May 3, 1948: Shelley v. Kraemer



Racial and religious restrictive covenants used to be distressingly familiar around the nation.  I have seen them in old deeds I have examined in reference to real estate transactions.  These covenants required purchasers of a piece of real estate not to re-sell it to specified racial or religious groups.  The groups targeted were usually blacks, people of Asian descent and Jews.  In 1926 the United States Supreme Court refused to hear an appeal in Corrigan v. Buckley, 271 U.S. 323 (1926) the United States Supreme Court unanimously refused to hear an appeal in a case enforcing such a covenant, the Court unanimously finding that since the covenant only involved private parties, the US Constitution did not forbid such a covenant.

22 years later in the case of Shelley v. Kraemer Shelley v. Kraemer,  334 U.S. 1 (1948).  In a unanimous opinion written by Chief Justice Fred Vinson the Court ruled that while the private restrictive covenants were not unconstitutional, state judicial proceedings to enforce them constituted state action and were unconstitutional under the Fourteenth Amendment:



Since the decision of this Court in the Civil Rights Cases, 109 U. S. 3 (1883), the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful. [Footnote 12]

We conclude, therefore, that the restrictive agreements, standing alone, cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State, and the provisions of the Amendment have not been violated. Cf. Corrigan v. Buckley, supra.

But here there was more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements. The respondents urge that judicial enforcement of private agreements does not amount to state action, or, in any event, the participation of the State is so attenuated in character as not to amount to state action within the meaning of the Fourteenth Amendment. Finally, it is suggested, even if the States in these cases may be deemed to have acted in the constitutional sense, their action did not deprive petitioners of rights guaranteed by the Fourteenth Amendment. We move to a consideration of these matters.


That the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment is a proposition which has long been established by decisions of this Court. That principle was given expression in the earliest cases involving the construction of the terms of the Fourteenth Amendment. Thus, in Virginia v. Rives, 100 U. S. 313, 100 U. S. 318 (1880), this Court stated:

“It is doubtless true that a State may act through different agencies, either by its legislative, its executive, or its judicial authorities, and the prohibitions of the amendment extend to all action of the State denying equal protection of the laws, whether it be action by one of these agencies or by another.”

In Ex parte Virginia, 100 U. S. 339, 100 U. S. 347 (1880), the Court observed: “A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way.” In the Civil Rights Cases, 109 U. S. 3, 109 U. S. 11, 17 (1883), this Court pointed out that the Amendment makes void “State action of every kind” which is inconsistent with the guaranties therein contained, and extends to manifestations of “State authority in the shape of laws, customs, or judicial or executive proceedings.” Language to like effect is employed no less than eighteen times during the course of that opinion. [Footnote 13]

Similar expressions, giving specific recognition to the fact that judicial action is to be regarded as action of the State for the purposes of the Fourteenth Amendment, are to be found in numerous cases which have been more recently decided. In Twining v. New Jersey, 211 U. S. 78, 211 U. S. 90-91 (1908), the Court said: “The judicial act of the highest court of the State, in authoritatively construing and enforcing its laws, is the act of the State.” In Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U. S. 673, 281 U. S. 680 (1930), the Court, through Mr. Justice Brandeis, stated:

“The federal guaranty of due process extends to state action through its judicial as well as through its legislative, executive or administrative branch of government.”

Further examples of such declarations in the opinions of this Court are not lacking. [Footnote 14]

One of the earliest applications of the prohibitions contained in the Fourteenth Amendment to action of state judicial officials occurred in cases in which Negroes had been excluded from jury service in criminal prosecutions by reason of their race or color. These cases demonstrate, also, the early recognition by this Court that state action in violation of the Amendment’s provisions is equally repugnant to the constitutional commands whether directed by state statute or taken by a judicial official in the absence of statute. Thus, in Strauder v. West Virginia, 100 U. S. 303 (1880), this Court declared invalid a state statute restricting jury service to white persons as amounting to a denial of the equal protection of the laws to the colored defendant in that case. In the same volume of the reports, the Court in Ex parte Virginia, supra, held that a similar discrimination imposed by the action of a state judge denied rights protected by the Amendment, despite the fact that the language of the state statute relating to jury service contained no such restrictions.

