Thursday, February 22, 2024

The Taft Court, Equal Protection, and The Centrality (or not) of Race

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

 Ariela Gross

Robert Post’s magisterial history of the Taft Court devotes only its final chapter (out of forty-three) to equal protection and race, in fitting recognition of the level of importance the Taft Court assigned to the protection of Black rights in a decade that saw some of the bloodiest massacres of Black Americans since the Civil War and its violent aftermath, well beyond the borders of the former Confederacy.

As Black landownership reached an all-time high in 1910 (not matched since), Black soldiers returned from war in Europe to a nation recommitting itself to white supremacy. The Tulsa Massacre destroyed the area known as Black Wall Street, injuring more than 800 people, killing as many as 300, and destroying 35 city blocks. In 1923, 200 white men attacked the Black community of Rosewood, Florida, killing more than 30 people and effectively racially cleansing the town of Black residents. Such racial cleansings and establishment of “sundown towns” happened across the United States. At the same time, nativism swelled to unprecedented levels as Congress passed the racist Immigration Act of 1924, which drew the interest of Hitler and the Nazis as the most perfect racial law yet conceived. As one Nazi scholar put it, the 1924 law “represents a carefully thought-through system that … protects the United States from the eugenic point of view.” (See James Q. Whitman, Hitler’s American Model) In Virginia, the Racial Integrity Law of 1924 not only codified a strict “one drop of blood” definition of blackness, but created an administrative bureaucracy to ferret out and recategorize people of any African ancestry, including Indian tribes that may have absorbed people of African descent. This was also a period of rising racial segregation in cities outside the U.S. South, using a variety of legal mechanisms, including zoning and racial covenants, to exclude Black people, Mexican Americans, and Asians from neighborhoods, as well as from public accommodations, voting booths, and other institutions of public life.

During this period of racial and ethnic cleansing, Dean Post tells us, the Court did not see its role as the safeguard of minority rights. When it used the equal protection clause, it was primarily to protect corporations from discrimination (as against other persons, or in-state vs. out-of-state corporations), to “advance social policies that it deemed important, like safeguarding the national market from local interference, protecting corporations and employers, and promoting economic development.” (Post, 1430) But when it came to Black rights, the Court reflected Northern Republican popular opinion, which acquiesced to Southern white supremacists with regard to “social equality” among races, and took a formalist approach to the civil rights that would be protected by law.

Although there were a few cases in which the Court interpreted “equal protection of the laws” to strike down a discriminatory law, Post suggests these were the exception that proved the rule. Nixon v. Herndon (1927) was one, striking down the white Texas primary not on Fifteenth Amendment grounds but because its facial racial classification violated the equal protection clause of the Fourteenth Amendment. After delivering the opinion, Post quotes Holmes to the effect that, “I know that our good brethren, the negroes of Texas, will now rejoice that they possess at the primary the rights which heretofore they have enjoyed at the general election.” Some, including apparently Thurgood Marshall, saw this as evidence that Holmes actually thought he’d settled the matter; others read it as ironic (1436). As we know, however, Texas continued to refine its primary rules to exclude Black people, and although Nixon won another challenge to the Texas process in Nixon v. Condon (1932), a few years later the Supreme Court in Grovey v. Townsend (1935) upheld Texas’s sham system.

Eight months after the promising case of Nixon v. Herndon came Gong Lum v. Rice, involving a Chinese American child assigned to a “colored school” in Mississippi, in which the Court reaffirmed that school segregation would be left to the states. Post argues that the two cases “can be reconciled only by carefully examining the intensely ambivalent attitudes toward race held by Northern Republican elites during the 1920s.” (1438) These attitudes were best captured by Booker T. Washington’s (public) approach of "In all things that are purely social we can be as separate as the fingers, yet one as the hand in all things essential to mutual progress" – a commitment to economic development, and a promise to white supremacists that there would be no claims to, or recognition of, “social equality.”

The Taft Court asserted most clearly its unquestioning acceptance of white supremacy in the Thind case, finding that a Punjabi immigrant was not a free white person for the purposes of naturalization to citizenship, and defining whiteness as “the common man” would understand it. The Court went on to uphold Western “alien land laws” based on the ineradicable gulf between U.S. citizens and Asians ineligible to citizenship. “Caught between the Court’s acceptance of racial caste and the Court’s celebration of a classless society of individuals, it is no wonder that equal protection doctrine during the Taft Court era proved aimless and ineffectual,” writes Post. (1458) In his tale, it was not until the NAACP opposed Parker’s nomination in 1930 that Black legal actors became significant in the constitutional narrative. Black people did not start to get political rights until they showed they could exercise political agency. 

Post describes the Taft Court’s commitment to “separate but equal” as “maintain[ing] a kind of tepid fidelity to the ideals of equality enshrined in the Reconstruction Amendments championed by Republicans after the Civil War.” (1442) Whereas in the labor context, Taft believed popular opinion should be ruthlessly opposed by legal enforcement, in the race context, he believed law must give way to public opinion, including Southern white racism.

Post’s analysis of the Court’s equal protection jurisprudence is undoubtedly on target, yet I find his discussion a bit generous to the Taft Court, because it assumes that racism was an accommodation to Southern public opinion rather than a core Northern white perspective. In addition, it portrays white supremacy as incidental to the Court’s four core narratives of constitutional law, and its interpretations of the Reconstruction Amendments. In Post’s story, race was a sideline in the 1920s – a few cases in each direction (good and bad), but seen by the Taft Court as incidental to the Fourteenth Amendment, which was the vehicle for the “important” social policies: managing industrial warfare, the enormous growth of the Federal government, and in particular of executive power in wartime.

I want to suggest instead that white supremacy, and the rejection of Reconstruction as a transformative moment in constitutional history, was a central narrative for the Taft Court, along with the other four narratives that Post identifies. As Niko Bowie and Daphna Renan have shown so brilliantly, Chief Justice Taft in particular, as well as other members of the Taft Court, subscribed to the Dunning School/Lost Cause narrative of the history of Reconstruction. Reconstruction was a “tragic era” in which a runaway Congress imposed Black voting (“Negro misrule”) on the powerless Southern states, and the result was disaster. Not only did Taft believe that the Reconstruction Amendments deserved less deference than the 1787 Constitution, but influenced by their view of Reconstruction, the Taft Court sought to assert unprecedented executive power (in Myers), and to reassert states’ rights in many areas – including, but not only, in the realm of Black rights and school segregation.

If we include this historical narrative among the governing narratives of constitutional law under the Taft Court, we can see that white supremacy actually underlies many of the broader commitments of the Court. Because unchecked federal legislative power led to dangerous ends, upsetting the racial order, it was necessary to empower states and to strengthen the executive. White supremacy also underlay Euclid v. Amber Realty, which gave great discretion to local jurisdictions in zoning, effectively excluding people of color from many areas as long as the ordinance were facially neutral, as well as Corrigan v. Buckley in the same year, upholding restrictive covenants. 

Ariela Gross is Distinguished Professor of Law at UCLA School of Law. You can reach her by e-mail at

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