively with the judiciary. Indeed, executive and legislative efforts to remedy past governmental abuses are a striking counterpoint to the wartime failures of all three branches.

School Desegregation

From the nation’s founding through the Japanese American cases, the Supreme Court has contributed to racial divisions.34 Nevertheless, in the 1930s, civil rights interest groups still saw a possible ally in the courts. In particular, the NAACP Legal Defense and Education Fund, headed by Thurgood Marshall and Jack Greenberg, sought to work within the confines of Plessy and the associated “separate but equal” doctrine to overturn segregation in education and elsewhere. For these lawyers, “segregation was illegal because, as practiced, it never provided equality for Negroes.”35 From 1938 to 1950, the NAACP succeeded in painting Plessy into an ever-narrowing corner, eventually convincing the Justices that “separate but equal” has no place in higher education.36 In so doing, Legal Defense Fund lawyers—through a strategy of gradualism both in the cases it selected to litigate and in the arguments it made—laid the groundwork for the Court’s outlawing of segregation in elementary and secondary education.37 By 1954, the Court, striking at the heart of Jim Crow, declared in Brown v. Board of Education that “[s]‌eparate educational facilities are inherently unequal.”38

Today, it may seem inconceivable that Brown’s basic declaration of racial equality would trigger complaints about judicial power. When Brown was decided, however, segregation was so ingrained in the South and other parts of the country that the outlawing of dual school systems promised social turmoil and massive resistance. These deep feelings were not lost on either the Court or the Justice Department. In an effort to temper state resistance, Chief Justice Earl Warren sought to craft a unanimous opinion of limited reach and the Justice Department recommended that the Court not specify a remedy in the case. Accordingly, the Court did not issue a particular remedy when it declared segregation to be unconstitutional.

The Justice Department also called attention to the ways in which racial segregation undermined America’s stature as a world leader. Starting with a 1948 case involving restrictive covenants, “the Truman administration stressed to the Supreme Court the international implications of U.S. race discrimination … [including] the negative impact on American foreign policy that a pro-segregation decision might have.”39 In Brown, the administration left no doubt that the Cold War imperative of defeating communism was undermined by racial segregation. “The United States,” according to the Justice Department brief, “is under constant attack in the foreign press, over the foreign radio, and in such international bodies as the United Nations because of various practices of discrimination against minority groups in this country.”40 It has become difficult to claim the mantle of leader of the free world when the nation openly practiced racial discrimination.

When the Truman administration brief was filed, in December 1952, the Court was set to decide Brown with Chief Justice Fred Vinson at its helm. But the Court redocketed Brown so that it could also decide the constitutionality of segregated education in the “federal city,” Washington, D.C. At this time, the Court was sharply divided; the December 1952 conference suggested that five Justices would uphold segregated education.41 The division among the Justices was attributable, in part, to the uncertain history of the Fourteenth Amendment. Chief Justice Vinson observed that, although District of Columbia public schools were segregated when the Fourteenth Amendment was adopted, Congress failed to enact proposed legislation barring such segregation. In 1953, Vinson died and Warren became Chief Justice. He was able to construct a unanimous opinion that segregation in education was unconstitutional. After another year, in which the public had time to contemplate a desegregated country, the Court issued an implementing decision in Brown II, declaring that desegregation remedies must proceed with “all deliberate speed.”42

The Court’s bifurcation of its merits and remedies holdings reveals that the Justices sought to improve the acceptability of their decision by speaking in a single moderate voice. Rather than require segregated systems to take concrete steps to dismantle dual systems, the Court recognized in Brown II that “varied local school problems” were best solved by school authorities, that district court judges were best suited to examine “local conditions,” and that delays associated with “problems related to administration” were to be expected.43 For that reason, Justice Robert Jackson deemed that Brown was more politics and sociology than law.44

The Court was correct in anticipating a hostile response to its opinion. After ordering that desegregation proceed “with all deliberate speed,” 100 southern congressmen called the Court’s action “a clear abuse of judicial power … and [an] encroach[ment] upon the reserved rights of the States and the people”45 Many states sought to subvert Brown by replacing public school systems (subject to equal protection demands) with state-funded private school systems. Some school systems simply disregarded Brown. The most notorious example is Little Rock, Arkansas, where President Eisenhower was compelled to send in Army troops to force compliance with Brown.

