The South Counterattacks: the Anti-Naacp Laws

Published date01 June 1959
Date01 June 1959
Subject MatterArticles
Princeton University
YEARS the group basis of judicial activity has become more
~ evident. Whether this has been due to heavier group pressures or whether
there has simply been sharper recognition of what has always been going
on, is difficult to determine. Perhaps the current situation is partially the
result of both factors. Certainly the dispute over national economic policy
during the depression years, when the foes of the New Deal took their lost
political cause to the judges, focused attention on judicial pressure groups.
Organized labor profited by this example; and in the decade after 1937, when
the liberalism of the Roosevelt coalition was in legislative eclipse, unions
found their staunchest support in the marble palace across the street from
the capitol building. As a concomitant of this economic battle public aware-
ness of the immense policy potential of new judicial appointments increased,
although aside from the famous Court packing plan of 1937 it is problemati-
cal whether partisan activity grew in the same proportion.
There are a number of court weapons ready at hand for interest groups.
The most obvious is to persuade an individual or a company to violate a
law and force the government to bring a test prosecution. The amicus curiae
brief2 is more oblique as well as less risky, though it normally depends on
somebody else’s starting the legal action. Where a plaintiff can be found a
&dquo;class action&dquo; 3 for a declaratory judgment and/or an injunction can be
begun, that is, a suit initiated by one person or a small group of persons on
behalf of a large number of people &dquo;similarly situated.&dquo;
There has been a growing body of literature on group judicial activity. Much of the theo-
retical framework was laid down by A. F. Bentley in The Process of Government: A
Study of Social Pressures (Chicago: University of Chicago Press, 1908). David Truman
has continued Bentley’s theme in The Governmental Process: Political Interests and
Public Opinion (New York: Knopf, 1955). More specifically devoted to the judicial
process are: Jack Peltason, Federal Courts in the Political Process (New York: Double-
day, 1955); Victor G. Rosenblum, Law as a Political Instrument (New York: Double-
day, 1955); note "Private Attorneys-General: Group Action in the Fight for Civil Liber-
ties," 58 Yale L. J. 574 (1949); Fowler Harper and Edwin D. Etherington, "Lobbyists
Before the Court," 101 U. of Pa. L. Rev. 1172 (1953). Professor Clement Vose has been
doing a great deal of pioneering empirical research in this field. See his "NAACP
Strategy in the Restrictive Covenant Cases," 6 West. Res. L. Rev. 101 (1955); "The
National Consumers League and the Brandeis Brief," 1 Midw. J. of Pol. Sci. 267 (1957);
and Caucasians Only: The Supreme Court, The NAACP, and The Restrictive Cove-
nant Cases (Berkeley: University of California Press, 1959).
Consult Harper and Etherington, loc. cit., and Peter H. Sonnenfeld, "Participation by
Amici Curiæ by Filing Briefs and Presenting Oral Argument in Decisions of the Su-
preme Court, 1949-1957," in Glendon Schubert, Jr. (ed.), Michigan State University
Governmental Research Bureau Working Papers in Research Methodology,
For the best summary, read "Class Actions: A Study of Group-Interest Litigation," 1 Race
Rel. L. Rep. 991 (1956).

And economic interest, of course, has not been the only occasion for the
use of these devices in social conflict. Ideological and ethnic groups can also
fight their battles in courtrooms. In World War II, the Japanese American
Citizens League, beaten in the administrative and legislative processes, took
its case against West Coast evacuation to the judiciary but fared little better.4
During the same general time-period, the Jehovah’s Witnesses, assisted by
the American Civil Liberties Union, recouped their losses at the local politi-
cal level by means of sustained court action.5
As important as was the legal activity of these groups, that of the Negro
outstripped them all. Outside of the South the Negro has usually lacked the
numbers to make his political voice both intelligible and authoritative. And
in the South his numerical strength has been continually nullified by ingeni-
ous, ingenuous, and usually illegal voting restrictions, as well as by his own
political apathy. In the last decade-and-a-half, mass migrations have to some
extent ended the Northern numerical deficit; still, due in large part to in-
voluntary inexperience, the Negro has not produced political leadership of a
sufficiently astute character to allow him a full place in the American social
But many of the very factors which kept the Negro politically powerless
could be turned to his advantage in the courts. Lack of social standing,
minority status, and claims of discrimination by public officials are often
valuable assets in a judicial system which operates under a constitutional
command of equal protection of the law and which has adopted a blind-
folded goddess of justice as its symbol. In addition, the Negro’s leadership
problems in this area were much less acute. While the colored man was a
relative stranger to city hall or legislative lobby, there were literally dozens of
capable Negro lawyers very much at home in the law library or courtroom.
In the late 1930’s the National Association for the Advancement of
Colored People, which along with the National Urban League had been
gradually assuming direction of organized Negro efforts for social equality,
reorganized itself into two separate branches, the NAACP and the Legal
Defense and Education Fund, with the latter assigned the mission of exploit-
ing court opportunities. Under the direction of Thurgood (christened
Thoroughgood) Marshall, the Legal Fund transformed litigation into a co-
ordinated court campaign.6

