Is the Supreme Court Sometimes Irrelevant? Race and
the Southern Criminal Justice System in the 1940s

Michael J. Klarman

In recent years scholars, primarily political scientists and law professors, have questioned the capacity of courts to produce significant social change. Most notably, Professor Gerald N. Rosenberg has declared the notion that courts can reform society a "hollow hope." Rosenberg shows that Brown v. Board of Education (1954) brought about very little school desegregation until Congress passed landmark civil rights legislation to implement the Court's ruling. He also makes a strong case that Brown was less instrumental to the 1960s civil rights movement than is commonly supposed. Rosenberg likewise denies that the other epochal Supreme Court decision of the last half century, Roe v. Wade (1973), was instrumental in securing a woman's right to abortion. This skeptical scholarship has proved highly controversial, and many critics have vigorously reaffirmed the importance of Supreme Court rulings to the civil rights movement and other struggles for social reform.1	1
This article aims to refine the scholarly debate over the consequences of Supreme Court decision making. The first section examines the Court's first major criminal-procedure decisions—mainly from the 1930s and 1940s—which disproportionately involved southern blacks who had suffered egregious mistreatment from the Jim Crow criminal justice system. Drawing on the voluminous criminal case files in the papers of the National Association for the Advancement of Colored People (NAACP), I conclude that those decisions had virtually no impact on southern criminal justice in cases involving allegations of serious black-on-white crime, such as rape or murder. Notwithstanding the Supreme Court's interventions, southern blacks continued to experience nearly universal exclusion from criminal juries, to endure beatings aimed at coercing them into confessing crimes, and to suffer convictions for capital offenses after sham trials in which court-appointed lawyers barely went through the motions of providing a defense.	2
Yet, for two reasons it would be a mistake to conclude from this and other studies that civil rights litigation always proved fruitless.2 First, that some Supreme Court rulings on civil rights had minimal direct effects does not mean that all such decisions did. For example, the Court's most important white primary decision, Smith v. Allwright (1944), inaugurated a political revolution in the urban South. Second, the process of civil rights litigation, quite independent of its results, may have contributed to mobilizing a social protest movement. The second portion of this article examines both of those points. It considers how the process of litigation may have contributed to the modern civil rights movement: educating blacks about their rights, providing occasions for organizing local communities, featuring black lawyers such as Charles Hamilton Houston and Thurgood Marshall as role models for southern blacks, and informing northern whites (and judges) about southern Jim Crow conditions. A concluding section of the article contrasts the seemingly trivial consequences of the Supreme Court's criminal-procedure rulings with the dramatic impact of its white primary decision and draws tentative conclusions about the political and social conditions under which Supreme Court rulings have proved efficacious.3	3
. . .