From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality.

• Author: Bernstein, David E.
• Position: Book Review

From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. By Michael J. Klarman. * New York: Oxford University Press, 2004. Pp. 655. $35.00.

CONTENTS INTRODUCTION I. SUMMARY OF KLARMAN'S THESIS A. The Plessy Era B. The Progressive Era C. The Interwar Period D. The World War II Era E. Brown v. Board of Education and Its Aftermath II. WHY JUDICIAL POWER MATTERS: ANALYTICAL FOUNDATIONS A. Jim Crow and the Logic of Collective Action 1. Collective Action as an Obstacle to White Cooperation in Suppressing Blacks 2. The Cases of Labor Mobility and Housing Segregation 3. Using Collective Action Theory To Help Explain Variation in the Effectiveness of Judicial Intervention on Behalf of Blacks B. Cost Externalization C. Cost Minimization: Raising the Price of Oppressive Policies D. Judicial Power and the Rise of External Social Forces Favoring Blacks E. Causes of Judicial Independence 1. Life Tenure and Relative Insulation from Political Pressure 2. Generational Cohort Effects 3. Selection of Justices from Unrepresentative Subgroups Within the Population III. RACE AND THE SUPREME COURT IN THE PROGRESSIVE ERA A. The Puzzle of the Progressive Era Race Decisions B. The Peonage Cases C. McCabe v. Atchison D. Buchanan v. Warley 1. Buchanan and the Rise and Fall of Housing Segregation Laws. 2. Buchanan as a Civil Rights Decision 3. Buchanan's Underrated Impact E. Why the Court Acted as It Did F. The Impact of the Progressive Era Cases IV. BROWN AND BACKLASH A. Brown's Neglected Anticipatory Impact B. Why the Backlash to Brown? 1. The Puzzle of Massive Resistance to an Ineffective Decision 2. Was Massive Resistance Needed To Prevent Brown from Having a Greater Impact? a. Evidence That Massive Resistance Was Necessary To Obstruct Enforcement of Brown b. Why Evasion Might Not Have Been Enough C. Cost Minimization and Brown's Impact CONCLUSION INTRODUCTION

No line of cases enhanced the prestige of the Supreme Court as much as Brown v. Board of Education (1) and other decisions vindicating the rights of African Americans. Initially, Brown was criticized by some prominent liberal legal scholars for overruling the democratic process in a way reminiscent of hated Lochner-era jurisprudence. (2) Later, once a liberal consensus favoring Brown coalesced, and Brown came to be seen by liberals as a courageous, important, and correct decision on behalf of civil rights, the anti-Brown banner was raised, if at all, only by some conservatives opposed to what they perceived as the Court's illegitimate judicial activism. (3)

In recent years, however, liberal adulation of Brown has come under severe criticism from revisionist scholars associated with the political left. 4This time, the charge is not that Brown was wrongly decided or otherwise improper as a matter of constitutional law. Rather, Brown revisionists argue that both scholars and the popular media have vastly exaggerated the importance of Brown to the African-American freedom struggle. Moreover, the revisionists suggest that Brown, by focusing the energies of liberal advocates of social change on what the revisionists see as largely unproductive litigation, has actually retarded the progressive agenda. (4)

Michael J. Klarman's From Jim Crow to Civil Rights (5) is an impressive addition to the revisionist literature. Klarman pays close attention to the social and political context of civil rights litigation and makes a powerful argument that defenders of the Supreme Court vastly overstate both its inclination and its ability to protect the rights of politically weak racial minorities. (6) From Jim Crow to Civil Rights is the definitive study of the Supreme Court's role in the civil rights struggles of the twentieth century. It is also a major contribution to the broader debate over the efficacy of judicial power as a tool for protecting oppressed minority groups.

Reviews of From Jim Crow to Civil Rights have focused primarily on Klarman's discussion of Brown. (7) Like other revisionist writings, (8) Klarman's initial works on race and the Supreme Court principally focused on the limitations of Brown and its immediate progeny as vehicles for desegregating schools. (9) But while Klarman's book provides a detailed and thought-provoking history of Brown and its impact, most of it is devoted to events and cases that predated Brown and had no direct connection to school desegregation. This Review focuses primarily on this broader history (especially with regard to the Progressive Era), in part to redress the unbalanced treatment of Klarman's book found in most other reviews and in part because of the expertise of the authors, but mostly because Brown has peculiar features that make it an unfair exemplar of Supreme Court jurisprudence regarding minority rights. In particular, it seems inappropriate to judge the efficacy of judicial review by the one Supreme Court opinion of the twentieth century to attract massive resistance from an entire region of the United States.

