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Pub Journal 1999 Vol 2.Pdf 1999 VOl. 24 NO. 2 JOURNAL OF SUPREME T HISTORY S UPRE M E CO URT H IST OR ICAL SOC IETY HONORARY CHAIRMAN Wil liam H. Rehnguist HONORARY TRUSTEES Byron R. White CHAIRMAN Dwight D. Opperman PRESIDENT Leon Silverman VICE PRESIDENTS Vincent C. Burke, J r. Fran k C. Jones Dorothy Tapper Goldman E. Ba rrett Prettyman, J r. SECRETARY Virgin ia W Daly TREASURER Sheldon S. Cohen TRUSTEES George R. Adams Charles O. GalVin Stephen W Nealon Osborne Ayscue Kenneth S. Ge ller Gordon O. Pehrson Vicror Battaglia Frank B. Gilbert Leon Polsky Herman Belz John D. Gordan, III Charles B. Renfrew Barbara A. Black Geoffrey C. Hazard J r. William Bradford Reynolds Hugo L. Black, Jr. Judith Richa rds Hope Harvey Ri shikof Edward Brodsky Ruth lnse! William P. Rogers Vera Brown Wil liam E. Jackson Jonathan C. Rose Wade Burger Robb M. Jon es Jerold S. Solovy Patricia Dwinnell Butler James J. Kilpatrick Kenneth Starr Benjamin R. Civiletti Peter A. Know les Cathleen Douglas Stone Andrew M. Coats Philip Allen Lacovara Agnes N. Williams William T. Coleman, Jr. Ralph 1. Lancaster, J r. Lively Wilso n F. Elwood Davis Jerome B. Libin W. Foster Wollen Geo rge Didden III Maureen E. Malloney CharIron Dietz Howard T. Markey John T. Dolan Mrs. Thurgood Marshall Robert E. Juceam, James C. Duff Thurgood Marsha ll , Jr. General Council Will iam Edlund Vincent L. McKusick John C. Elam Francis J. McNamara, Jr. David T. Pride, Jam es D. Ellis Joesph R. Moderow Executive Director Thomas W Evans James W. Morris, III Kath leen Shurtleff. Wayne Fisher John M. annes Assistant Director JOURNAL OF SUPREME COURT HISTORY 1999 vol. 24 no. Z PUBlICATIOf4S COMMITTEE E. Barrerr Prettyman, Jr., Cha irmml Donald B. Ayer Louis R. Cohen Charles Cooper Kenneth S. Geller James J. Ktlpatrick Melvin 1. Urofs ky BOARD OF EDITORS Melvin 1. Urofsky, Jr., Chairma n HeTman Belz D:wid J. Bodenhamer Kermit Hall Craig Joyce Laura Kalman Maeva Marclls David O'Brien Michad Parrish ED ITORIA L STAFF C lare Cushman, Managing Editor James 1. Kilpatrick, C01l5U lrillg Editor Jennifer M. Lowe, Consultillg Editor David T Pride, Consulting Editor Kathleen Shurtleff, Consultmg Editor Patricia R. Eva ns, Senior Researcher Jill Ann Du ffy, Researcher Savina Lambert, Photo Researche r D eb bie Finch, Typesetting and Layout Denise Arnot, Designer Paulette C. McG ee, Proofreader GENERAL STATEMENT THE SUPREME COURT HISTORICAL SOCIETY is a private non-profit organization, incorporated in the District of Columbia in 1974. The Society is dedicated to the collec­ tion and preservation of the history of the Supreme Court of the United States. The Society seeks ro accomplish its mission by supporting historical research, collect­ ing antiques and artifacts relating tot he court's history, and publishing books and other materials which increase public awareness of the Court's contribution to our nation's rich constitutional heritage. Since 1975, the Society has been publishing a Quarterly newsletter, distributed to its membership, which contains short historical pieces on the Court and articles detailing the Society's programs and activities. In 1976, the Society began publishing an annual collec­ tion of scholarly articles on the court's history entitled the Yearbook, which was renamed the Journal rJ Supreme Court History in 19 90 and became a trimester publication in 1999. The Society initiated the Documentary History of the Supreme Court of the United States, 1789-1800 in 1977 with a matching grant from the National Historical Publication and Records Commission (NHPRC). The Supreme Court became a cospon­ sor in 1979. Since that time the project has completed six volumes. The Society also copublished Equal Justice Under Law, a 165-page illustrated history of the Court, in cooperation with the National Geographic Society. In 1986, the Society cosponsored the 3oo-page Illustrated History of the Supreme Court of the United States. It sponsored the publication of the United States Supreme Court Index to Opinions in 198 1, and funded a ten-year update of that volume that was published in 1994. The Society has also developed a collection of illustrated biographies of the Supreme Court Justices which was published in cooperation with Congressional Quarterly, Inc., in 1993. This 5S8-page book includes biographies of all 108 Supreme Court Justices and fea­ tures numerous rare photographs and other illustrations. Now in its second edition, it is tided The Supreme Court Justices: Illustrated Biographies, 178~1995. In addition to it research/ publication projects, the Society is now cooperating with the Federal Judicial Center on a pilot oral history project on the Supreme Court. The Society is also conducting an active acquisitions program which has contributed substan­ tially to the completion of the