The man appealed his case to the Supreme Court. Four years later, the court rejected his claim that sitting in a segregated train car stamped him with “a badge of servitude.”
It’s hard today not to marvel at the casual cruelty of the Plessy decision. How could the court accept the transparent lie that blacks lived in separate but equal worlds with whites? And how could they give Constitutional sanction to a blatant display of racism?
“If they accept the census question, they are following the same pattern that the late-19th-century and 20th-century court made that was clearly intended to cement white rule,” says Lawrence Goldstone, author of “Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903.”
A court that sees and hears no evil
The case revolves around a simple request. The Trump administration says it wants the Census Bureau to ask residents whether they are US citizens. The Department of Justice says it would help ensure the voting rights of racial minorities.
The formula for this version of White Supremacy 2.0 is the same as it was then: Ignore the racist intent behind laws to justify a preordained decision, says Goldstone, author of “Inherently Unequal.”
“If the Court chooses to pretend that what was said was not said, and that blatant motive is not relevant, we are back to the late 19th century indeed,” Goldstone says after citing evidence alleging that the Trump administration isn’t being honest about why it wants to add a citizenship question to the census.
“In criminal cases, motive and intent is everything. Why not here?” Goldstone says. “Lady Justice may be blind, but it shouldn’t be dumb.”
Supporters of the citizenship question say, though, that its purpose is actually protecting racial minorities. The Commerce Department has said it wants to add the citizenship question because it would bolster the government’s efforts to enforce the Voting Rights Act.
Besides, other countries include a citizenship question on their census. Why not America, says Hans von Spakovsky with the Heritage Foundation, a conservative think tank.
“We have also been in the midst of a contentious debate for more than a decade about immigration,” Spakovsky wrote. “To have an informed debate, shouldn’t we have accurate information about the citizen/noncitizen population of the country?”
White supremacy 2.0?
So is it really fair to compare a modern-day question about administering the census to a white-supremacist era where thousands of newly freed slaves throughout the South were lynched for offenses ranging from holding elected office to attempting to vote?
And how can one compare a court that legalized same-sex marriage nationally to its counterpart in the 19th century, which played a decisive role in destroying Reconstruction, the nation’s first attempt at a multiracial democracy?
Plessy, the man who took the historic train ride, still had hope in the Supreme Court of his era. His trip wasn’t random. He was an activist who stepped in the whites- only railroad car expecting to be arrested.
He wanted to challenge a Louisiana state law passed two years earlier that required “equal but separate accommodations for white and colored races.” In his case against John Howard Ferguson, the Louisiana judge who convicted him, he said it violated his constitutional guarantee of equal rights.
But white supremacy is not confined to racist judges from another era. Some say it is also about preserving white dominance over other racial groups in all sorts of subtle ways.
Ibram X. Kendi, author of “How to be an Antiracist,” says the Trump administration citizenship request is a modern manifestation of racism because it is driven by the same impulse that drove white supremacists in the South during Jim Crow.
“They’re trying to figure out a way to maintain white supremacy in the race of changing demographics,” says Kendi when asked about the purpose behind the census citizenship question. “You certainly have white supremacists who burn crosses. Then you have the white supremacists that push through voter ID laws to ensure that certain populations are suppressed specifically so that white voters can have a disproportionate amount of power.”
When the court looks the other way
Big questions about political power often end up before the Supreme Court, especially when the topic involves race.
Yet the Supreme Court has still found ways in the past to ignore or deflect ample evidence of racism and bigotry in some of its most important decisions.
Conservatives on the contemporary Supreme Court have already shown how that’s done when they upheld President Trump’s travel ban on immigrants from some Muslim-majority countries last year, critics say. They defer to authority instead of confronting the racist intent behind some laws, some say.
Another legal historian sees the same deft avoidance of confronting prejudice while listening to the oral arguments in the census case.
Peter Irons, author of “A People’s History of the Supreme Court,” says he was struck by how the court’s conservative justices evaded the case’s central question: Did the Trump administration add the citizenship question to the census to boost white Republican power at the expense of Latinos?
Instead the conservative justices focused on tangential questions revolving around the Trump administration’s authority to add the question, he says.
“What the court does — and the court does this often — is evade reality,” Irons says. “It allows them to focus on technical questions. “
How the Plessy playbook plays out today
The court’s 19th-century counterparts did the same in the Plessy v. Ferguson case, Irons says.
The justices who ruled against Plessy didn’t bother to confront the white-supremacist thinking that formed the backdrop of the case. They decided instead that they had to honor the authority of the state of Louisiana to make its own laws, Irons says.
“The court deferred to their justification, which was clearly racist,” Irons says. “The lawyer for the state of Louisiana said white people don’t want to ride on the same coaches because black people smell bad. You can’t get more racist than that. And the court ignored that. It just said there’s a reason for this and, we’re going to defer to the state’s articulation of that reason.”
Irons says he doubts if any of those Supreme Court justices in that era experienced remorse over their decisions.
“They all came from white, privileged backgrounds,” he says. “Their family status, their education — they were part of the white elite.”
“If you look at the history of this country from the first Supreme Court until now, for almost our entire history it has been conservative,” Goldstone says. “It has been a protector of a certain status quo. It has certainly been protective of white rule.”
It got away with protecting the status quo in the 19th century because not many white Americans cared if people of color like Plessy were treated like second-class citizens.
The court weighing the census decision is facing a much more diverse America. But that doesn’t mean the conservative majority won’t still try to tilt the court back to the 19th century, Goldstone says.
They would be fighting two powerful trends: A changing America and a court that has managed to put decisions like Plessy v. Ferguson behind it.
That would change if the court accepts the addition of a citizenship question to the census, Goldstone says.
“What we didn’t do, other than the post-Reconstruction era, is really move backward,” he says. “We kind of moved forward slowly. This could be the first time except for post-Reconstruction that the country really moved backward. It’ll make us less free, less equal and less democratic.”