Reconsidering Palmer v Thompson
2019; University of Chicago Press; Volume: 2018; Linguagem: Inglês
10.1086/702285
ISSN2158-2459
Autores Tópico(s)American Constitutional Law and Politics
ResumoPrevious articleNext article FreeReconsidering Palmer v ThompsonRandall KennedyRandall Kennedy Search for more articles by this author Randall Kennedy is the Michael R. Klein Professor at Harvard Law School.PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreIn Palmer v Thompson1 the Supreme Court upheld the constitutionality of a decision by the city of Jackson, Mississippi, to close all public swimming pools. The city maintained that it would be unable to operate racially desegregated pools safely at acceptable expense after a judgment declaring segregated recreational facilities to be unconstitutional.2 Palmer is a judicial injustice. In Palmer, as in more notorious delinquencies such as Plessy v Ferguson3 and Korematsu v United States,4 the Supreme Court and tribunals below showed themselves to be unreliable sentinels when it came to recognizing racist abuses of power. The Court later expressly repudiated Plessy5 and Korematsu.6 It has also jettisoned parts of Palmer’s rationale.7 But the Court has never rejected Palmer’s holding, which remains “good law,” potentially influencing what counts as valid governmental action.8The Palmer Supreme Court affirmed the Fifth Circuit en banc which affirmed a Fifth Circuit panel which affirmed a district court—litigations that stretched across eight long, eventful years from 1963 to 1971. These court rulings reveal much about the racial facts of life in the deep South and the nation during the Second Reconstruction. They discredit courts that have been widely lauded for vindicating the rights of civil rights dissidents, for an effort to uproot segregation in disguise was stymied decisively with assistance from the federal judiciary. The Palmer rulings were not only erroneous but profoundly misguided in ways that should prompt negative reassessments of those responsible, including such esteemed figures as Judge Richard Taylor Rives and Justice Hugo L. Black.Palmer involved the public swimming pool, a facility that aroused particularly ferocious resistance to desegregation. Insistence that there be no desegregation at the pool amounted to a public declaration that, in the eyes of officials, it would be degrading to whites to have to share a bathing and swimming facility with blacks. In addition to that stigmatic harm, discrimination at the pool prompted some youngsters to frequent unsupervised locales at which they faced higher risks of danger, leading to tragic injuries or even death.9I. Challenging, Defending, and Denying Racial Discrimination in Jackson, MississippiHazel Palmer worked as a maid and became an equal rights dissident out of solidarity with her son who was jailed on account of his activities as a Freedom Rider.10 Palmer and fellow petitioners claimed that Jackson authorities violated the Equal Protection Clause of the Fourteenth Amendment by closing all of the city’s swimming pools in 1963.11 Prior to the closure, the city operated five pools—four reserved for whites and one reserved for blacks.12 Racial segregation at the municipal pools was a fragment of a larger structure of racial hierarchy characterized by whites’ monopolization of authority and deployment of power to subordinate people of color, especially blacks.13 In 1961, as part of a multipronged revolt, black plaintiffs challenged racial segregation at Jackson’s recreational facilities.14 They won a declaratory judgment from Judge Sidney Mize, even as he announced that, in his view, no genuine problem existed.According to Judge Mize, Jackson was a “clean, progressive city … noted for its low crime rate and lack of racial friction except for the period in 1961 when the self-styled Freedom Riders made their visits.”15 Offering his explanation for the striking racial separation that constituted a conspicuous feature of the Jackson social landscape, Judge Mize maintained that[a]s the city rebuilt from the ashes of the Civil War, its white citizens occupied one area, and its colored citizens chose to live together in another. … [M]embers of each race have customarily used the recreational facilities located in close proximity to their homes. The defendants believe that the welfare of both races will best be served if this custom is continued.16Averring that the defendants “do not claim the right to require or enforce separation of the races in any public facility,” Judge Mize also deemed it a “fact” that “voluntary separation of the races … has operated smoothly and apparently to the complete satisfaction of all concerned for many years.”17 Judge Mize recognized that, prior to the lawsuit, there had been some manifestation of dissatisfaction with racial custom in Jackson. He noted the arrest of “two colored girls” detained after refusing a police officer’s order to leave