From Plessy to Trump

John Marshall Harlan

When Lyndon Johnson as vice president first met with the cabinet of John Kennedy, he was mightily impressed by the academic credentials and intellectual firepower of the group. He said as much to Sam Rayburn, the crusty East Texan and longtime speaker of the House of Representatives. Rayburn nodded and granted that Kennedy’s advisers were a glittering bunch. “But I’d feel better if one of them had run for sheriff,” he added.

Practical experience is indeed useful in politics. It’s no less useful in jurisprudence. Judges need experience to foresee how their decisions will play out in the lives of the people to whom they apply.

This wasn’t a problem for most of American history, and it still isn’t in most of the American court system. State judges were and are typically elected, meaning they have to display a sufficiently common touch to win and hold their jobs. Federal judges have always been appointed, but until the mid-twentieth century their appointments usually followed success in politics, the professions or business: activities firmly rooted in the daily lives of Americans.

Justices of the Supreme Court sometimes had experience on the bench before being nominated, but often they did not. John Marshall hadn’t been a judge, nor Joseph Story, nor Roger Taney, nor Louis Brandeis, nor William O. Douglas, nor Earl Warren, nor William Rehnquist, nor Lewis Powell. This wasn’t considered a disqualification or even a demerit. The lived experience they brought in its place gave their rulings a credibility they would have lacked without it.

It also allowed some of them to call out their colleagues when appropriate. John Marshall Harlan had spent a quarter-century in Kentucky politics before being appointed to the Supreme Court in 1877. When the majority of the court in the 1896 case of Plessy v. Ferguson proclaimed a formula of “separate but equal” for race relations in American public life, Harlan declared it fatuous. “The arbitrary separation of citizens on the basis of race while they are on a public highway”–the Plessy case was about a Louisiana railroad law, and railroads were considered highways–”is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution.” In other words, in the American South, separate could not be equal. “​​"What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation." The justices in the majority were deluding themselves if they thought otherwise.

Harlan predicted that segregation would spread from railroads to other areas of public life. “If a State can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in streetcars or in open vehicles on a public road or street? Why may it not require sheriffs to assign whites to one side of a courtroom and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day?”

The Jim Crow system Harlan predicted soon became a rigid code across the South. Thus it remained for half a century, as any honest person with the least exposure to southern life could have guessed.

The decision of the Supreme Court in Trump v. U.S., announced on July 1, has the signs of a similar divorce from reality. This isn’t surprising, given that the Supreme Court has become increasingly divorced from reality. During the last several decades, justices have tended to follow similar paths to the high court: elite law school (on the current court, eight of the justices have degrees from Harvard or Yale), clerkship (often on the Supreme Court), early appointment to a federal circuit court, and finally the Supreme Court. None has been secretary of state (Marshall), governor (Warren), member of Congress (many), attorney general (several).

The reasoning in the majority opinion of Trump v. U.S. reflects this divorce from how politics works. The court weighed the risks of presidential immunity from prosecution against the risks of no immunity. It found the latter to be greater. "A president inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office,” said Chief Justice John Roberts.

This is true, theoretically. But criminal penalties have never befallen a former president in 235 years of the presidency. Donald Trump brought his case from fear it would happen this year, for the first time. Yet immunity-less conviction was hardly a foregone conclusion.

That’s because even with no immunity, there are backstops, namely juries and the appeal process. A vengeful successor might bring charges, but the charges still have to be proved. This system of juries and appeals has worked well in several centuries of practice in English and American law, and there’s no reason to think it will soon fail.

In the other direction, the one the court chose, there is no backstop. A president can do anything and not worry about prosecution. The court made a distinction between public acts of a president and private acts, but presidents are presidents 24/7. They don’t even go home from work at the end of the day. They live above the office. Any action by a president can be construed as a public act if the president wants it to be so construed.

But what about impeachment? This is the court’s preferred method of reining in presidents. It has the merit of being authorized by the Constitution. And it’s an appropriately political sanction for political offenses. 

But the impeachment net has three gaping holes. First, it requires a large degree of bipartisanship, which is utterly lacking in politics these days. Second, the penalty, removal from office, is dramatic but not dire. Presidents leave office sooner or later. Impeachment simply makes it sooner. Third, impeachment has no effect on a president whose crimes don’t come to light until after he has left office. A president who obstructs justice, takes a bribe, or has the FBI or IRS harass a rival, and who can cover his tracks until out of office, is home free. He can’t be impeached, and under the court’s interpretation of immunity, he can’t be prosecuted.

John Marshall Harlan’s grim prediction on Plessy came true quickly. The consequences of Trump might take longer to unfold. But they could be just as pernicious.