The Anniversary of Plessy v. Ferguson, Another Low Point for the United States Supreme Court

On May 18, 1896, the Supreme Court of the United States decided Plessy v. Ferguson, 163 U.S. 537 (1896).  This is another of the Court’s “Supreme Mistakes,” as voted by legal scholars.  The decision was 7-1, with Justice Brown writing the majority opinion and Justice Harlan authoring the dissent.  Justice Brewer did not participate.

Louisiana had a statute that required “equal but separate” (not the reverse, as we usually hear and say) passenger cars for railroads other than “street railroads.”  Railroad personnel were required to assign passengers to “the coach or compartment used for the race to which such passenger belongs,” and a passenger who did not accept his or her assigned seating could be fined $25 (a significant sum in those days) or jailed.  There was an exception to the segregated seating requirement for “nurses attending children of the other race.”

Plessy alleged that the was seven-eighths white and one-eighth black, and that since “the mixture of colored blood was not discernible in him, … he was entitled to every right, privilege and immunity secured to citizens of the United States of the white race.”  Accordingly, when he boarded an East Louisiana Railway train, he took a seat in a railroad car reserved for whites.  When a conductor ordered him to move to seating for “colored” people, Plessy refused to comply.  Facing criminal charges, he contended that the statute violated the Thirteenth and Fourteenth Amendments to the United States Constitution.  The Supreme Court rejected his arguments.

The majority quickly dispatched the Thirteenth Amendment argument.  That provision applied only to slavery, and, quoting the Civil Rights Cases, 109 U.S. 3 (1883), “[i]t would be running the slavery argument into the ground to make it apply to every act of which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre. or deal with in other matters of intercourse or business.”  A statute that “implies merely a legal distinction between the white and colored races … has no tendency to … reestablish a state of involuntary servitude.”

The intent of the Fourteenth Amendment, the majority said, 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 on terms unsatisfactory to either.”  Justice Brown pointed to cases from all over the country that had upheld “the establishment of separate schools for white and colored children,” as well as other contexts in which “equal but separate” had been approved.

Plessy argued that if this law were permissible, it would also be permissible to separate rail passengers by hair color or nationality, or to allocate one side of a street for each race to walk on, or to perpetrate other similar forms of discrimination.  The majority retorted that the question was one of reasonableness, and that in determining reasonableness, the Louisiana Legislature was entitled to “a large discretion,” and to rely on “the established usages, customs, and traditions of the people, with a view to the promotion of their comfort and the preservation of the public peace and good order.”  Again, Justice Brown found the statute no “more obnoxious to the Fourteenth Amendment” than were statutes mandating separate schools for “colored children.”  These repeated references to school segregation would later lead to the overruling of this opinion in Brown v. Topeka Bd. of Educ., 347 U.S. 483 (1954).

There followed what is perhaps the most famous language of the majority opinion.  Justice Brown said that Plessy’s argument rested on the notion that “the enforced separation of the two races stamps the colored race with a badge of inferiority.  If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”  Moreover, legislation could not change social mores and beliefs, and any “attempt to do so can only result in accentuating the difficulties of the present situation.”

Even Justice Harlan’s dissent argued that the statute was unconstitutional as imposing a “badge of servitude,” and that the Thirteenth, Fourteenth, and Fifteenth Amendments together were intended to give equal rights to a race that had recently been enslaved.  He cited the Supreme Court’s decision that blacks could not be excluded from jury service, and found that persuasive in Plessy’s case.  He then said that “[t]he white race deems itself to be the dominant race in this country.  And so it is in prestige, in achievements, in education, in wealth and in power.”  But then Justice Harlan added “There is no caste here.  Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law.

Justice Harlan went on to predict that Plessy would “in time, prove to be quite as pernicious” as the Supreme Court’s decision in Dred Scott v. Sandford, 60 U.S. 393 (1857), which had held that blacks could not be citizens or sue in federal court.  Justice Harlan was right about that.  As noted above, in 1954, the Supreme Court repudiated Plessy and overruled it in Brown v. Board of Education.