Does the U.S. Supreme Court Protect Racial Minorities?

Leslie F. Goldstein explores instances throughout history where the Supreme Court weighed in on cases involving minorities.

After approximately forty years of teaching undergrad con law classes, sometime using law school casebooks, sometimes not, I was left with certain impressions from the impact of the con law “canon,” particularly on the subject of the rights of members of racial minorities. The casebooks that wanted historical depth might start with the egregious Dred Scott. More often they started with the Civil Rights Cases of 1883. Here one sees the Supreme Court declaring unconstitutional a progressive civil rights law adopted by Congress. Two for two with Court as bad guy. Third is Plessy v.Ferguson. Again, Court as bad guy. Next in the canon, Korematsu—all three branches baddies. Not until Brown v. Board, with its explicit reliance on the two 1950 cases of Sweatt v Painter and McLaurin v. Oklahoma does the Court begin to shine as “prevent[er of] oppressions against the minor party.” (Federalist #78) Then followed a gratifying slew of cases in the 1950s, 1960s, and 1970s where the Court pushed the country to desegregate. Granted, there are a few moderating moments –Milliken v. Bradley and San Antonio v. Rodriguez and Richmond v Croson—but on the whole, the Supreme Court was prominently a force for racial progress from around 1950 to around 1990.

In sum, the con law canon showed the Court as having a pretty terrible record on racial minorities except for forty years of U.S. history. (True, I left out the story of John Marshall, attempting in vain to uphold the rights of Native Americans against the state of Georgia in the early 1830s, but so do the casebooks.) It occurred to me to wonder—over the long haul, which one more typifies the role of the U.S Supreme Court as to racial minorities? Dred Scott and Korematsu, or Brown v. Board? Villain or hero?

So, I took a good hard look beyond the canon, examining systematically cases involving Native-Americans, African-Americans, Asians (and Asian-Americans), and Hispanic-Americans, and I compared the Court’s decisions to the contemporaneous policy tendencies of the elected branches. Some of the conclusions surprised me: for instance, the United States has produced four presidents who took a strong leadership role, as judged by the political context of their day, on behalf of black Americans. They were Abraham Lincoln, Theodore Roosevelt, Harry Truman, and Lyndon Johnson. The latter three all came to power as vice-presidents, succeeding a president who had died. Lincoln, the fourth, was elected in a multiparty race and won with a mere plurality of the vote. This fact is not particularly encouraging about the capacity of electoral majorities in the U.S. to produce leaders courageous about protecting unpopular minorities.

Some conclusions were not surprising: for instance, the Supreme Court exercised its power to protect members of all four groups against oppressive measures at the state level far, far more often than it did against Congressional measures. This finding vindicates the arguments in Federalist #10 for a large national system to replace the state-dominated system of the Confederation. Justices appointed by a nationally elected president and confirmed by the federal Senate are likely to have political sympathies with the dominant national political coalition. But this coalition often differs from particular state-level majorities, and these local majorities more often than not showed themselves in regional patterns to be more inclined to oppress Asian-Americans, American Indians, Latino-Americans, and African-Americans than the national government was. Indeed, even President Jackson, probably the most sincerely anti-Indian president ever to hold the office, was willing to use federal troops in both 1832 and 1833 to protect the Creeks of Alabama, as per our treaty agreement, when state level officials not only refused to do so, but actively assisted the white settlers who were unlawfully seizing Indian land.

The basic answer to the query that drove this book, is that whether the Court was more protective of a given minority than the elected branches turns out to have varied according to historical period and particular personnel. Which minority would get judicial protection also varied across periods and across branches. The Marshall Court did less than the elected branches did to check slavery or the slave trade: the elected branches took relatively firm stands against the international trade in slaves, and the John Quincy Adams administration wanted more slaves freed from the Antelope than the Court would agree to. On the other hand, the Marshall Court offered more protection to Native Americans than any other contemporaneous federal branch. Also members of the Marshall Court in Circuit-level cases granted legal protections to free blacks against imprisonment under the Southern Black Seamen Laws. The Taney Court during the years when Joseph Story provided its intellectual leadership (1835-1846) showed itself to be more antislavery than the elected branches; once Story left, however, the Taney Court protected no racial minorities (with the partial exception of Hispanic agricultural Indians), and the elected branches (1847-1860) were equally bad on the subject.

Similarly, during the years of the Fuller Court (1888-1910), all three branches behaved truly disgracefully toward the rights of black Americans, except for Teddy Roosevelt’s presidential tenure. His repeated efforts to enforce black civil rights were blocked by the Fuller Court. By contrast, the Fuller Court did offer some protections to Asians and Asian Americans, particularly against administrative overreach, and included the important ruling in the Wong Kim Ark case (1898) that Chinese-descent persons have birth-right citizenship if born within U.S. confines. This court also (eventually) stood up for American Indian treaty rights against state-level violations.

During the years of the Chase Court (1865-1873) and Waite Court (1873-1888), the policy making pattern was something of a mirror image of the Taney and Fuller Court years. All three branches immediately after the Civil War, when the Southern States had removed themselves from legislative power, acted, to some degree, to protect blacks, Asians, and Indians (the last, in the sense of respecting their quasi-sovereign status in the Fourteenth Amendment, but also legislating birth-right citizenship for those who were taxpayers and lived off the reservation). Then the Southern States re-entered Congress (by 1870) and the Northern Congressional electorate by the end of 1874 lost its zeal for protecting former slaves.

