The Supreme Court on Trial

Charles Hyneman

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351472982
• Edition: 1
• Topic: Law
• Subtopic: Courts
• Index: Law

Although it was written at a time of national self-criticism, The Supreme Court on Trial remains a classic examination of the place of the Supreme Court in the American political system. When originally published, the American people were engaged in a severe examination of their basic commitments, their way of life, and the direction they appeared to be going. The contemporary literature--over the air, in newspaper editorials and columns, in books and articles--was heavy with protest, admonition, and exhortation. Although the times are different, the issues raised in this volume continue to be important.

The American system exalts the American citizen as common man, with claims to the dignity of citizens, and pleas for securing their civil rights. At the same time, citizens are criticized for their cultural provincialism, fear of intellectual endeavor, and adoption of conformity. Political institutions are not immune from such evaluations. We have created Hoover commissions to study the national administrative system; the Electoral College has been the subject of persistent scrutiny since World War II. There have been demands for reconstitution of our state lawmaking bodies. What links the concerns current at the time of original publication of this volume and concerns today most obviously are deep concern we now display for the character and quality of our public school curriculum and for the administrative structure which maintains and manages our schools. The role of the Supreme Court in these concerns is evident.

The purpose of the book is to examine critically the place of the Supreme Court in our political system and to improve the public understanding of what the Supreme Court does, how its acts have been received, and how its way of influencing public policy is related to other methods of making public policy.

I • A Court on Trail

This book opens with a brief account of the Segregation decisions of 1954 and 1955—what the Supreme Court said and did and the relation of its words and acts to a changing interpretation of the equal-protection clause of the Constitution. This is followed, in Chapter II, by a resume of the attack on the Supreme Court which came in the wake of the Segregation cases. Chapters III and IV reach back into history to show that contemporary defiance of our highest tribunal has had many precedents. And Chapter V offers some explanation of why the nation has not lived comfortably under dramatic demonstrations of judicial power.

Chapter One
An End to Segregation

1. “Separate But Equal” Has No Place

2. A Bit Of Legal History

3. Growth Of a Principle

On May 17, 1954, the United States Supreme Court announced that racial segregation in public schools is forbidden by the Constitution. A year later, the same court issued orders telling federal and state judges how they should proceed in bringing segregation to an end. These decisions are known as “the Segregation cases.”

The Segregation cases combined five separate law suits, four of them relating to the schools of four states and one relating to the District of Columbia. The decisions which disposed of the first four suits were reported as Brown v. Board of Education of Topeka (347 U.S. 484). The decision applying to the District of Columbia appears in the reports as Bolling v. Sharpe (347 U.S. 497).

1. “Separate But Equal” Has No Place

Both the Brown and Bolling cases ruled that Negroes and whites may no longer be required to attend separate schools. In the Brown case, the Court asserted that enforced separation denies to Negroes the equal protection of the laws which the Fourteenth Amendment requires each state to extend to all persons within its jurisdiction. The Constitution does not specify that Congress, in making laws for the nation or for its territories, shall provide equal protection of the laws, but it does say, in the Fifth Amendment, that the national government shall not deprive any person of life, liberty, or property without due process of law. The Court ruled in the Bolling case that racial segregation in the public schools of the District of Columbia deprives Negro children of liberty without due process of law and is therefore forbidden by the Constitution.

Both decisions were reached unanimously. Both opinions were written by Chief Justice Earl B. Warren. The opinions were brief, to the point, and in language readily comprehensible to the layman.

We come then [said the Chief Justice in the Brown case], to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. . . . To separate them [grade and high school children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in their community that may affect their hearts and minds in a way unlikely ever to be undone. . . . We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. (Pp. 493, 495.)

The Chief Justice also quoted with approval part of the opinion written for one of the cases in a lower court.

Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system. (P. 494.)

The Bolling case throws no further light on the reasons for bringing segregation in the education of children to an end. The special significance of that case lies in the fact that the Court construed the due-process requirement to restrict national policy exactly as the equal-protection clause restricts the policy of state and local governments. In his opinion on the Bolling case, Warren said:

Although the Court has not assumed to define “liberty” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of con-duct which the individual is free to pursue, and it cannot be re-stricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause. (Pp. 499-500.)