The action of state courts in imposing penalties or depriving parties of other substantive rights without providing adequate notice and opportunity to defend has, of course, long been regarded as a denial of the due process of law guaranteed by the Fourteenth Amendment. Brinkerhoff-Faris Trust & Savings Co. v. Hill, supra. Cf. Pennoyer v. Neff, 95 U. S. 714 (1878). [Footnote 15]

In numerous eases, this Court has reversed criminal convictions in state courts for failure of those courts to provide the essential ingredients of a fair hearing. Thus, it has been held that convictions obtained in state courts under the domination of a mob are void. Moore v. Dempsey, 261 U. S. 86 (1923). And see Frank v. Mangum, 237 U. S. 309 (1915). Convictions obtained bycoerced confessions, [Footnote 16] by the use of perjured testimony known by the prosecution to be such, [Footnote 17] or without the effective assistance of counsel, [Footnote 18] have also been held to be exertions of state authority in conflict with the fundamental rights protected by the Fourteenth Amendment.

But the examples of state judicial action which have been held by this Court to violate the Amendment’s commands are not restricted to situations in which the judicial proceedings were found in some manner to be procedurally unfair. It has been recognized that the action of state courts in enforcing a substantive common law rule formulated by those courts, may result in the denial of rights guaranteed by the Fourteenth Amendment, even though the judicial proceedings in such cases may have been in complete accord with the most rigorous conceptions of procedural due process. [Footnote 19] Thus, in American Federation of Labor v. Swing, 312 U. S. 321 (1941), enforcement by state courts of the common law policy of the State, which resulted in the restraining of peaceful picketing, was held to be state action of the sort prohibited by the Amendment’s guaranties of freedom of discussion. [Footnote 20] In Cantwell v. Connecticut, 310 U. S. 296   (1940), a conviction in a state court of the common law crime of breach of the peace was, under the circumstances of the case, found to be a violation of the Amendment’s commands relating to freedom of religion. In Bridges v. California, 314 U. S. 252 (1941), enforcement of the state’s common law rule relating to contempts by publication was held to be state action inconsistent with the prohibitions of the Fourteenth Amendment. [Footnote 21] And cf. Chicago, Burlington and Quincy R. Co. v. Chicago, 166 U. S. 226 (1897).

The short of the matter is that, from the time of the adoption of the Fourteenth Amendment until the present, it has been the consistent ruling of this Court that the action of the States to which the Amendment has reference includes action of state courts and state judicial officials. Although, in construing the terms of the Fourteenth Amendment, differences have from time to time been expressed as to whether particular types of state action may be said to offend the Amendment’s prohibitory provisions, it has never been suggested that state court action is immunized from the operation of those provisions simply because the act is that of the judicial branch of the state government.


Against this background of judicial construction, extending over a period of some three-quarters of a century, we are called upon to consider whether enforcement by state courts of the restrictive agreements in these cases may be deemed to be the acts of those States, and, if so, whether that action has denied these petitioners the equal protection of the laws which the Amendment was intended to insure.

We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers, and contracts of sale were accordingly consummated. It is clear that, but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.

These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and nonenforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing.

The enforcement of the restrictive agreements by the state courts in these cases was directed pursuant to the common law policy of the States as formulated by those courts in earlier decisions. [Footnote 22] In the Missouri case, enforcement of the covenant was directed in the first instance by the highest court of the State after the trial court had determined the agreement to be invalid for want of the requisite number of signatures. In the Michigan case, the order of enforcement by the trial court was affirmed by the highest state court. [Footnote 23] The judicial action in each case bears the clear and unmistakable imprimatur of the State. We have noted that previous decisions of this Court have established the proposition that judicial action is not immunized from the operation of the Fourteenth Amendment simply because it is taken pursuant to the state’s common law policy. [Footnote 24] Nor is the Amendment ineffective simply because the particular pattern of discrimination, which the State has enforced, was defined initially by the terms of a private agreement. State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms. And when the effect of that action is to deny rights subject to the protection of the Fourteenth Amendment, it is the obligation of this Court to enforce the constitutional commands.

