The Marble Palace blog: “Plessy” and previous


Thanks for reading the Marble Palace Blog, which I hope will inform and surprise you about the Supreme Court of the United States. My name is Tony Mauro. I have covered the Supreme Court since 1979 and for the ALM since 2000. I took my semi-retirement in 2019, but I am still fascinated by the High Court. I will be happy to receive advice or suggestions for topics to write. You can reach me at [email protected].

In the “better late than never” category, Louisiana Governor John Bel Edwards signed a posthumous pardon for Homer Plessy on Jan. 5 in a ceremony in New Orleans.

It was 1892 when Plessy, a black man, volunteered to be arrested for refusing to leave a white railroad car, violating Louisiana’s Separate Car Act. He took his case to the Supreme Court of the United States, ending with Plessy v. Ferguson, a “separate but equal” ruling in favor of Louisiana that has tarnished the reputation of the High Court for decades.

“The stroke of the pen on this forgiveness, while important, does not erase generations of pain and discrimination. We can all recognize that we have a long way to go, ”said Edwards. “I am more than grateful that I have a small role to play in ensuring that Homer Plessy’s legacy is entirely defined by the justness of his cause and not stained by an unjust criminal conviction.”

Plessy’s legacy lives on, not only as a symbol of the fight against segregation, but as a person whose name still resonates in today’s Supreme Court. An online search for Supreme Court opinions, newspapers and argument transcripts found that Plessy’s name has been cited 34 times since 2000. Most of the citations imply when and if Supreme Court precedents should be canceled, like Plessy v. Ferguson was in Brown v. Board of Education in 1954.

Steve Luxenberg, author of “Separate”, the definitive book on Plessy v. Ferguson, wrote: “The Plessy The case highlights a central fact about the Supreme Court: its decisions cannot be viewed in isolation. They follow a series of earlier decisions and precede a new set of problems. “

As recently as December 1, Plessy’s name was invoked by the Supreme Court. When the judges considered the abortion case Dobbs v. Jackson Women’s Health Organization, several judges underlined the Plessy decision as being sufficiently “flagrant” to be overturned. Reversing precedents such as Roe vs. Wade and Planned Parenthood v. Casey are at stake in the case.

Here are some of the Supreme Court mentions of Plessy since 2000:

➤ “Much of the colloquium you have had with all of us has been on the benefits of stare decisis, which no one disputes, I think, and of course no one can dispute as it is part of our doctrine of stare decisis. stare decisis that this is not an inexorable order and that there are certain circumstances in which rescission is possible. You know we have Plessy, Brown. We have Bowers vs. Hardwick at Laurent [v. Texas].“- Justice Amy Coney Barrett at the Dobbs oral argument in December 2021.

➤ “My vision of the Constitution is justice [John Marshall] from Harlan [dissenting] seen in Plessy: “Our Constitution is color blind and neither recognizes nor tolerates classes among citizens. ” Adoption of Justice Clarence Thomas in the 2007 case Parents Involved in Community Schools c. Seattle School District No. 1.

➤ “Stare decisis has many virtues, but when it comes to upholding the Constitution, this tribunal must (and always has) taken special care in the application of doctrine. … Indeed, blind obedience to stare decisis would leave this tribunal always in place with grotesque errors like Dred Scott v. Sandford, Plessy v. Ferguson and Korematsu v. United States. ” Judge Neil Gorsuch dissenting in the 2019 case Gamble c. United States.

➤ “Perhaps the court is reluctant to address this issue because it would have to play with a 70-year-old precedent that is patently bogus. But if the Fathers the doctrine is so wrong that we cannot figure out how to master it, so the best answer is to say goodbye to it. There is precedent for this approach [including Brown v. Board of Education overruling Plessy v. Ferguson]. ” Justice Clarence Thomas dissenting in denying certiorari in 2021 case Jane Doe v. United States.

➤ “Stare decisis is neither an ‘inexorable order’ nor ‘a mechanical formula of adherence to the last decision.’ If so, segregation would be legal [see Plessy v. Ferguson], minimum wage laws would be unconstitutional and the government could wiretap common law suspects without first obtaining warrants. Chief Justice John Roberts Jr. agrees in 2010 case Citizens United v. Federal Election Commission.

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