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Former Supreme Court Justice Souter Defends Plessy v. Ferguson

Reductio ad absurdum.

12:00 AM, Jul 14, 2010 • By ABRAM N. SHULSKY and JOHN F. BURLEIGH
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If someone whom a Republican president had appointed to a high government position were to give a speech defending the Supreme Court’s decision in Plessy v. Ferguson, which upheld racial segregation under the heading of “separate but equal,” one would expect a political firestorm.  Yet when just such a speech was recently given, it was greeted with “feelings of relief and joy” by Linda Greenhouse of the New York Times and other liberals. What gives?

Former Supreme Court Justice Souter Defends <i>Plessy</i> v. <i>Ferguson</i>

Photo Credit: Flickr user Harvard Law Record, by Matthew Hutchins.

The speech in question was the Harvard Law School commencement address on May 27 of recently retired Justice David H. Souter. That it should take such a tolerant, not to say approving, view of the Supreme Court decision widely understood as the constitutional bedrock of Jim Crow is, indeed, appalling – and yet ultimately not surprising, given the mode of constitutional jurisprudence that the speech defends.

According to the speech, the majority in Plessy not only intended to uphold the guarantee of equal protection, but they in fact succeeded:  “Members of the Court in Plessy remembered the day when human slavery was the law in much of the land.  To that generation, the formal equality of an identical railroad car meant progress.” Thus, according to Souter, for its time, in 1896, Plessy seems to have been decided correctly, just as Brown v Board of Education, for its time, in 1954, was decided correctly.  “But the generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast.  As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see,” Souter said.

Although Souter sees “separate but equal” as evidence of progress in race relations, the history of the period hardly supports this view.  For example, the majority opinion in Plessy notes that the “colored race” had been the “dominant power in the [Louisiana] state legislature.” Why people who had been able to vote and to exercise their political rights to the extent of having a “dominant power” in the state government should see access to passenger cars as good as everyone else’s as progress isn’t at all clear.

The 1890s were a period of reaction against Reconstruction and the drive for civil and political equality for blacks. People at the time understood this.  Jim Crow-style segregation wasn’t a mark of progress in terms of racial relations, but a symbol of reaction against the post-Civil War amendments’ attempts to introduce civil and political equality.  Souter could have learned this from Justice John Marshall Harlan’s dissent in Plessy; but he strangely ignores that famous document in his discussion of the case. Indeed, given Souter’s understanding of the state of opinion in the 1890s, one wonders how he would explain the existence of Harlan’s dissent in the first place.

Harlan asserts the obvious – that requiring segregation with respect to railroad travel is intended as a badge of inferiority, regardless of the supposed requirement that the accommodations for each race be “equal.”  “The real meaning of the legislation,” Harlan asserts as an obvious fact that “all will admit,” is that “colored citizens are so inferior and degraded that they cannot be allowed to sit in coaches occupied by white citizens.” 

Faced with the argument that, as a formal matter, the Louisiana law applied equally to both whites and blacks (whites were as forbidden to sit in the car designated for blacks as blacks were in the car designated for whites), Harlan was willing to take judicial notice that the clear purpose of the law was “to compel the latter [i.e., blacks] to keep to themselves while traveling in railroad passenger coaches. No one,” Harlan continued, “would be so wanting in candor as to assert the contrary.” 

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