Hirabayashi v. United States, 320 U.S. 81 (1943); Korematsu v. United States, 323 U.S. 214
(1944); Ex Parte Endo, 323 U.S. 283 (1944). Morton Grodzins has a superb account of
the activity of various pressure groups in formulating the evacuation policy: Americans
Betrayed: Politics and the Japanese Evacuation (Chicago: University of Chicago Press,
Their most important victory was probably that in the second Flag Salute case, West Vir-
ginia v. Barnette, 319 U.S. 624 (1943). For other cases see the discussion in C. Herman
Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values, 1937-1947
(New York: Macmillan, 1948), pp. 93-101.
This is not to imply that prior to the division of labor NAACP court activity had been

While the NAACP’s more conventional pressuring of the Executive and
Congress brought only a few concrete gains, the shrewd tactics of Marshall
and his staff yielded phenomenal success. Some of the more sophisticated
voting7 and jury8 restrictions together with racially restrictive real estate cove-
nants were struck down,9 and the second half of the &dquo;separate but equal&dquo;
formula was enforced to a far greater extent than ever before Finally,
legally sanctioned segregation itself fell before this attack, first in the public
schools,11 later in public recreational facilities,l2 and then in public trans-
portation. 13
Although each of these decisions had national implications, it was the
white South which felt their effect both initially and substantially. The
South was willing to make equality of separate public facilities as much a
reality as money, without mixing, could accomplish. But Southern leaders
were not prepared to ask their people to accept desegregation in education,
and four years after the historic School Segregation Cases the Supreme
Court’s writ had yet to run in a single Deep Southern state except North
Carolina. The segregationists utilized the political weapons to which they
had access: the state legislative and executive branches, and even occasion-
ally the state judiciary. Not only had those who claimed to speak for the
white South defiantly protected the existing social system by defensive belts
of new racial legislation,l4 but they had also turned the power of their states
against their antagonist, the NAACP, and had launched a massive counter-
attack against the Negro organization.
fruitless. On the contrary, some of the most important decisions had been won in the
earlier period: Buchanan v. Warley, 245 U.S. 60 (1917); Powell v. Alabama, 287 U.S. 45
(1932); Norris v. Alabama, 294 U.S. 587 (1935); Nixon v. Herndon, 273 U.S. 536
(1927); Nixon v. Condon, 286 U.S. 73 (1932).

Lane v. Wilson, 307 U.S. 268 (1939); Smith v. Allwright, 321 U.S. 649 (1944); Terry v.
Adams, 345 U.S. 461 (1953).

Norris v. Alabama, supra note 6; Hale v. Kentucky, 303 U.S. 613 (1938); Smith v. Texas,
311 U.S. 128 (1940); Hill v. Texas, 316 U.S. 400 (1942); Patton v. Mississippi, 332 U.S.
463 (1947); Cassell v. Texas, 339 U.S. 282 (1950); Avery v. Georgia, 345 U.S. 559
(1953); But cf. Akins v. Texas, 325 U.S. 398 (1945); Brown v. Allen, 344 U.S. 443
(1953); Williams v. Georgia, 349 U.S. 375 (1955).

Shelley v. Kraemer, 334 U.S. 1 (1948); Hurd v. Hodge, 334 U.S. 24 (1948); Barrows v.
Jackson, 346 U.S. 249 (1953).
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); Mitchell v. United States, 313 U.S.
80 (1941); Sipuel v. Board, 332 U.S. 631 (1948); Fisher v. Hurst, 333 U.S. 147 (1948).
The progress in judicial enforcement of employment rights should also be noted: Steele
v. Louisville &

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