A People's History of the Supreme Court

by Peter Irons

  Two white neighbors in the District of Columbia, who had both signed covenants barring sales to blacks, got into a legal squabble in 1924 when one sold her home to a black woman. Ruling in 1926, the Supreme Court held in Corrigan v. Buckley that the Constitution did not prevent “private individuals from entering into contracts respecting the control and disposition of their own property.” The Court disclaimed any opinion on whether such covenants violated the Fifth or Fourteenth Amendment, holding only that judicial enforcement of the covenants did not constitute “state action” in such private suits.

  Two decades later, civil rights lawyers decided to launch another attack on restrictive covenants. The growing black migration to northern cities had created a demand for decent housing, but covenants excluded blacks from many neighborhoods. The Supreme Court, now dominated by “liberal” justices, seemed receptive to arguments based on Fifth and Fourteenth Amendment claims. Thurgood Marshall convened a meeting in July 1945 of lawyers interested in housing issues. He proposed bringing suits in several states, forcing the Supreme Court to accept one or more cases for decision. One lawyer at the conference, George L. Vaughn of St. Louis, predicted success in his city because “the Negro vote played such an important part in the election of judges” sympathetic to civil rights.

  Shortly after Vaughn returned to St. Louis, he learned that J. D. Shelley had been served with an eviction notice by Louis Kraemer. Shelley, a Mississippi native who had joined the black migration to northern cities in the 1930s, worked in a munitions factory in St. Louis during World War II. He and his wife, Ethel, put aside a little money each month, hoping to move with their six children from a crowded apartment in the city’s black ghetto into their own home. Their pastor, Robert Bishop, was also a real-estate agent and a friend of George Vaughn’s. Bishop found the Shelleys a yellow-brick house on Labadie Avenue, a tree-shaded street in the Grande Prairie neighborhood. Most of the neighbors were white, but the Shelley kids made friends and people were friendly. However, Louis and Fern Kraemer, who lived ten blocks away, were not friendly to J. D. and Ethel Shelley. The Kraemers sent a process server to their doorstep with a court summons, which informed the Shelleys that their property deed included a covenant, recorded in 1911, barring ownership or occupancy of any house on their block “by people of the Negro or Mongolian Race.”

  Reverend Bishop related the Shelleys’ legal plight to George Vaughn, who was delighted to find a client and took the case without fee. Judge William Koerner presided at the trial in October 1945 and asked Ethel Shelley, when she took the stand, if she knew “why you have been sued and why you are here.” She certainly did know. “Well, I understand the white people didn’t want me back.” Vaughn claimed the covenant had never been enforceable because nine of the thirty-nine owners on the block in 1911 had not signed the document; he also noted that five houses on the block had been occupied by blacks, going back to 1882. The covenant’s purpose, to keep any blacks from living on the block, had never been met. Vaughn also argued that judicial enforcement of the covenant would violate the federal Civil Rights Act of 1866, which extended to newly emancipated blacks the same right to buy and sell real property “as is enjoyed by white citizens.”

  Judge Koerner’s ruling justified Vaughn’s prediction of judicial sympathy in St. Louis. He based his decision on a single point. The covenant was intended to bind property owners on Labadie Avenue only if “all the landowners should sign.” Because nine had not signed in 1911, and black families had lived on the block for many years, Koerner refused to enforce the covenant against the Shelleys. But the Missouri supreme court reversed his judgment in December 1946. Judge James Douglas held that the covenant was intended “to cover only the property of those owners who signed it.” The original signatories knew that blacks lived on the block and “it must have been their intention to prevent greatly increased occupancy by negroes.” Judge Douglas also cited the Corrigan case in ruling that judicial enforcement of restrictive covenants did not constitute “state action” under the Fourteenth Amendment.

  During 1946, judges in Michigan and the District of Columbia also rejected attacks on restrictive covenants in cases brought by NAACP lawyers. Thurgood Marshall still wanted to bring appeals to the Supreme Court, but he also wanted to present the justices with evidence on “the economic and social aspects of race restrictive covenants,” which was lacking in the three cases already decided. He called another meeting in January 1947 and urged civil rights lawyers to begin another case, with testimony by prominent social scientists. George Vaughn, who did not attend this meeting, upset Marshall’s cautious strategy by filing a Supreme Court appeal in Shelley v. Kraemer in April 1947. This move upset Marshall, who quickly rushed the Michigan and District of Columbia cases along; the Court agreed to hear all the appeals in January 1948.

  Marshall did manage to prepare a brief with material on the impact of restrictive covenants on housing segregation; he also enlisted fifteen amicus groups, including Jewish, Protestant, Japanese American, Native American, labor, and fraternal organizations. The Truman administration also filed a brief arguing that federal efforts to “clear and replace slum areas” were hindered by racial covenants, which deprived “minority racial groups” of access to decent housing. Marshall hoped to impress the Court with the broad coalition against racial and religious covenants.