In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be un-thinkable that the same Constitution would impose a lesser duty on the Federal Government. We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment of the Constitution. (P. 500.)

The decisions in the Brown and Bolling cases were announced and the two opinions of the Chief Justice read on May 17, 1954. On that day, the Court announced that it would delay the issuance of decrees until attorneys had presented further argument as to how the new interpretation should be made effective. A year later (on May 31, 1955), having heard argument, the Supreme Court remanded the five cases to the lower courts which originally heard them and instructed these courts “to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases” (Brown v. Board of Education of Topeka, 349 U.S. 294).

2. A Bit Of Legal History

If “equal protection of the laws” means identical application of the law to all persons or requires treatment which is absolutely the same in every respect, it is self-evident that legal separation of the races in schools is not equal protection of the laws. In that case, it would be irrelevant whether the separate schools were equal or unequal in tangible respects; it would be superfluous for a judge to point out that segregation generates a feeling of inferiority or has any other detrimental effect. If equal protection means treatment which is absolutely the same for all in every respect, would it not be unlawful to give the blind man state aid that is denied to the man with good eyesight? Unlawful to give the bright boy a scholarship at the state university but make the plodder pay tuition? Unlawful even to admit the six-year-old child to public school but make his younger brothers and sisters wait until they reach the prescribed age?

The fact is, of course, that U. S. judges have never contended that equal protection of the laws means identical application of the law to all persons. It is also a fact that they have not supplied us with language which makes clear just what equal protection does require. It has been said that “equal protection of the laws” is a catch phrase or slogan which only suggests a standard of conduct for government to live up to. This statement underestimates the guiding and restraining quality of the concept. But it must also be admitted that the most frequently quoted reformulations of the requirement leave wide range for speculation as to how the general rule is to be applied in specific situations. Consider these, changed slightly in phrasing because they are lifted out of the context of the judicial opinion in which they were uttered.

Equal protection of the laws merely requires that all persons subjected to a law shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. (Hayes v. Missouri, 120 U.S. 68, 71-72.)

Reasonable classification is permitted, but such classification must be based on some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed. (Southern Ry. Co. v. Greene, 216 U.S. 400, 417.)

The lawmakers of a state may classify the citizens of a state as helpless or not helpless, make clear what persons (for example, those without eyes or arms or legs) are to be viewed as helpless, and provide that the helpless shall receive assistance from the state which no one else may receive. The state may even give aid to blind men but deny it to men so badly crippled that they can do no work. Such classifications, the judges hold, bear a reasonable and just relation to a public policy of aiding the needy. They differentiate people according to the circumstances of their existence and fix the same privileges and liabilities for all persons who fall into the same group.

The Negro can be differentiated from the white, a fact amply proven by long-standing social practices throughout the United States. But are there circumstances which vary with color of sufficient significance to justify variance in the privileges conferred and the liabilities imposed on the two racial groups? Does a classification on the basis of color bear a reasonable and just relation to any legitimate objective of governmental action?

For a period of well over a hundred years and running at least until the Segregation cases which we have just examined, it was a rule of U. S. law that differential treatment of white men and those of other races was proper for a wide range of purposes. The landmark decision in which the Supreme Court acknowledged the legitimacy of racial segregation was Plessy v. Ferguson, decided in 1896 (163 U.S. 537). The issue before the Court was the validity of a Louisiana statute which required railway companies carrying passengers within the state to provide “equal but separate accommodations for the white and colored races” and forbade persons of either race to occupy any seats other than those assigned to that race. Seven of the eight judges who participated in the decision thought this classification of persons and differentiation of the treatment accorded to them reasonable and not a denial of equal protection of the laws. One justice dissented.

The majority opinion in Plessy v. Ferguson rested the validity of segregation on two main grounds: (1) there was abundant precedent for separation of the races in long-standing usage, and (2) separation of the races was a response to social conditions which law cannot eradicate and to which law must yield. On the first point, the opinion stated:

So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures. (Pp. 550-551.)