Initially, the Eisenhower administration seemed reluctant to participate in Brown.46 Indeed, President Eisenhower amended the government’s brief in Brown I to encourage the Court to devise orderly plans that would take into consideration the fact that segregated systems had been sanctioned by the Supreme Court for over 50 years.47 He sought to publicly distance himself from the issue. Asked whether he agreed with the Court’s decision, Eisenhower stated: “[I]‌t makes no difference whether or not I endorse [Brown]. The Constitution is as the Supreme Court interprets it.”48 He revealed no appreciation for the role of the elected branches and the general public in shaping constitutional law, including the rights of blacks. In an address to the nation in 1957 concerning Little Rock, he pointed to his duty to carry out the decisions of federal courts and not the legal or moral correctness of Brown.49

One year after Eisenhower’s address, the Supreme Court declared Arkansas Governor Orval Faubus’s efforts to block school desegregation unconstitutional. The Court also proclaimed itself “supreme in the exposition of the law of the Constitution.”50 But this declaration mattered little to southern school officials. For these officials, there was no reason to openly defy the Court. Brown II’s emphasis on local conditions suggested that the Supreme Court would tolerate tokenism and delay. Indeed, southern newspapers heralded the remedial order, especially since the Court entrusted the implementation of its decision to “ ‘[o]‌ur local judges [who] know the local situation.’ ”51

After Brown and until 1964, the Court’s only foray into school desegregation was its Little Rock decision. In 1955, it refused to hear a challenge to Virginia’s miscegenation law. While the state court’s conclusion that the law was necessary to prevent “a mongrel breed of citizens” may well have offended the Justices,52 the Court wasn’t about to touch this issue, particularly after critics of Brown warned that integrated schools would produce a “mongrelization” of the white race. In this way, the Warren Court sidestepped an explosive confrontation with southern segregationists rather than risk “thwarting or seriously handicapping” its decision in Brown and, with it, its institutional prestige.53

This ambivalence on school desegregation, miscegenation, and other vestiges of Jim Crow spanned most of the Warren Court’s 16-year life. Remarkably, one decade after Brown, only 2 percent of black children attended biracial schools in the 11 southern states. In the 1965–1966 school year, the percentage of black children in biracial schools rose to 6 percent, still low but a sign of change. The turning point here was not hyped-up judicial enforcement; instead, the principal impetus to meaningful school desegregation was rooted in elected branch action.

By 1964 there was a growing recognition on Capitol Hill that “[w]‌e must simply face the fact that the decisions of the Supreme Court are not being carried out … and that unless we are to make a mockery of them … Congress must act to put the strength of the National Government behind them.”54 The judiciary also recognized the limits of court-centered approaches to school desegregation. The Supreme Court spoke of there being “entirely too much deliberation and not enough speed” in enforcing Brown,55 and a federal appellate court aptly noted that a “national effort, bringing together Congress, the executive, and the judiciary may be able to make meaningful the right of Negro children to equal educational opportunities. The courts acting alone have failed.56

The solution was the 1964 Civil Rights Act, which, among other things, authorized Justice Department participation in school desegregation litigation (Title IV) and demanded that federal grant recipients be nondiscriminatory (Title VI). Implementation of the Elementary and Secondary Education Act of 1965, coupled with the issuance and enforcement of guidelines for Title VI of the Civil Rights Act of 1964, marked a significant shift in federal power over state education systems. With Title VI’s demand that federal grant recipients be nondiscriminatory, Congress became willing to pump billions of dollars of aid for the compensatory education of educationally deprived children. These billions of dollars were sufficient incentive for many school systems to comply with federal nondiscrimination standards.

It was against this backdrop of increasing federal involvement in school desegregation that the Warren Court stepped up its own involvement, declaring in 1964 that “[t]‌he time for mere ‘deliberate speed’ has run out.”57 This parallelism should come as no surprise. With Congress and the White House both making equal educational opportunity a national priority and envisioning an increasing judicial role, political opposition no longer concerned the Court. Judicial involvement, instead, was consistent with initiatives taken by the elected branches and public opinion. In this way, the task of educating the nation and producing bipartisan support for enforceable civil rights fell not to the judiciary but to Congress and the President.

From the Great Society to the Southern Strategy

1960’s civil rights reforms extended well beyond school desegregation. Initiatives were also launched to ensure racial justice in housing, employment, and voting. As part of Lyndon Johnson’s “Great Society,” these programs were part of a “major assault on poverty in behalf of a more equitable, color-blind system of economic distribution.”58

The 1965 Voting Rights Act illustrates the impact of elected government on constitutional rights. The story begins in Selma, Alabama. On March 7, 1965, a peaceful group of 600 protesters marched against the continuing denial of black voting rights only to be tear-gassed and attacked “with clubs, whips, and ropes” by state troopers, as white spectators cheered.59 With television bringing pictures of this brutality into millions of homes, the Selma protest prompted a national outcry and immediate call for comprehensive voting rights legislation.

