On this day in 1892, Homer Plessy refused to relinquish his seat in a “whites only” train car. This led to Plessy v Ferguson — one of the most infamous Supreme Court cases ever that enshrined “separate but equal” in law for the next 58 years. It used to annoy me that Sarah Palin couldn’t even name this one case when asked to name a Supreme Court case she disagreed with other than Roe v Wade. It is a case I first learned of in high school. But I later realized that Palin probably doesn’t disagree with Plessy v Ferguson — except in the sense that it is a case that is now universally vilified. The reasoning in the case is fully consistent with modern conservative thinking.
In my previous educational encounters with this case, I never read about the specifics of it. And they are quite interesting. To start with, this was not a case of a man just happening to be in the “wrong” place and causing a ruckus. Rather it was just like it would later be with Rosa Parks. The African American civil rights group Comité des Citoyens (French: Citizens Committee) was looking for a way to challenge the recently passed Louisiana Separate Car Act, which mandated separate but equal train cars. So the Comité chose Homer Plessy.
One of the reasons that Plessy was chosen was that he was 7/8ths white — an “octoroon.” So he could “pass.” This allowed him to purchase a ticket on a “whites only” train car. When the conductor came by, Plessy told him that he was 7/8ths white that that he refused to move to the “blacks only” train car. And the rest, as they say, is literally history. According to Wikipedia, “Everything that the committee had organized occurred as planned, except for the decision of the Supreme Court in 1896.” Of course, the Comité knew it was likely to lose.
The problem was the Supreme Court as an institution is dedicated to preserving the power of the powerful. For people of my age, that sounds wrong. We saw a lot of good work by the Court over the last 60 years. But really, that was the exception. What the Court is now is more in keeping with what it has traditionally been. Even if the court were filled with Elena Kagans, it would hardly be liberal; it would be more for the status quote. As it was, the Supreme Court found against Plessy by a vote of 7-1. In Ian Millhiser’s list of The Five Worst Supreme Court Justices In American History, two of them found with the majority on Plessy v Ferguson: Stephen J Field (#1) and Melville Fuller (#4).
The lone dissenter was John Marshall Harlan who said — correctly — that Plessy v Ferguson would be remembered as infamously as Dred Scott v Sandford. But lest you think that we should consider Plessy v Ferguson as typical of the time, remember that Harlan’s argument (apart from his own ethnocentrism) is remarkably modern:
What’s sad is that three current justices certainly, four probably, and five possibly would find against Plessy if this kind of explicit segregation were still an issue. That’s what’s so dangerous about this court. The conservatives are loons, but they are extremely smart and creative loons.
We mark this day when the African American community organized to protect their civil rights, but lost — to our nation’s great shame.