Court's permanent collection of busts and portraits, as well as period furnishings, private papers and other artifacts and memorabilia relating to the Court's history. These materials are incorporated into displays prepared by the Court Curator's Office for the benefit of the Court's one million annual visitors. The Society also funds outside research, awards cash prizes to promote scholarship on the Court and sponsors or cosponsors various lecture series and other educational col­ loquia to fUrther public understanding of the Court and its history. The Society has approximately 5,800 members whose financial support and volunteer participation in the Society's standing and ad hoc committees enables the organization to fUnction. These committees report to an elected Board of Trustees and Executive Committee, the latter of which is principally responsible for policy decisions and for supervising the Society's permanent staff. Requests for additional information should be directed to the Society's headquarters at III Second Street, NE, Washington, D.C. 20002, telephone (202) 543-0400, or to the Society's web si te at www.supremecourthistory.org. The Sociery has been derermined digible to r<co rve rox drducriblc gifi:s under secti on 501 (c) (3) under the Internal Revenue Code. JOURNAL OF SUPREME COURT HISTORY 1999 vol. 24 no 2 I NTRODUCTION Melvin 1. UroJsky ARTICLES Post-Pless), Pre-Brown: "Logical Exactness" in Enforcing Egual Right Andmv Kull 155 A Time to Lose Paul E. Wilsoll 17 0 If . .. Jack Greenberg 181 African-American Rights After Brown Gerald N Rosenberg 201 A Half-Century of Presidential Race Initiatives: Some Reflections John Hope Franklin 226 CONTRIBUTORS 238 PHOTO CREDITS 239 Copyright ©l999 The Supreme Court H isrorical Society tI, Second Street, NE, Washington, D.C. 20002 ISB N 0-914785-/9-2 Introduction Melvin I. Urofsky Chairman, Board of Editors In 1938, in his famous footnote in the great chapters in American political and constitu­ Carolene Products case, Justice Harlan Fiske tional history. The role of the Supreme Court in Stone suggested that while economic regula­ declaring, as Chief Justice Earl Warren did in tion should receive only a review by Brown v. Board of Education, that segregation the courts, those laws restricting civil liber­ based on race is wrong, surely stands as one fo the ties or affecting "discrete and insular minori­ noblest moments in the Court's commitment to ties" required a more exacting scrutiny. Much equal justice under law. of the history of the Court in the six decades The road since Brown has not been smooth, since that case has revolved around the Court's and there are many people who believe that we as response to the pleas of minorities for the a society should be further along the road to real equality promised to them in the Fourteenth equality, that the Court should have done more to Amendment's Equal Protection Clause. quash not only de jure segregation but also the No minority has suffered more in Ameri­ badges of discriminiation that remained. But this can history than African-Americans, those view misinterprets the role of the judiciary in a brought here against their wili to be slaves in government of separated powers within the fed­ the English colonies and their descendants. eral system. Despite the promise of emancipation contained The articles in this issue of the Journal are in the Civil War amendments, blacks suffered derived from one of the most important and continuing discrimination after the end ofRe­ popular educational activities of the Society, its construction. The South's efforts to create a seg­ annual lecture series held in the courtroom of regated society received the Comt's imprima­ the Supreme Court. Each year we are pleased to tur in Plessy v. Ferguson, a decision that, how­ publish these lectures and thus make them avail­ ever justifiable at the time, has been roundly able to a wider audience. Our only regret on this criticized as wrogly decided by commentators issue is that Professor William Van Alstyne was covering the whole range of the jurisprudential unable, due to other commitments, to revise bis spectrum. talk on the pre-Pless), era and it to us in time Yet the abandonment of Plessy's separate­ for publication; we hope to be able to carry that but-equal doctrine also constitutes one of the article in a future issue. Post-Plessy, Pre-Brown: IlLogical Exactness" in Enforcing Equal Rights ANDREW KULLI I. In May 1896, the Supreme Court of the United States held in Plessy v. Ferguson2 that a Louisiana statute requiring that black and white rai Iroad passengers be transported in "equal, but separate" cars was consistent with the Fourteenth Amendment's guarantee of the equal protec­ tion of the laws. Actually the majority opinion implied much
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