A week after the protest, on March 15, President Lyndon Johnson spoke to a joint session of Congress about the need for more effective voting rights legislation. The Emancipation Proclamation, Johnson said, was a promise of equality to black Americans: “A century has passed since the day of promise. And the promise is unkept.”60 Calling for immediate action to stop state officials from circumventing the Fifteenth Amendment, Johnson introduced his voting rights bill. The bill marked a dramatic restructuring of the existing voting system, shifting authority away from the states to the federal government. States could no longer use literacy tests and other methods to disenfranchise blacks. More striking, to prevent discriminatory voting practices from taking effect, most southern states had to have changes to their voting laws “precleared” by the Department of Justice or the D.C. Circuit.

The bill sharply increased minority registration and voting. In the targeted southern states, the percentage of black registered voters increased from 29 percent in 1964 to over 56 percent in 1972. The number of elected black officials nationwide increased from well under 100 in 1964 to 963 in 1974.61

The Warren Court supported elected-branch initiatives. In 1966, the Court upheld Justice Department preclearance authority as well as the literacy test prohibition.62 In 1969, the Court again sided with the Justice Department in rejecting Mississippi efforts to dilute minority votes by changing county elections from a single district scheme (where each district, including predominantly minority districts, would choose a representative) to an at-large scheme where voters pick and choose among competing slates of candidates in one county-wide election, with the candidates receiving the most votes filling all available seats (so that majority voters can block the election of minority candidates).63

The Warren Court did more than simply bless the civil rights initiatives of Congress and the White House. The Court also stepped up its pursuit of racial justice. In 1967, for example, the Court invalidated Virginia’s miscegenation law, concluding that “restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”64 The foundation for that ruling lay not in judicial decisions but in the political groundwork developed by the elected branches.

By 1969, however, Lyndon Johnson, Earl Warren, and other government officials who actively supported civil rights in the 1960s had vanished from the political scene. 1969 marked a sea change both at the White House and on the Supreme Court. On January 20, Richard Nixon became President. His presidential campaign prominently featured a “Southern Strategy” in which candidate Nixon promised, through administrative initiatives and judicial appointments, to ease pressure on southern school districts to end desegregation practices. With Earl Warren having announced his retirement before the 1968 election, Nixon attempted to reshape the direction of the Court by appointing Warren Burger as Chief Justice. Although federal court decisions continued to challenge local school policies and practices on questions of race, the “rare historic moment when the President, congressional leadership, and the public all recognized that protection of the rights of black Americans was the fundamental [social and educational] issue” had passed.65

The Politics of Forced Busing

By the end of the 1960s, the efforts of the federal government had dramatically eroded southern school segregation. Between 1963 and 1968, the percentage of black children in all-black schools in the South dropped from 98 percent to 25 percent.66 Nevertheless, the elected branches’ endorsement of Brown’s simple nondiscrimination demand was, from the start, tempered by opposition to forced busing. A provision of the Elementary and Secondary Education Act—enacted during the Great Society’s heyday—prohibited the use of federal funds for “the assignment or transportation of students or teachers in order to overcome racial imbalance.”67 Adding fuel to this opposition, President Nixon opposed “buying buses, tires, and gasoline to transport young children miles away from their neighborhood schools”68 and instructed the Office of Civil Rights (OCR)—as well as the Department of Justice—that “they are to work with individual school districts to hold busing to the minimum required by law.”69

Opposition to busing intensified after the Supreme Court, in 1971, decided in Swann v. Charlotte-Mecklenburg that court-ordered busing was an appropriate technique to desegregate the nation’s schools.70 Immediately after Swann, several members of Congress issued strong bully pulpit statements rebuking the Court. President Nixon delivered a national address on the evils of busing. Noting that concerned parents “do not want their children bused across the city to an inferior school just to meet some social planner’s concept of what is considered to be the correct racial balance,”71 he submitted legislative proposals that would have Congress designate a hierarchy of remedies in school desegregation lawsuits.72

Congress ultimately rejected the Nixon proposals, claiming that the Court’s status as co-equal branch warranted legislative respect to its constitutional holdings. In place of the Nixon proposals, Congress enacted, as Title VII of the 1972 Education Act Amendments, restrictions on both federal financial support of mandatory busing and federal advocacy of busing “unless constitutionally required.”73

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