  The Court was impressed. George Vaughn gave a powerful oration in the Shelley case, telling the justices that his father had been born into slavery and that Congress had passed the Civil Rights Act in 1866 to give blacks like his father the right to own property on an equal basis with whites. Vaughn ended with a shout that startled the justices. “The Negro knocks at America’s door,” he thundered, “and cries out: ‘Let me come in and sit by the fire. I helped build the house.’ ” Thurgood Marshall and Solicitor General Philip Perlman spoke in quieter words for the NAACP and the federal government.

  Only six justices heard the arguments and voted in Shelley and its companion cases, decided on May 3, 1948. The Court’s official report stated blandly that Stanley Reed, Robert Jackson, and Wiley Rutledge “took no part in the consideration or decision of these cases.” They most likely held property covered by restrictive covenants and felt that voting would pose a conflict of interests. Chief Justice Fred Vinson wrote for the remaining justices. Property owners had the right to adopt restrictive covenants, he said, but they could not ask the courts to enforce them. “The Constitution confers on no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals,” Vinson asserted. In effect, the Court created in Shelley an exception to the old legal maxim that there exists “no right without a remedy.” The Kraemers had no legal remedy for their right to dislike the Shelleys.

  The Supreme Court decided the Shelley case just after the Democratic national convention, at which most delegates from the former Confederate states bolted from their party over its strong civil rights plank. The defecting Dixiecrats formed the States’ Rights Party and chose Senator Strom Thurmond of South Carolina to carry the segregationist banner against Harry Truman in 1948; Thurmond won close to a million votes and almost cost Truman his narrow victory over Republican Thomas Dewey. One of Thurmond’s supporters, Mississippi congressman John Rankin, thundered on the House floor that “there must have been a celebration in Moscow” when the Court struck down racial covenants. There was certainly a celebration at 4600 Labadie Avenue in St. Louis. Ethel Shelley expressed her reaction to news that her family could keep their new home: “My little soul is overjoyed. I’ll tell the Lord of my thankfulness.”

  The graduate school cases of Heman Sweatt and George McLaurin finally reached the Supreme Court for argument in April 1950. The NAACP’s briefs in both cases offered the justices a choice: they could order states to equalize school funding, or they could overrule Plessy and rule that racial segregation violated the Constitution. The Court�
��s decisions would help NAACP lawyers determine their strategy in school cases from the Deep South. Perhaps the time was near for the final assault on segregation.

  Thurgood Marshall argued for Heman Sweatt, and his young NAACP assistant counsel, Robert L. Carter, for George McLaurin. Both lawyers urged the Court to overrule the Plessy decision. Marshall pointed out the physical inequality of the separate Texas law schools, but he focused on the issue of racial segregation. “They can build an exact duplicate but if it is segregated, it is unequal,” he said. The attorneys general of the eleven former Confederate states filed an amicus brief that dropped any pretense of legal argument. Southern whites, they warned the justices, do not “want their women folk in intimate social contact with Negro men.” Enforcing this taboo required segregation at every educational level, from kindergarten to graduate school.

  The justices declined Marshall’s appeal to overrule Plessy, and they ignored the southern appeal to sexual fears. Chief Justice Vinson wrote for a unanimous Court in both cases. His opinion in Sweatt v. Painter accepted Marshall’s invitation to look closely at the Texas law schools, white and black. After comparing their facilities, Vinson found it “difficult to believe that one who had a free choice between these law schools would consider the question close.” The answer depended not only on factors like books and buildings, he added, but also on “those qualities which are incapable of measurement but which make for greatness in a law school.” The black school could not match the “reputation of the faculty” and “influence of the alumni” that added to the “rich traditions and prestige” of the white school. The Court ordered that Heman Sweatt “be admitted to the University of Texas Law School” without delay.

  George McLaurin had already been admitted to the University of Oklahoma graduate education school. The only question in his case, Vinson wrote in McLaurin v. Oklahoma State Regents, stemmed from his separation from other students in the classroom, library, and cafeteria. “Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession,” Vinson concluded. McLaurin “must receive the same treatment at the hands of the state as students of other races,” the Court instructed his instructors. The “colored” signs came down, and McLaurin finally taught the university a lesson.

  The Supreme Court handed down its Sweatt and McLaurin decisions on June 5, 1950. Twenty days later, North Korean soldiers crossed the 38th parallel to invade South Korea. The Cold War suddenly turned hot. American troops joined the United Nations “police action” in Korea and pushed the North Koreans back into their own territory, almost to the Yalu River border with Communist China. General Douglas MacArthur, who commanded the American military forces, promised they would be home for Christmas. But he could not keep that promise, as Chinese “volunteers” poured across the Yalu River and forced MacArthur’s troops down the bloody peninsula in disordered retreat.

  The rout of American forces in Korea took place as the Supreme Court heard arguments in a case that threatened a retreat from First Amendment values. This case, Dennis v. United States, began in July 1948 with the federal indictment of twelve Communist Party leaders for conspiring to “teach and advocate the overthrow and destruction of the government of the United States by force and violence.” Eugene Dennis, the party’s general secretary, headed the list of defendants, which included most of the party’s national committee. They were charged with violating the Alien Registration Act of 1940, better known as the Smith Act after its House sponsor, Howard Smith of Virginia. Congress decided to punish American Communists for backing the Hitler-Stalin pact of 1939, which created the “unholy alliance” of German Nazis and Soviet Communists while France and England fought for their lives against Hitler’s forces. The Smith Act made it unlawful to advocate “the propriety of overthrowing or destroying any government in the United States by force and violence.” The law also punished those who organized any group that advocated revolution or circulated literature with such advocacy.