a “white” library and the arrest of “a colored boy and girl” in a “white” park.18 But Judge Mize was unwilling to see the dissidents’ actions as bona fide efforts to use public facilities in accordance with federal constitutional standards. Rather he saw them as “deliberate attempt[s] to create racial friction”—“isolated publicity stunts” that did not “represent the will or desire of the … Negro citizens of Jackson.”19 Lauding the city officials as “outstanding, high class gentlemen,” Judge Mize rejected the plaintiffs’ request for injunctive relief, maintaining that the defendants “know now what the law is and what their obligations are.”20In May 1962, nine days after Judge Mize’s declaratory judgment, the Jackson Daily News quoted Mayor Allen C. Thompson as announcing: “We will do all right this year at the swimming pools … but if these agitators keep up their pressure, we would have five colored swimming pools because we are not going to have any intermingling.”21 The Daily News also reported Mayor Thompson as saying that the city had authority to sell the pools or to close them if they could not be sold. A year later, noting that the city’s recreational facilities remained segregated, the Daily News reported Mayor Thompson declaring that “neither agitators nor President Kennedy will change the determination of Jackson to retain segregation.”22After the Fifth Circuit Court of Appeals affirmed Judge Mize’s declaratory judgment, bringing the Clark litigation to an end, Jackson stopped enforcing racial segregation in its auditoriums, zoos, golf courses, and most aspects of its other recreational facilities. Jackson, however, decided to close or divest itself of all municipal swimming pools.23After petitioning to have the pools reopened, albeit on a desegregated basis, Palmer and other black residents filed a new lawsuit. Justifying the city’s decision to close its pools, Mayor Thompson declared that desegregated pools could not be operated safely at acceptable expense.24 United States District Court Judge William Harold Cox credited the city’s explanation and dismissed the suit.25 A panel of the Fifth Circuit Court of Appeals affirmed unanimously in an opinion written by Judge Richard Taylor Rives.26 The Fifth Circuit, en banc, affirmed the panel by a seven-to-six vote, with Judge Rives writing for the majority and Judge John Minor Wisdom writing the dissent.27Judge Rives concluded, echoing Judge Cox, that Jackson closed the pools for legitimate reasons of expense and safety. The city, he wrote, “was making the transition in the operation of its recreational facilities from a segregated to an integrated basis” and “had considerable discretion as to how that transition could best be accomplished.”28 The municipality’s latitude was even broader, Judge Rives asserted, in that the case involved an unessential public facility.29 Noting that swimming pools need not be provided at all, Judge Rives stated that the city “meets the test of the equal protection clause when it decides not to offer that type of recreational facility to any of its citizens on the ground that to do so would result in an unsafe and uneconomical operation.”30 He believed that the “[m]otive behind a municipal or legislative action may be examined where the action potentially interferes with … constitutionally protected rights.”31 He concluded, however, that upon examination the city’s motive was legitimate. The plaintiffs charged that the motive was to avoid desegregated swimming by virtually any means possible, even if that meant closing public swimming pools for everyone. By contrast, Judge Rives and the Fifth Circuit majority believed that the city’s motive was a legitimate one of ensuring “the preservation of order and maintenance of economy.”32Judge Rives also emphasized that city authorities closed the pools to everyone, whites and blacks alike. It would be unacceptable, Judge Rives stated, for the city to act in a way that affixed a badge implying racial inequality. He insisted, however, that that is not what had transpired since all residents were equally deprived of access to municipal pools.Judge Wisdom’s dissent argued that the city’s purpose in closing the pools was to avoid desegregation and that the justifications offered by the city—safety and economy—were merely pretextual. “It is astonishing,” Judge Wisdom chided, that the Fifth Circuit accepted “at face value the two excuses the city of Jackson offered.”33 He also repudiated the notion that closing the pools to everyone, blacks and whites alike, obviated the possibility that that act could be a stigmatizing attack against blacks. Just as criminalizing marriage across the race line—a burden on whites and blacks alike—was a reflection and technique of racial subordination, so, too, was preventing desegregated swimming a reflection and technique of racial subordination, especially insofar as the pool closures were imposed in reaction to a