| Book Review | Law and History Review, 25.3

Book Review

Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, New York: Oxford University Press, 2004. Pp. xii + 655. $35.00 cloth (ISBN 0-19-512903-2); $19.95 paper (ISBN 0-19-531018-7).

Michael Klarman has written an exhaustive—and according to many reviewers a definitive—account of the United States Supreme Court's twentieth-century jurisprudence of race. Klarman describes in varying degrees of detail every Supreme Court decision involving race from the beginning of the Plessy era through Brown v. Board of Education. Klarman organizes the cases into seven historical periods and accompanies his case discussions with short surveys of each period's "context." Klarman's method underlies his related theses: that Supreme Court decisions are largely reflective of the political and social mores of the times, and that the decisions did not have great independent significance (5, 448–49, 454). Klarman is not suggesting that law and politics are one and the same. He contends that when the law is reasonably clear, judges will generally follow it. Social and political context come into play only when the law is more indeterminate. But of course constitutional cases involving race almost always involve some degree of legal indeterminance. Anyone interested in the role of courts on contested social and political issues will find much to admire in this book, but may also be troubled by overdrawn conclusions and sweeping generalizations.

Klarman's Court-as-societal-mirror thesis is neither startling nor original at this point. It has become a standard revisionist view in political science, history, and some strands of legal academia. This theory has whittled away at the notion that Supreme Court justices (and federal judges generally) are anti-democratic and yet heroic protectors of disempowered groups (449–54). To the contrary, Klarman claims that "when a minority group suffering oppression is most in need of judicial protection, it is least likely to receive it" (450). Instead of creating dramatic changes in race relations through ground-breaking decisions, the Supreme Court embodies changes that have already occurred as a result of a confluence of "political, economic, social, demographic, ideological, and international causes" (443). While the Supreme Court race cases of the Jim Crow and Civil Rights eras appeared contested, Klarman argues that most actually reflected a "national consensus on a handful of southern outliers" (453).

The book's contribution to the revisionist school then is not in its thesis, but in its scope and the methodological performance of its thesis. Within its pages, the reader finds nicely rendered accounts of the Supreme Court's race decisions surrounded by compelling depictions of the general political milieu during the Plessy era, the Progressive era, the interwar period, the World War II era, the post-war lead-up to Brown, Brown itself, and the Civil Rights Movement of the 1960s. Sprinkled throughout the historical surveys are individual stories designed to personalize the general accounts.

The historical surveys are superficial—as surveys necessarily are—and historians of the periods Klarman describes will undoubtedly find much to criticize. For example, in describing the Progressive Era, Klarman asserts that the tremendous popularity of D. W. Griffith's epic film Birth of a Nation "typified the national racial mood" (66). Most historians would likely agree generally with this statement, but might fault Klarman for failing to explain also that the film was controversial enough that some states and cities, including Iowa, Ohio, and St. Louis, Missouri, forbade it from its theatres, while others demanded modifications to remove the most inflammatory scenes. Klarman's chapter describing the interwar period acknowledges the NAACP's successful effort to convince some cities to ban the film, but this discussion does not correct the earlier overgeneralization.

While many readers will find Klarman's historical surveys useful for the substantive support (and thorough annotations) they provide for his claims, others will find his broad-brush approach to history frustrating. This use of history is not problematic merely for purists. Rather, Klarman's willingness to gloss over complicating facts raises questions about the accuracy of his thesis: if the racial climate at various historical junctures was more contested than Klarman lets on, were the Supreme Court's decisions as inevitable as he claims?

Klarman also challenges the image of the Court as deeply significant. He acknowledges the difficulty of determining the consequences of Brown (454), but Klarman concludes that Brown had little direct impact; instead, its major effect was indirect. Brown incited a violent response by Southerners, which in turn "rallied national opinion behind the enforcement of Brown and the enactment of civil rights legislation" (385). Klarman adheres to the view that civil rights progress was likely a given and that, indeed, it may have been achieved with less bloodshed without the Supreme Court's intervention in Brown. Klarman's analysis of Brown has been criticized by many prominent legal historians, including Paul Finkleman in the Harvard Law Review, and I will not repeat that debate here.

Klarman reaches more categorical conclusions about less celebrated cases. To avoid sweeping generalities myself, I will focus specifically on Klarman's treatment of Buchanan v. Warley, the Supreme Court's unanimous decision in 1917 holding de jure residential segregation invalid. Klarman notes that Buchanan, though decided during the nadir of race relations, was not constitutionally easy. The Kentucky ordinance at issue required formal equality—neither blacks nor whites were permitted to buy property on blocks inhabited by residents of the other race. However, Klarman rejects any notion that the decision reflected any view about race; instead, he claims it reflects only the Court's willingness to protect property rights.

Curiously, Klarman ignores the obvious: the Court is extending its willingness to protect property rights to African Americans. A decision to exclude African Americans from the Court's property protections would have been about race—so the contrary decision necessarily is as well.

Klarman's insistence that decisions invalidating racial zoning were not about race extends to his analysis of state court decisions. He claims that "[c]oncerns of racial equality played no role in these decisions" (81). While Klarman is correct that courts in Maryland and Georgia initially ruled narrowly, protecting only against ordinances that applied retroactively (although the Georgia Court later held that a racial zoning law was a reasonable exercise of the police power—a racialized decision), the North Carolina Supreme Court directly addressed the harm to blacks from state-mandated segregation (State v. Darnell, 81 S.E. at 339). Indeed, the Court seemed to imply that such a decision was absurd, creating a precedent allowing ordinances requiring "Republicans to live on certain streets and Democrats on others ... ; and that Irish and those of Irish descent should dwell only in certain localities, designated for them by the arbitrary judgment and permission of a majority of the aldermen." The Court likened the ordinance to the residential prohibitions upon the Irish and the Jews in Europe. What Klarman may mean to say is that the state cases did not make inroads upon social equality—which even the North Carolina court, deciding in a post-Plessy world—did not.

Klarman is even more definitive in his conclusion about Buchanan's significance: in his view, it had "absolutely no impact on racial residential patterns" and "did not stem the rising tide of white supremacy" (454, 93). He dismisses the view held by some scholars (and many contemporaries) that had Buchanan come out the other way, "racial apartheid might have swept the south" (90). Klarman is obviously correct in emphasizing that racial segregation persisted—and indeed spread to the North—despite Buchanan. Restrictive covenants, redlining, exclusionary zoning, real estate practices, and violence all contributed to the unprecedented segregation of African Americans throughout the country. Still, Klarman's confident assertion that Buchanan was wholly irrelevant is misplaced.

Klarman appears to presume that following the Civil War, the United States was immune from the worst evils that have befallen other parts of the world—that full-scale legalized apartheid or even the horrors of intentional racial genocide couldn't happen here. Charles Logfren's analysis of Plessy suggests an alternative read of Buchanan: it is an example of the Court setting limits against what Charles Lofgren terms the "worst deprivations" (The Plessy Case, 201). Indeed to a far greater extent than Plessy, the Buchanan Court rejected the view that "the Constitution recognized two categories of citizenship, one for whites and the other for non-whites" (id.). One need not soft-pedal the horrors that African Americans experienced during Jim Crow to realize that in the twentieth century at least, our country managed to stave off the grossest manifestations of white supremacy—and that Supreme Court decisions like Buchanan may have played some role.

Rachel D. Godsil

Seton Hall University School of Law

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