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The Road to Equality: Black Liberation and the Supreme Court
on June 19, 2008
Professor Klarman's book is a study of the interplay between Politics, Social Forces, and legal doctrine. He's searching for the links between political realities and legal rulings. How are they shaping each other? In studying the relations between the decisions of the US Supreme Court and the reality of White-Black relations in the American South, Klarman's conclusion is that the Supreme Court's opinions are very much shaped by the social and political realities. The effect of the Supreme Court's decision on the political landscape is more subtle.
Between the 1890s and the outbreak of the Second World War, the Court's rulings became slowly but steadily more pro-blacks. The earlier decisions were epitomized by the Plessey case, which held that states were allowed to discriminate in public transportation. Only one Justice, former slave-owner John Marshall Harlan had dissented, and argued that the "constitution is color-blind". But even Harlan did not doubt the propriety of segregation in education, and neither he nor any other Justice did much to prevent Lynching, voter intimidation, all-white-Juries and a variety of other discriminatory practices.
In this, the Justices were very much men of their time, an era of unquestioned white supremacy. America was a white man's land; with the Civil War receding into distant memory, White Northerners, who faced increasing immigration of blacks, Asians, and East Europeans, did not feel compelled to intervene on behalf of Southern Blacks.
But even if the Justices were inclined to combat Jim Crow (the popular name of the racist Southern regime), there was not much they could have done. Unlike the post-World War 2 era, the Federal government was not closely engaged within Southern states. Thus the Court's decisions had to be executed by Southern Judges, Politicians, and Policemen - the very leaders of Jim Crow. Furthermore, the legal segregation and discrimination were mostly formalities. Jim Crow kept Blacks "in their place" with the hanging rope and the burning cross, with economic sanctions and social intimidation. Whether their misery was legally sanctioned or not could not have made a large difference in the daily lives of Southern Blacks.
From the outbreak of the First World War to the outbreak of the second, race relations in America slowly improved, and the Judges' decisions became increasingly, albeit subtly, black-friendly. Beaten confessions were thrown out; patently racist disenfranchising laws were declared unconstitutional. The Justices for the first time inferred discrimination in Jury selection from the fact that Juries were, de facto, always white.
But the changes were slow. Only with the creation of Roosevelt's Court, with the appointment of new Justices such as Hugo Black and William Douglas, did the Court stridently strike against segregation and Jim Crow. The shift in the Court during and after the Second World War reflected the social changes in American society, which has become more egalitarian as the economic and political power of Blacks increased, as the nation was becoming more unified, and as revulsion of Fascism translated into widespread anti-racist views. The Cold War also played its part: When America competed for the alliance of Non-Western Countries, Jim Crow has become a liability and an embarrassment.
The New Deal Justices, and their successors, were strongly committed to destroying the racist policies of the South. They ruled against segregation in higher education, against all-white political primaries, against unfair police practices. And most famously, they hit the Apartheid's system's most cherished institution. The landmark case of "Brown vs. Board of Education" barred segregation in public schools.
Brown, Klarman argues, had a paradoxical effect: It made things better by first making them worse. Brown led to desegregation of the boarder South, but not in the Deep South. There, Brown's effect was to radicalize the white population. Before "Brown", Southerners were inclined to allow Jim Crow to be chipped away - the desegregation of higher education and public accommodation caused little or no fuss, and the opposition to voting rights was hardly insurmountable. Southern politicians in the pre-Brown era downplayed the racial element and focused on common 1940s and 1950s era issues: social programs and communist-baiting.
But after Brown, moderation in the South was dead. Rallying against the Northern intervention, moderate Southern politicians either lost their job (Alabama governor Big Jim Folsom) or transformed into fire-breathing segregationist demagogues (the infamous successor of Folsom, George Wallace, who had been a relative moderate in the 1940s and early 50s, as evidenced by his refusal to follow the Dixiecrats in 1948). Accommodation was out - resistance and rebellion became the rule for Southern whites.
The growing belligerency of Southerners played right into the hand of the new generation of social activists, led by Martin Luther King. With boycotts, "Freedom Rides", sit ins, and mass demonstrations, the protestors courted Southern violence. With the flames fanned by segregationist political leadership, Southerners lashed out against schoolchildren, white liberal college students, and ordinary middle class African Americans. The national opinion, formerly weary of forced desegregation, swung. Buoyed by public opinion, Presidents Kennedy and Johnson pushed through Congress a radical Civil Rights agenda. Now King and his supporters had the government on their side, and the opposition to desegregation crumbled.
Thus, Klarman argues, by striking at the heart of segregation, the Supreme Court's decision transformed the struggle for Civil Rights from a gradualist movement to a radical one. This is how, because of "Brown", Jim Crow came to an end: not in a whimper, but in a bang.