court order that affirmed the illegitimacy of segregation.34 Finally, Judge Wisdom asserted that the city’s closure of the pools was retaliatory:It has taught Jackson’s Negroes a lesson: In Jackson the price of protest is high. Negroes there now know that they risk losing even segregated public facilities if they dare to protest segregation. Negroes will now think twice before protesting segregated … facilities. They must first decide whether they wish to risk living without the facility altogether, and at the same time engendering further animosity from a white community which has [also] lost its public facilities. …35The Supreme Court affirmed the Fifth Circuit, five to four, with Justice Black writing for the Court and Justice White writing the main dissent. Justice Black reasoned that while there was some evidence in the record that the Jackson pools were closed due to opposition to racial desegregation, the courts below had concluded that the pools were closed because city officials believed that, as desegregated facilities, they could not be operated safely and economically and that there was “substantial evidence in the record” to support that conclusion.36 Under the theory pursuant to which he resolved the case, however, the judicial finding regarding motive became irrelevant. “[N]o case in this Court,” Justice Black declared, “has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it.”37 Acknowledging that “there is language in some of [the Court’s] cases … which may suggest that the motive or purpose behind a law is relevant to its constitutionality,” he maintained that “the focus in those cases was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did.”38 Here, Justice Black concluded, the “actual effect” of the closure was unobjectionable under the Equal Protection Clause. The record, he declared, “shows no state action affecting blacks differently from whites.”39By contrast, Justice White argued that “shutting down the pools was … a most effective expression of official policy that Negroes and whites must not be permitted to mingle together when using the services provided by the city.”40 Stating that he was “quite unpersuaded that … it is impermissible to impeach the otherwise valid act of closing municipal swimming pools by resort to evidence of invidious purpose or motive,”41 Justice White contended that “by closing the pools solely because of the order to desegregate, the city [was] expressing its official view that Negroes are so inferior that they are unfit to share with whites this particular type of public facility.”42 According to Justice White, Jackson’s “closed pools stand as mute reminders to the community of the official view of Negro inferiority.”43II. The Special Place of Swimming PoolsOne thing that none of the Palmer opinions adequately highlight is the special place of the swimming pool in the history of racial conflict in America. More intense opposition to desegregation was focused upon pools than any other site of recreation. Resistance stemmed from various sources. One was whites’ fear that they would be contaminated if they swam in the same water as blacks. This apprehension was revealed in an episode in the 1930s that involved Robert Lee Carter, a public high school student in East Orange, New Jersey, who became one of the leading civil rights attorneys in American history. Authorities at Carter’s school reserved the swimming pool for white students only Mondays through Thursdays. Black students were only permitted to use the pool on Fridays. “To protect the white children from contamination the blacks might have left in the pool,” Carter writes, “it was then drained, cleaned and refilled for the use of white students the following Monday.”44 Displaying the resolve that characterized his legal career, Carter solitarily challenged the segregationist routine. “I could not swim at the time,” he recalled, “but at every gym class, choked up and near tears with emotion and defiance, I would get in the pool at its shallow end and cling to the side until the period ended.”45Racial discrimination at the swimming pool played a formative role in the life of another leading attorney, the formidable William T. Coleman. When Coleman insisted that he be allowed to try out for his public high school swimming team in Philadelphia, authorities disbanded it to avoid the possibility that it might become multiracial.46Resistance to desegregation at pools was also attributable to sex. People disrobe at swimming pools and gaze at others who are similarly bare. At pools, more than any other public setting, the erotic rises close to the surface.47 White racists nationally viewed the lowering of racial barriers at pools with particular contempt.48 In northern and midwestern cities in the 1940s and 1950s, racists opposed the presence of blacks at pools with fists, bats, rocks, knives, and guns.49 In border states, resistance was also fierce. When a judge in 