We hold that, in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws, and that, therefore, the action of the state courts cannot stand. We have noted that freedom from discrimination by the States in the enjoyment of property rights was among the basic objectives sought to be effectuated by the framers of the Fourteenth Amendment. That such discrimination has occurred in these cases is clear. Because of the race or color of these petitioners, they have been denied rights of ownership or occupancy enjoyed as a matter of course by other citizens of different race or color. [Footnote 25] The Fourteenth Amendment declares “that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.


Published in: on May 3, 2021 at 5:30 am  Comments Off on May 3, 1948: Shelley v. Kraemer  
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January 22, 1973: Roe v. Wade



As we observe the sad forty-seventh anniversary of Roe v. Wade, the Supreme Court decision that overturned all state laws banning abortions and effectively served as a judicial death warrant for tens of millions of innocents, I think it is appropriate to pay tribute to the two dissenting Justices, Byron White, a Democrat, and William Rehnquist, a Republican.  Here are the texts of their dissents:

MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting.

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical adviser willing to undertake the procedure.

The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.


Published in: on January 22, 2021 at 5:30 am  Comments Off on January 22, 1973: Roe v. Wade  
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The Filibuster and the Supreme Court


The Democrats have decided to filibuster the nomination by President Trump of Judge Neil Gorsuch to the Supreme Court. There never has been the use of a filibuster to block a Supreme Court nomination in our nation’s history except for the case of LBJ who nominated Justice Abe Fortas, former Johnson mouthpiece, to be the Chief Justice in 1968. His nomination fell to a bipartisan filibuster after it became known that Fortas, while on the Court, served as a Johnson adviser and, in effect, as an unofficial member of Johnson’s cabinet. It didn’t help that, as in the case of the man who nominated him, Fortas was suspected of being a crook, a suspicion which was proved in 1969 when public outcry forced Fortas to resign from the Supreme Court.

The filibuster is a creature of the Senate rules, and like any rule in the Senate may be changed by simple majority vote. Ridding the Senate of the filibuster is called the nuclear option. The Senate went nuclear on November 21, 2013 when former Majority Leader Harry Reid, tiring of Republicans filibustering Obama’s lower court nominees, as the Democrats had the lower court nominees of Bush, pulled the nuclear trigger on November 21, 2013 to get rid of the filibuster in regard to lower court appointees.

I suspect that the Republicans will go nuclear and end filibusters for Supreme Court nominees and end the period of our nation’s history where the filibuster was used to block judicial nominees.

Published in: on April 4, 2017 at 6:37 am  Comments Off on The Filibuster and the Supreme Court  
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The Dorr Rebellion

One of the major developments in American history in the first half of the Nineteenth Century was the extension of the franchise to all adult white men.  By 1841, Rhode Island was the only state that had not removed the property requirement for voting by adult white men.  Years of frustration in failed attempts to remove the property requirement through legislation burst out into one of the more unusual rebellions in US history.  Led by Thomas W. Dorr, a so-called People’s Convention was held in October 1841 which drafted a new constitution for Rhode Island.  The convention had not been authorized by the Rhode Island legislature.  Opponents of Dorr and his followers in the state legislature drafted a new constitution for Rhode Island which they designated the Freeman’s Constitution.  This constitution made some concessions to broadening the franchise.  It was defeated in the legislature by followers of Dorr.

A statewide referendum called by Dorr approved the constitution which had been drafted by the People’s Convention.  In 1842 Rhode Island witnessed two sets of election with two competing legislatures and two governors: Thomas W. Dorr and Samuel W. King.

