March 15, 2013: Supreme Contexts: Plessy and Activism

[Later this month, the Supreme Court will hear its next two landmark cases, these related to the issue of same-sex marriage. So this week I’ll be highlighting five significant 19^th century SC decisions, and more exactly analyzing one key contextual frame for each. That’ll lead up to a special weekend post on the upcoming decisions. Add your judicious thoughts and takes in the comments, please!]

On the obvious reading of another of the Court’s worst decisions—and the arguments for seeing it in precisely the opposite way.

We’ve heard a lot in recent years, mostly in the context of the issue on which those upcoming Court cases will focus (same-sex marriage), about “activist judges” and “judicial activism.” Much of the time I find myself agreeing with those who have sarcastically noted that the phrases seem to mean “judges or courts that interpret and apply the law differently than I would.” But on the other hand, it is fair to note that there have been throughout American legal history moments that might objectively qualify for those categorizations, circumstances when, for example, the Supreme Court has broken with precedent and ruled based on social changes or the like; Brown v. Board of Education (1954) could be seen as such an instance. Whether we agree or disagree with the resulting rulings (and of course I do in the case of Brown), I can see how they could thus be defined as moments of “judicial activism.”

With that definition in mind, the Supreme Court’s infamous decision in Plessy v. Ferguson (1896) would seem to be the exact opposite of judicial activism; judicial conservatism, perhaps. After all, the Court’s reification of Jim Crow segregation in Plessy seemed to represent simply a judicial rubber-stamping of decades of accumulating discriminatory laws, including the Dred Scott decision about which I wrote two days ago as well as the numerous Black Codes and other racist and segregating laws created in the Reconstruction era and its aftermath. Such segregation had become, by the late 19^th century, not only the law of the land throughout the South but also quite common (if less consistently enshrined in specific laws) across the nation. And so it could be argued that if the Court had ruled against segregation (or at least the specific segregated railway cars that were the case’s focus), it would have been seeking to redirect dominant social and cultural trends in precisely the way implied by the phrase “judicial activism.”

Yet it’s just as possible, if not in fact more accurate, to call Plessy a more genuine and troubling kind of judicial activism. After all, whatever laws had been passed by state legislatures in the throes of white supremacist demogoguery, racial segregation seems clearly opposed to the 14^th Amendment and its guarantees of equal protection under the law for all American citizens (among many other details and aspects of the nation’s founding documents and ideas with which such segregation does not comport). For any court, and most especially the Supreme Court, to supercede such fundamental legal and civic ideas—cloaked in the “separate but equal” nonsense that fooled no one at the time, nor since—represents a particularly egregious kind of judicial activism, one that weds our most august legal body to the worst impulses of an era and American history. What could be more activist, that is, than converting the Supreme Court into an enforcer of racism?

Special post this weekend,

Ben

PS. What do you think?