On the second point on which the Plessy decision was based, the reasoning was as follows:

The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. ... We consider the underlying fallacy of the plaintiffs argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. . . . The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits and a voluntary consent of individuals. . . . Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane. (Pp. 544, 551-552.)

The ruling in Plessy v. Ferguson was subsequently treated as good law, and its effect was extended far beyond the issue which was immediately before the Court in that case, racial segregation in railway cars. During the years from 1896 to 1954, many forms of racial segregation required by state law and local ordinance in the Southern states, in states outside the South, and in the District of Columbia were challenged in state and lower federal courts and were given judicial approval on the authority of Plessy v. Ferguson. In 1927, when the United States Supreme Court for the first time stated expressly that separate-but-equal educational facilities do not conflict with the requirement of equal protection of the laws, Chief Justice William Howard Taft was able to cite decisions of ten state supreme courts and three of lower federal courts to the same effect (Gong Lum v. Rice, 275 U.S. 78).

It will be clear from what has been said that, up to the 1954 decision of Brown v. Board of Education, the constitutional law of the country permitted discriminatory treatment on the basis of race or color as long as a decent showing was made that the treatment accorded one race was equal to that accorded the other. Separate schools were lawful as long as the education provided in the colored school was equal to that provided in the school for whites. Separate drinking fountains in the city hall were lawful if they were hooked to the same water supply, were placed in equally convenient locations, were kept equally clean. Assignment to separate parts of a bus was lawful if front and back seats were upholstered alike and front and back end of the bus traveled the same streets and stopped at the same corners.

This is how it was until 1954, when the Supreme Court terminated the separate-but-equal doctrine for public education and in so doing shook any legal rationale which might still be offered for separation of the races in other matters. The 1954 decision cannot have come wholly as a surprise to observant lawyers, for the successful assault had been presaged by two persistent attacks on the separate-but-equal doctrine.

First, there had been, during the six decades since Plessy v. Ferguson, a growing public conviction and an increasingly angry complaint that separate facilities, at least in most places in the Deep South, were not in fact anywhere near equal for the two races and that what was legally justified as separate-but-equal treatment was in intent and practical effect rank anti-Negro discrimination. The justices of the Supreme Court knew about this spreading conviction and stiffening antagonism simply because they read the newspapers, talked to people, and were alive. But they had it formally called to their attention in four cases that came to the highest tribunal for settlement in 1938,1948, and 1950. In each of these cases, Negroes sought admission to study in the graduate or professional schools of a state university. In each case, admission had been denied on the ground that the state had provided separate-but-equal opportunities for Negroes in a special university for Negroes only or by meeting his costs of education in nonsegregated universities outside the state. In each case, the protesting Negro argued that the opportunities afforded him were in fact not equal to the opportunities enjoyed by whites in their attendance at the state university. In each case, the Supreme Court inquired into the comparative advantages and disadvantages involved in the provisions for higher education, found that the provisions were in fact not nearly equal, ruled that the state had denied Negroes the equal protection of the laws, and ordered admission of the complaining Negroes to the university which the state made available to its white citizens.¹

In none of these four cases did the Supreme Court express itself on the question whether separate schools could ever be made equal. In refusing to speak to this point, it withstood for the time being a second persistent line of attack on the separate-but-equal doctrine. Ever since the Fourteenth Amendment was adopted, it had been argued in and out of court that the amendment was intended to outlaw all discrimination based solely on race, to outlaw differential treatment even though it be equal treatment. Precedent in pre-Civil War custom and legislation is irrelev...

Table of contents

• Cover Page
• The Supreme Court on Trail
• Copyright Page
• Preface
• Contents
• PART I. A COURT ON TRIAL
• PART II. CONSTITUTIONAL LANGUAGE AND JUDICIAL REVIEW
• PART III. THE SUPREME COURT AND PUBLIC POLICY
• PART IV. A NEW CONSTITUTIONAL REGIME?
• PART V. JUDICIAL POWER AND DEMOCRATIC GOVERNMENT
• APPENDIX: JOHN MARSHALL ON JUDICIAL REVIEW
• BIBLIOGRAPHIC NOTES
• INDEX