1948 in Montgomery, West Virginia, ordered authorities to provide blacks with a pool equal to that offered to whites, officials responded by leveling down: they closed the pool for fourteen years.50 In 1954 in Maryland, officials refused to desegregate bath houses, bathing facilities, and swimming pools, notwithstanding the Supreme Court’s recent holding in Brown v Board of Education. Noting that Brown did not expressly condemn segregation across the board,51 a federal district court judge suggested that segregating the races in certain forms of recreation continued to be reasonable. He observed that “[t]he degree of racial feeling or prejudice … is probably higher with respect to bathing, swimming, and dancing than with any other interpersonal relations except direct sexual relations.”52 Although reversed on the law, the judge’s opinion accurately reflected the vexed racial emotions that attended the prospect of interracial contact at public swimming pools. The volatile history of swimming pool desegregation makes more plausible the belief that the Jackson city authorities could have been honestly prompted by concerns over safety and fiscal responsibility (and not their own segregationist commitments) when they closed the pools. On the other hand, the dense record of obstructionism lends weight to the plaintiffs’ contention that while segregationist authorities were willing to cede some venues to desegregation, the sexual aura surrounding swimming and sunbathing prompted them to act differently—more stubbornly and deceitfully—with respect to pools.III. The Problem of Racially Biased Judicial RecalcitranceThe Palmer dissents offer a glimpse of the pervasive racism that enveloped Jackson in the 1960s. Justice White cited several cases substantiating his observation that “[t]he city of Jackson was one of the many places where the consistent line of decisions following from Brown had little or no effect.”53 Those cases reveal the actions of state and municipal authorities who continued to enforce segregation long after it had been judicially proscribed. Bailey v Patterson54 featured equal rights dissidents who, challenging blatantly illegal racial segregation in transportation facilities, also complained of wholesale violations of their civil liberties by Jackson police. The case also featured Mayor Thompson, who showed himself to be a shrewd defender of the Jim Crow regime. Asked in Bailey to explain the racial policy of Jackson with respect to transportation, Mayor Thompson responded:It has been the policy of mine as chief law enforcement officer … to maintain what has worked over the last hundred years to bring happiness and peace and prosperity to everyone within our city. That has been done by a separation of the races, not segregation. We never refer to it as segregation. … Our policy calls for a great deal of give and take. It is agreeable to both the white and the colored.55Notwithstanding the image of reciprocity and consensus portrayed by Mayor Thompson, the cases Justice White cited disclosed a steady flow of unlawful conduct undertaken by authorities who repeatedly proceeded as if it were criminal for people to ignore segregationist custom. These cases reveal numerous instances in which authorities trampled rights, exposing in sobering detail why the anodyne depictions offered by the majority decisions in Palmer obscure the perfidy of the pertinent state and city authorities.56The situation in Jackson, however, was even worse than portrayed by the Palmer dissenters, who left unmentioned the deformed structure of authority that the plaintiffs confronted,57 including the judiciary.58 After the overthrow of Reconstruction in Mississippi and throughout the South, white supremacists succeeded in negating black electoral power through a wide variety of means, including chicanery, fraud, discrimination, intimidation, and violence.59 The result was Jim Crow tyranny reflected in agencies of governance from which blacks were barred. Although blacks constituted nearly half of the electorate in Mississippi during the first half of the twentieth century, there existed a complete absence of black representation in the state legislature until 1967, when Robert G. Clark became the first African American Mississippi legislator since the 1890s.60 Although blacks constituted a bit more than a third of the population of Jackson in the early 1960s, there were no black elected officials in Jackson city government until 1985.61 No blacks were among the officials that decided to close the pools.Another consequence of Jim Crow tyranny was that anyone seeking to wield public authority in Mississippi was obliged to accommodate white supremacy. This grim reality allowed for some variety inasmuch as white racism occupied a spectrum conditioned by a wide array of factors including ideology, religion, and temperament. The distance between “moderate” segregationists and “extreme” segregationists