Nonetheless, after 1875, Republican Presidential administrations continued (through 1885) to offer a moderate degree of protection to blacks by prosecuting Southern civil rights violators, vetoing Congressional efforts to repeal voting rights enforcement laws (until they succeeded in 1894), enforcing strict equality of treatment in interstate commerce (through the late 1880s). Likewise, the Waite Court offered a moderate degree of protection: while throwing out several indictments for racial violence on the grounds of procedural inadequacies, nonetheless, the Court expanded the Fifteenth Amendment beyond its state-action-limited wording and upheld the rights of blacks to be tried only in systems that did not bar them from jury service. It also expanded rights of Asians against state-level (legislative or administrative) discrimination in the Yick Wo decision of 1886, protected a number of Asians against overzealous immigration agents, and in Ex Parte Crow Dog (1883) blocked executive efforts to seize jurisdiction over major crimes in Indian Territory (prior to Congressional action doing so).

Until the twentieth century, the pattern during the post-Story Taney Court, the Chase Court, the Waite Court and the Fuller Court is the dominant one: viz, the Supreme Court is more or less similar to the elected branches both for better and for worse, with periods of exceptions both for Indians and for Asians. Except for the post-Story Taney Court years, the U.S. Supreme Court prior to 1920 was consistently more protective of American Indians than the elected branches were, although the protection came only occasionally. The lone important exception to this statement is that the Congress that sent the Fourteenth Amendment to the states meant for non-reservation Indians to be covered by the birthright citizenship terms, but in 1884 (Elk v. Wilkins) the Supreme Court rejected this interpretation. Congress corrected this judicial move in the 1887 Dawes Act.

Similarly, from 1882, the time of the first Chinese Exclusion Act, until World War II, the Supreme Court was more protective of Asians that the elected branches were. Judicial power to protect American Indians or Asians or Asian Americans, however, was sharply circumscribed by Congress’s ability to override the Supreme Court’s legislative interpretations and to alter its jurisdiction.

In the twentieth century this basic picture shifted. Perhaps influenced by having just experienced its only original jurisdiction criminal trial to date—for contempt of itself in a racially inspired murder-by-lynching case– the post-Fuller twentieth century Supreme Court moved out ahead of the political branches on the matter of the rights of black Americans. It moved slightly but consistently ahead from the years 1911 until 1930. Then from 1930 until 1989 it was clearly ahead of the elected branches, with two exceptions: President Truman provided co-leadership in the years 1947-52; and during the 1964-1968 LBJ years, all three branches moved together to complete the unfulfilled promise of Reconstruction. This pattern of Supreme Court leadership on the civil rights of black Americans for eight decades, with strong leadership during the six later decades was not typical of the nineteenth century.

The twentieth century Supreme Court also offered occasional protection to Hispanics against state-level discrimination, as did presidents when diplomatic pressures made it expedient, and as Congress did in the 1965 Voting Rights Act and later amendments to it. There has been no clear institutional pattern on Hispanic Americans.

The treatment of American Indians changed fundamentally in the post-1920 period. Starting in 1928, both elected branches with the exception of the period of 1948-1959 moved decisively into the role of respecting traditional tribal culture and respecting tribal sovereignty, albeit with (as of 1968) protection for many civil rights of individual Indians with respect to their tribal government.

Similarly, the treatment of Asian-Americans changed fundamentally in the mid-twentieth century. World War II moved the elected branches, led particularly by presidents Truman through Johnson, to distinguish among Asians in a way that prioritized national identity over racial identity. Starting in 1943 with permission for the Chinese to become naturalized citizens and completed finally by 1965, U.S. immigration and naturalization laws were cleansed of their longstanding racial bias.

The fact that this study examined together the civil rights history of four different racial minority groups brought to light one final conclusion: to the degree that the judiciary has been an agent for establishing constitutional rights of racial minorities, there has been significant interdependence of minority rights from one group to another. Because of the American common law system, when appellate courts decide cases, they explain their reasoning in opinions that deduce general rules from prior cases and explain how these rules apply to the case at hand. Precedents build on one another. Thus, in the 1920s, when Justice Holmes wrote an opinion that began to establish the right to due process in criminal procedure of (even) black defendants in the South, he reached back indirectly to a due process precedent concerning an Asian, Sing Tuck. In the 1930s, when striking down as inadequate Missouri’s approach to “separate but equal” in higher education for black residents, the Supreme Court cited its own Chinese anti-discrimination decision, Yick Wo v. Hopkins (1886) and also the judicial guideline provided in the failed challenge by a Chinese-American to school segregation in Mississippi, the Gong Lum v. Rice (1927) case. The federal district court opinion for the school desegregation challenge brought by Mexican and Puerto Rican parents as Mendez v. Westminster (1946) provided the logic that undergirded the Supreme Court decisions on African American desegregation of Sweatt v. Painter (1950), McLaurin v. Oklahoma (1950), and Brown v. Board (1954). The World War II cases brought by Japanese Americans to challenge their mistreatment produced reasoning later deployed by the Supreme Court in deciding Bolling v. Sharpe (1954), and in the 1960s striking down of anti-miscegenation laws. Minority group attorneys tend to be aware of this interdependence, but the general, educated public may not be. A more widespread awareness of it may help to foster intergroup political alliances.

All this said, one can conclude that for most periods in the Court’s first two hundred years, the answer to my basic query, with important qualifications, is, Yes, the Court has, within strictures created by the Constitution, acted to protect rights of at least one or another racial minority group to a greater degree than elected branches have been willing to do.

Persons who want to see the whole study can order my book, The U.S. Supreme Court and Racial Minorities, which is now available.

Leslie F. Goldstein, Judge Hugh M. Morris Professor Emerita, University of Delaware, US

The US Supreme Court and Racial Minorities is available now.

Read Chapter 1: Minority Rights Up Through the Marshall Court, 1789-1835 free on Elgaronline.