The Worst Supreme Court Opinion Ever?
One of the important issues that is discussed in my Bryan book is the disenfranchisement of African-Americans that occurred after the 1896 presidential election. Populists in the South were allied with Republicans and the freedmen against Democrats, whereas in the rest of the country (with a few exceptions in the silver areas of the West) Populists worked with Democrats. In a few Southern States (most notably North Carolina) this interracial alliance managed to wrest control of the state legislature and elect members of Congress. After Bryan’s first defeat, though, orthodox Democrats made a comeback in the South. Back in power, they decided to consolidate their gains by taking the ballot away from their enemies.
This is an crucial point that often gets overlooked. Prior to the 1890s, most African-Americans in the South voted. That vote was frequently marred by fraud, but it was still a factor in elections. Starting around 1900, however, a series of state constitutional amendments were adopted that put in place the suffrage restrictions that we associate with Jim Crow (poll taxes, literacy tests, grandfather clauses, etc.) Actually, the poll tax was mostly about blocking poor whites from voting, but the package as a whole was a blatant rejection of the Fifteenth Amendment.
What did the Supreme Court do about this? Nothing. When African-Americans in Alabama sued claiming that their constitutional rights were being violated, the Court rejected their challenge in Giles v. Harris. Justice Holmes wrote for the majority and held that “it seems to us impossible to grant the equitable relief which is asked” [i.e., force the State to register these citizens as voters]. Why was that?
“The bill imports that the great mass of the white population intends to keep the blacks from voting. To meet such an intent something more than ordering the plaintiff’s name to be inscribed upon the lists of 1902 will be needed. If the conspiracy and the intent exist, a name on a piece of paper will not defeat them. Unless we are prepared to supervise the voting in that state by officers of the court, it seems to us that all that the plaintiff could get from equity would be an empty form. Apart from damages to the individual, relief from a great political wrong, if done, as alleged, by the people of a state and the state itself, must be given by them or by the legislative and political department of the government of the United States.”
Now you can read this passage in one of three ways. First, it may be the best statement of Legal Realism in the United States Reports. “Sure we can order a remedy,” Holmes could be saying, “but the political branches won’t back us up, so why give people false hope?” Second, it could be the most cowardly statement ever made by the Court. (“We must give way before a conspiracy by a racist mob to deny people express constitutional rights.”) Or third, you might say that Holmes was recognizing that Bryan’s defeat was tantamount to an amendment of the Constitution that modified the Fifteenth Amendment, which dovetails with the larger descriptive argument that I make in the book, though that does not speak to the validity of the Court’s interpretation.
Giles, like Buck v. Bell, should be in the running for the worst Supreme Court decision of all time. It is worth noting that three Justices dissented in Giles (Harlan, Brewer, and perhaps most surprising, Justice Brown, the author of Plessy).