could be considerable. One thing, however, was clear: an individual could not be recognized as an antiracist and nonetheless be elevated to a position of authority.62Judges Sidney Mize and William Harold Cox, the trial judges who adjudicated Clark v Thompson and Palmer v Thompson, were diehard segregationists who pose for the legal historian a problem similar to that encountered by the appellate judges that reviewed their rulings: to what extent, if any, are their factual findings trustworthy?63 Trial judges’ findings of fact are typically accorded substantial deference. With Mize and Cox, however, such deference would be misplaced in any case involving a challenge to segregation. Both displayed on numerous occasions animus against antiracist activists and a willingness to use their craft and office to defend the Jim Crow regime, even to the point of engaging in judicial nullification. A striking instance was presented in Meredith v Fair involving James Meredith’s successful (and heroic) effort to become the first recognized African American to attend the University of Mississippi.64 When Meredith’s application was rejected, the obvious cause was the determination of state officials to prevent any black student from enrolling. Governor Ross Barnett worked closely with other Mississippi officials to block Meredith. Barnett declared publicly and repeatedly that no black would enter Ole Miss or any other “white” school in the state so long as he held office. Overwhelming evidence presented at trial showed that state authorities were committed to barring Meredith on account of his race. Yet Judge Mize found as a “fact” that the University of Mississippi was not a segregated institution, that there was no custom or policy excluding qualified Negroes from the university, and, more specifically, that Meredith was not denied admission because of his race.65 Reversing the trial court, Judge John Minor Wisdom, writing for the Fifth Circuit, wryly observed that Judge Mize’s findings “may startle some people in Mississippi.”66 Because the university’s policy of racial exclusion was so evident, Judge Mize’s inaccurate account is difficult to chalk up to mere good faith error.67Similarly misguided and misleading was Judge Mize’s handling of recreational desegregation. Recall that in Clark,68 Judge Mize described Jackson as a “clean, progressive” city that had been free of racial friction except for that stirred up by intermeddling civil rights activists; maintained that “voluntary separation of the races … [had] operated smoothly and apparently to the complete satisfaction of all for many years”; declined to rule that the plaintiffs had been victims of discrimination; and refused to issue an injunction against the “high class” segregationist defendants.69 Given his solicitude for Jim Crow oppression, his inability to “find” obvious invidious racial discrimination, and his hostility to equal rights activists “guilty” of simply seeking their due under the federal constitution, it is sensible to approach every aspect of Judge Mize’s judicial performance in all race relations cases with alert skepticism.Judge Cox adjudicated Palmer at trial. Like Mize, he was a stalwart defender of white supremacist orthodoxy. Consider his rulings in NAACP v Thompson,70 a case in which activists sought an injunction to restrain Mayor Thompson and other officials from unlawfully harassing them for seeking to exercise their right to access to interstate transportation free of racial impediments. Unsurprisingly, in light of his prejudices, Judge Cox first found an insufficient factual predicate for temporary injunctive relief and then dismissed the complaint altogether. The Fifth Circuit reversed, highlighting Judge Cox’s unreliability as a fact finder.71 Convinced that Mayor Thompson and the other defendants would continue to menace the plaintiffs, the Fifth Circuit issued the injunctive relief that Judge Cox had refused to grant.72Here is the rub: the author of the Fifth Circuit’s repudiation of Judge Cox in Thompson was none other than Judge Rives, who was also the author of the Fifth Circuit’s rulings in Palmer that affirmed Judge Cox. A southern-bred, well-connected, widely respected jurist, Rives admitted that he had not always been “pure” with respect to bigotry.73 Early in his career as an attorney he carried on a brief flirtation with the Ku Klux Klan and later advised registrars on how to thwart blacks seeking to vote. His racial sentiments, however, evolved. Elevated to the Fifth Circuit in 1951 by President Harry S. Truman, Rives became one of “The Four”—the cadre of judges on the Fifth Circuit that most insistently enforced Brown v Board of Education.74 Rives, for example, wrote the opinion in Browder v Gayle75 that invalidated segregation on busses in Alabama, a ruling that brought victory to the Montgomery Bus Boycott that launched the career of Martin Luther King Jr.76 Rives was a less dogged