The Supreme Court Legalizes Racist Discrimination

Homer Plessy, immortalized by the Supreme Court decision his actions led to.

(National Archives)

On June 7, 1892, 115 years ago today, Homer Adolph Plessy sat down in a first-class car on the East Louisiana Railroad in New Orleans. When the 29-year-old shoemaker presented his ticket to the conductor, he said, “I have to tell you that, according to Louisiana law, I am a colored man.” The surprised conductor did his duty and told the well-dressed, well-spoken, light-skinned gentleman to remove himself to the “colored car,” the sooty accommodation just behind the engine whose wooden benches were reserved for Negroes, drunks, and derelicts. When Plessy refused to budge, he set in motion a legal case that would reach the U.S. Supreme Court and reverberate for decades.

Plessy and his backers were out to challenge the increasingly harsh pattern of racial segregation that had been spreading through the Southern states since the end of Reconstruction in 1877. Their plan backfired, and it ushered in more than 60 more years of legalized racial discrimination.

The police arrested Plessy under an 1890 Louisiana law segregating railroad cars by race. He spent a night in jail, and a month later he pleaded before Judge John H. Ferguson that the law, which called for “separate but equal” accommodations for blacks and whites, was unconstitutional under the Thirteenth and Fourteenth Amendments to the U.S. Constitution. Those post–Civil War provisions had respectively outlawed slavery and granted full citizenship rights to all persons born or naturalized in the United States, regardless of race. Though Ferguson was a Massachusetts native and treated Plessy’s lawyers respectfully, he ruled against the defendant, seven of whose great-grandparents were white and one black, making him an octoroon, in the parlance of the time.

The New Orleans newspapers welcomed the verdict. The Picayune wrote of Plessy’s supporters, “The sooner they drop their so-called ‘crusade’ against ‘the Jim Crow car,’ and stop wasting their money in combating too well-established a principle—the right to separate the races in cars and elsewhere—the better for them.”

The Louisiana Supreme Court concurred with Ferguson’s judgment, and the stage was set for a petition to the U.S. Supreme Court arguing that the law under which Plessy had been prosecuted was unconstitutional. The Citizens’ Committee to Test the Constitutionality of the Separate Car Law hired Albion W. Tourgée and Samuel F. Phillips to argue the case before the nation’s highest court.

The lawyers knew they faced an uphill struggle. The eight-man court (one justice was out of the country) was packed with pro-business justices, and in 1883 the court had invalidated the Civil Rights Act of 1875, which forbade discrimination in public accommodations. The justices had interpreted the Fourteenth Amendment not as the shield that Congress had intended to protect the rights of freed slaves but largely as a means of limiting the ability of states to regulate business enterprises.

When Plessy v. Ferguson was argued, in 1896, Plessy’s lawyers attacked the separate-car law on a number of fronts. First, it was vague, its reference to “persons of the colored race” poorly defined. As such it gave unwarranted legal power to train conductors. Further, they said, it violated the Fourteenth Amendment by abridging Plessy’s “privileges and immunities” as a citizen. It was “along the line of the late institution of slavery” and thus violated the Thirteenth Amendment. It represented a “badge of servitude” that “perpetuates the distinction of race and caste.” They didn’t raise the obviously inferior conditions in the “Jim Crow car,” knowing that the state was ready to argue that “equal accommodations do not mean identity of accommodations.”

Seven of the eight justices sided with Louisiana. The decision, written by Justice Henry Billings Brown, stated that the law was a “reasonable regulation,” based on “established usages, customs, and traditions of the people.” Such a law did not stamp blacks with “a badge of inferiority,” or if it did, it was “solely because the colored race chooses to put that construction upon it.” Supporting his opinion, Brown cited the widespread segregation of black and white children in education, specifically in the District of Columbia, where Congress itself had mandated separate schools. “If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane,” the court ruled. With those words the justices condemned generations of African-Americans to the injustice of Jim Crow.

Only one voice sounded in dissent. Justice John Marshall Harlan, a former slave owner who had become a champion of black civil rights, wrote that “there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind.” The decision, he wrote prophetically, “will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case,” the 1857 decision that had stripped blacks of their civil rights and opened the territories to slavery. It would “stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens.”

The Plessy decision indeed accelerated discrimination across the South. States enacted laws requiring racial separation in trains, parks, schools, libraries, theaters, hotels, restaurants, hospitals, and cemeteries. Blacks were forbidden to use white drinking fountains or toilets. Mississippi mandated separate phone booths. The ruling was, a Northern newspaper lamented, a “concession to one of the lowest and meanest prejudices to which the human mind is liable.”

And it endured. Not until 1954, in Brown v. Board of Education of Topeka, did the Supreme Court overturn Plessy and toss out the notion of “separate but equal” (those words were not contained in the Plessy decision, but they became a catchphrase for the kind of discrimination it institutionalized).

Homer Plessy ultimately paid his $25 fine and faded into obscurity. His principled stand, like that of Rosa Parks 63 years later, had forced the nation to declare its own principles, and so “pernicious” were the effects that decades later Plessy came to be viewed as a shameful affirmation of race hatred. William H. Rehnquist, who as a law clerk in 1952 wrote that “Plessy v. Ferguson was right and should be reaffirmed,” saw fit to eat his words at his confirmation hearings when he was appointed to the Supreme Court, in 1971, and again when he was elevated to be chief justice, in 1986. In the light of history, it can hardly have been a savory dish.

—Jack Kelly writes often for American Heritage magazine and is the author of Gunpowder: Alchemy, Bombards, and Pyrotechnics—A History of the Explosive That Changed the World (Basic Books).