  Ironically, after Germany invaded Russia in June 1941, American Communists had dropped their red banners and loyally waved the Stars and Stripes. They did not even field a candidate against President Roosevelt in 1944, and they vocally supported the “people’s war” against fascism. In fact, the Communist Party disbanded in 1944, becoming the “Communist Political Association” with a platform of peaceful social change. The former revolutionaries now sounded like a left-wing American Legion. But in 1945, as the Soviets began pulling an “Iron Curtain” across Europe, American Communists heeded orders from Moscow and brought their party and its red flags out of mothballs. The party’s newspaper, the Daily Worker, now bristled with denunciations of President Truman and his “saber-rattling” foreign policies. With the 1948 elections approaching, Truman actually welcomed the party’s hostility; Democrats had lost control of Congress in 1946 and wanted to deflect Republican charges they were “soft on communism.” Attorney General Tom Clark privately doubted that American Communists posed a “clear and present danger” of revolution, but he approved their prosecution after Truman launched his reelection campaign.

  The case against Eugene Dennis and his fellow Communists resembled the earlier prosecution of left-wing propagandist Benjamin Gitlow, whose conviction for violating New York’s “criminal anarchy” law was based solely on his distribution of literature calling for “proletarian revolution” against the “capitalist state.” No evidence connected Gitlow to any concrete plans to instigate an insurrection at any time, but the Supreme Court ruled in 1925 that his “utterances” endangered “the security of the State” and threatened “ultimate revolution.” Very few of the “utterances” for which the government prosecuted Eugene Dennis and his comrades came from their mouths or pens; Justice Department lawyers based their case largely on the words of foreign revolutionaries who had never set foot in the United States. The bulk of the government’s evidence, in fact, came from the writings of Karl Marx, Vladimir Lenin, and Joseph Stalin, published between 1848 and 1929.

  The trial of the American Communists began in March 1949 at the federal courthouse in New York Outside the Foley Square judicial fortress, pickets chanted, “Hey judge, we won’t budge, until the twelve are free.” Inside the courtroom. Judge Harold Medina presided over his first criminal trial; his short temper and obvious sympathy for the prosecution sparked outbursts from defense lawyers and prompted reporters to call the trial “the Battle of Foley Square.” Prosecutors asked the jurors, carefully screened by FBI agents for loyalty, to connect the Communist Party leaders with the Soviet government. Given the American party’s membership in the Communist International, which was headquartered in Moscow, this proved an easy task.

  Prosecutors had a harder time showing that the defendants themselves advocated “force and violence” against the American government. Judge Medina helped out by ruling that because Lenin and Stalin had advocated “the violent shattering of the capitalist states,” circulating their writings showed that American Communists were “basically committed to the overthrow of the Grovernment of the United States” by violent means. But the writings of Lenin and Stalin conflicted with the American party’s 1945 constitution, subjecting any member who conspired or acted to overthrow “the institutions of American democracy” to immediate expulsion. Medina allowed Louis Budenz, a former Daily Worker editor and now the government’s prize witness, to tell jurors that such “Aesopian” language was merely “window dressing asserted for protective purposes” against Smith Act prosecutions. Medina’s ruling placed the defendants in a Catch-22 dilemma: their disavowal of revolutionary acts proved their intention to commit them. The judge virtually instructed jurors to disregard the protestations of defense witnesses that the party’s constitution meant exactly what it said.

  When the Foley Square trial concluded in October 1949, Medina instructed jurors that all they needed to convict the defendants wa
s “language” in Communist literature showing the party’s intention to overthrow the government “as speedily as circumstances would permit.” They could infer that intention from the words of Marx, Lenin, and Stalin, even though the defendants had denied endorsing their calls for violent revolution. The jurors worked speedily as well; after hearing eight months of testimony, they deliberated just eight hours before returning guilty verdicts against eleven Communist leaders (William Z. Foster, the party’s elderly chairman, had his case severed for health reasons). Judge Medina imposed five-year sentences on all but one defendant, who had won the Distinguished Service Cross for heroism in the South Pacific and received a three-year term in reward. For good measure, Medina sentenced five party lawyers to jail terms for contempt of court, getting the last word in his courtroom arguments.

  Eugene Dennis and his fellow Communists, now branded as felons by Judge Medina, asked a federal appellate panel to reverse their convictions on First Amendment grounds. Three judges of the Second Circuit Court of Appeals, all elderly Republicans appointed by President Calvin Coolidge, heard the case in June 1950. Even before argument began, Judges Harrie Chase and Thomas Swan made clear their hostility toward the defendants, refusing them permission to travel outside New York to make speeches and raise funds for their appeal. Chase denounced the “shocking” idea of letting the Communists “try their cause in public.” Swan commented sourly that he was prepared to “have all the oral argument we can stomach.” In a highly unusual move, armed guards were stationed outside the courthouse and inside the courtroom.