racial liberal than were his colleagues John Minor Wisdom, Elbert P. Tuttle, or John R. Brown. Nonetheless, allied with them, Rives repeatedly acted to block Cox, Mize, and other segregationist judges from subverting the legal reforms of the Second Reconstruction.77Justice Hugo L. Black—a close jurisprudential ally and personal friend of Judge Rives—was the author of the Supreme Court’s opinion in Palmer. An Alabamian like Rives, Black had briefly been a member of the Ku Klux Klan. After his elevation to the Supreme Court in 1937, however, he spent the next thirty years repeatedly siding with racial minority litigants seeking judicial validation of their federal constitutional rights. He regrettably joined in the Court’s deplorable failure to defend the rights of Japanese Americans forced to submit to curfews and detentions during World War II. Indeed, he wrote Korematsu v United States, the Court’s key decision in that horrific episode. Black also became the leading critic of the direct-action tactics of black liberation activists, a role that probably made him less sympathetic to the underlying complaints of the dissidents. By the waning days of his judicial career—the period during which he wrote Palmer—Black had become a somewhat crabby, thin-skinned, intellectually arthritic jurist who was no longer habitually friendly to progressive reformers seeking to challenge social inequities. Still, for all that, Justice Black was a far cry from—indeed a foe of—segregationists such as Judges Mize and Cox.78The presence of Rives and Black in the Palmer majorities complicates the story of the litigation. Racist judicial obstructionism cannot account fully for the outcome. Nor can the remaining responsibility for the outcome be fully attributed to “moderate” jurists of various stripes whose commitment to the enforcement of Brown and its progeny was unenthusiastic if not halting. Essential to the majorities at both the court of appeals and the Supreme Court were two of the leading federal judicial racial liberals of the era.79IV. Palmer and the Ghost of PlessyThe Supreme Court took the position that, whatever the motivation behind the pool closure, Jackson authorities did not cause a harm cognizable under the Equal Protection Clause because the city treated everyone the same. But the city did not treat everyone the same. It did not racially stigmatize whites but did racially stigmatize blacks. The historical record discloses no protest from whites claiming that the city treated them as a disfavored caste by closing the pools rather than permitting them to share the pools with blacks. Some whites may well have complained about inconvenience to themselves or injustice inflicted upon their black fellow residents. But no appreciable number of whites asserted, as did substantial numbers of blacks, that the closure constituted a racial insult aimed at them. In closing the pools city authorities were seeking to protect whites from the imagined danger and indignity of sharing intimate environs with blacks.The thinking that triumphed in Palmer is disturbingly similar to that which triumphed in Plessy v Ferguson.80 In Plessy the Court upheld the constitutionality of a Louisiana law that required racially separate-but-equal accommodations on intrastate railroad cars. The petitioner in that case charged that the law was meant to stigmatize them and did so by removing blacks from the presence of whites (while whites were also simultaneously removed from the presence of blacks). The petitioner in Plessy stipulated that the facilities at issue were tangibly “equal” to those reserved for whites. They maintained, though, that Louisiana’s requirement of racial separation—its prohibition of racially mixed intrastate train travel—violated the Equal Protection Clause. Louisiana defended its segregation law on the grounds that the law applied to everyone, blacks and whites alike; that the segregated facilities were “equal”; and that the compelled separation was for the convenience of the community as a whole. Upholding the constitutionality of the law, the Court dismissed the petitioner’s argument that the law targeted them for insult, thereby denigrating their status as legal equals to the whites. In the Court’s view, laws requiring separation in places where whites and blacks were liable to be brought into contact did not necessarily imply the inferiority of either race to the other. “We consider the underlying fallacy of the petitioner’s argument,” the Court declared, “to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”81The plaintiffs in Palmer claimed that the closure of the pools, like the segregation in Plessy, was a badge of inferiority purposefully pinned upon colored folk to signal and effectuate their subordinate status. And the Court in Palmer, like the Court in Plessy, rejected the plaintiffs’ contention, concluding that they were
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