The Dorr forces attempted an attack on the arsenal in Providence on May 19, 1842 and were routed, most, including Dorr, fleeing the state.  The Rhode Island legislature approved a new Constitution which was approved by a referendum.  The new constitution extended the franchise to all adult white men who could pay a poll tax of $1.00.

In the case of Luther v. Borden, 48 US 1, the United States Supreme Court declined to rule on which of the competing Rhode Island governments had been the legitimate government, holding that such a decision was a political one and not subject to judicial determination: (more…)

Published in: on June 20, 2012 at 5:30 am  Comments Off on The Dorr Rebellion  
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General Order Number 20

During the Mexican War, General Winfield Scott, who was commanding the American invasion that would take Mexico City and win the War, was concerned about crimes committed by American troops, especially volunteers, against the Mexican civilian population.  (The crimes were often precipitated by the anger of American troops at sickening mutilation and murder of Americans captured by Mexican guerillas.)  Up to this time, American soldiers accused of crimes against civilians had simply been tried in American civilian courts.  This was clearly not an option available during a war waged on foreign soil.  Scott hit upon the idea of trying troops before military commissions, and he embodied this idea in Order Number 20.  Here is the text of the order: (more…)

Published in: on March 16, 2012 at 5:30 am  Comments Off on General Order Number 20  
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McCulloch v. Maryland

The above video was produced by PBS under contract from the United States Judicial Conference in 1976 as part of the bicentennial celebrations.

Maryland in 1818 attempted to tax notes of all banks not chartered in Maryland.  The tax was an attempt to impede the operation of the Second Bank of the United States in Maryland.  James McCulloch, branch manager of the Baltimore branch of the Second Bank of the United States refused to pay the tax.  The Maryland courts found that since the Constitution did not grant the Congress authority to charter a Bank, the Second Bank of the United States was unconstitutional.

On appeal to the US Supreme Court, John Marshall wrote the opinion of the Court finding that Congress had the authority to charter the Bank and that Maryland could not impede the operation of the Bank. (more…)

Published in: on September 2, 2010 at 5:30 am  Comments (1)  
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Marbury v. Madison

The above video was produced by PBS under contract from the United States Judicial Conference in 1976 as part of the bicentennial celebrations.

Marbury was the first step by the United States Supreme Court down a path which today has left it the final authority on any piece of legislation, state or federal, that comes before it.  This of course would have astounded the Founding Fathers.  In the Britain of their day Parliament reigned supreme, and the idea of a British court overturning an act of Parliament would have been considered a bad joke.  Likewise, colonial legislatures exercised the same sort of authority free of judicial review in America.

The case arose from the flurry of activity engaged in by lameduck President John Adams and the lameduck Federalist Congress.  Eager to install as many Federalists in positions of authority as possible before the Jeffersonian Republicans came to power, Congress passed the Judiciary Act of 1801 amending the Judiciary Act of 1789.  The Act created six new Federal district courts and doubled the number of Federal circuit courts of  appeal from three to six.  Adams, just before his term ended, appointed 16 Federal circuit judges and 42 Federal Justices of the Peace, among them William Marbury, an ardent Federalist.  It fell to John Marshall, still acting as Secretary of State, although he had recently been appointed Chief Justice of the Supreme Court, to deliver the appointments.  Not all of the appointments could be delivered before the end of the Adams administration.  The new Secretary of State, James Madison, refused to deliver the appointments that had not been delivered.

The Judiciary Act of 1789 authorized the Supreme Court to order writs of mandamus to Federal officials.  Marbury filed suit with the Supreme Court requesting that a writ of mandamus issue compelling Madison to issue his appointment.

Marshall wrote the decision of the Court in 1803 which has always struck me as odd.  His involvement in delivering, and failing to deliver, the appointments should have caused him to recuse himself from the case.  In any event Marshall held that the Court could not issue a writ of mandamus because Congress could not expand the jurisdiction granted to the Supreme Court by the Constitution, and that the attempt to expand the jurisdiction was unconstitutional.

Marshall defended the assumption of the power to hold acts of Congress unconstitutional by the Court in the decision: (more…)