This Review provides a balanced appreciation of Klarman's impressively multifaceted analysis. Without losing sight of the many important insights and historical details that Klarman provides, the Review focuses on some of the weaknesses in his argument. While Klarman is right to reject the view that courts could, by themselves, eliminate Jim Crow and other forms of oppression, he underestimates both the willingness and the ability of courts to make a difference. Klarman properly emphasizes the limits of law as a tool for protecting oppressed minorities, and his work, like that of other revisionists, serves as a useful corrective to that of formerly dominant judicial triumphalists who have overstated the power of litigation as a tool for social change. Yet Klarman, while more modest in his conclusions than some of his revisionist predecessors, at times underestimates the importance of Supreme Court decisions and of law more generally. An accurate understanding of the role of the Supreme Court in aiding or preventing the oppression of minorities--which is important both to understand our past and to escape future errors--requires avoiding both undue hagiography and undue skepticism.

Part I of this Review summarizes Klarman's analysis of the development of Supreme Court civil rights jurisprudence in the Jim Crow era. Although Klarman covers a wide range of cases and issues, there is a common theme of skepticism about the importance of the Supreme Court's jurisprudence both in contributing to and reducing the oppression of African Americans. (10)

Judges' ability to affect the condition of African Americans was, Klarman argues, severely limited by two major constraints. First, judges "rarely hold views that deviate far from dominant public opinion." (11) They are therefore "unlikely to have the inclination ... to defend minority rights from majoritarian invasion." (12) Second, even in the rare cases where judges are inclined to protect oppressed minorities, they generally will be unable to do so because deeply rooted oppression, such as that of African Americans in the Jim Crow era, is based less on law than on social practices and violence. In Klarman's view,

Most Jim Crow laws merely described white supremacy; they did not produce it. Legal disfranchisement measures and de jure railroad segregation played relatively minor roles in disfranchising and segregating southern blacks. Entrenched social mores, reinforced by economic power and the threat and reality of physical violence, were primarily responsible for bolstering the South's racial hierarchy. Legal instantiation of these norms was often more symbolic than functional. Thus, more favorable Court rulings, even if enforceable, would not have appreciably alleviated the oppression of southern blacks. (13) This two-pronged attack on the importance of judicial power pervades Klarman's analysis of a wide range of issues, though he is careful to note that some decisions had an impact at the margin. (14) Klarman, like Gerald Rosenberg, (15) attributes the eventual improvement in the legal, social, and political position of African Americans after World War II primarily to broad social forces rather than to changes in the law. (16)

Part II provides a theoretical framework outlining important qualifications to Klarman's view that judicial power had little impact on Jim Crow because the judiciary was usually both unwilling and unable to have a major effect. Economists and political scientists have devoted only limited attention to understanding the mechanisms and effects of public-sector discrimination, (17) but more general economic literature suggests that attempts by Southern whites to establish inflexible and unyielding discriminatory norms necessarily ran into problems. Particularly important was the problem of collective action. (18) Jim Crow laws that sanctioned white defectors were often necessary to prevent collective action problems from unraveling the system of white supremacy. (19) These laws also helped to establish and maintain white supremacy through cost externalization. As we shall see, many Jim Crow laws fulfilled the function of externalizing costs from individual whites and white-owned businesses onto society as a whole, including both African-American and white taxpayers. (20) These laws also often served the purpose of cost minimization--ensuring that white supremacy was enforced at the lowest possible cost to white society. In these situations, judicial decisions invalidating Jim Crow laws could and often did have a substantial impact.

Part II argues that Klarman's otherwise commendable focus on broader social forces as the main cause of the eventual collapse of Jim Crow ignores ways in which those broader developments were in part dependent on a favorable legal environment. Part II also suggests that Klarman underestimates the degree to which judges are sometimes willing and able to reach decisions that run counter to...