The Marble Palace Blog: 'Plessy' and Precedent

Thank you 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’ve covered the Supreme Court since 1979 and for ALM since 2000. I semiretired in 2019, but I am still fascinated by the high court. I’ll welcome any tips or suggestions for topics to write about. You can reach me at [email protected].

In the “better-late-than-never” category, Louisiana Gov. 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 whites-only railroad car, thereby violating Louisiana’s “Separate Car Act.” He took his case to the U.S. Supreme Court, ending in Plessy v. Ferguson, a “separate but equal” decision in favor of Louisiana that besmirched the high court’s reputation for decades.

“The stroke of my pen on this pardon, while momentous, it doesn’t erase generations of pain and discrimination. We can all acknowledge we have a long ways to go,” Edwards said. “I am beyond grateful that I have a small part to play in ensuring that Homer Plessy’s legacy will be entirely defined by the rightness of his cause and undefiled by an unjust criminal conviction.”

Plessy’s legacy lives on, not only as a symbol fighting segregation, but as someone whose name still redounds at the current Supreme Court. An online search of Supreme Court opinions, journals and argument transcripts found Plessy’s name has been cited 34 times since 2000. Most of the citations involve when and whether Supreme Court precedents should be overturned, as Plessy v. Ferguson was in Brown v. Board of Education in 1954.

Steve Luxenberg, author of “Separate,” the definitive book about Plessy v. Ferguson, wrote, “The Plessy case underscores a central fact about the Supreme Court: Its decisions cannot be viewed in isolation. They follow a string of earlier rulings, and they precede a fresh set of issues.”

As recently as Dec. 1, Plessy’s name was invoked by the Supreme Court. When the justices grappled with the abortion case Dobbs v. Jackson Women’s Health Organization, several justices pointed to the Plessy decision as one that was “egregious” enough to be overturned. Overturning precedents such as Roe v. Wade and Planned Parenthood v. Casey are at stake in the case.

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

➤ “A lot of the colloquy you’ve had with all of us has been about the benefits of stare decisis, which I don’t think anyone disputes, and, of course, no one can dispute because it’s part of our stare decisis doctrine that it’s not an inexorable command and that there are some circumstances in which overruling is possible. You know, we have Plessy, Brown. We have Bowers v. Hardwick to Lawrence [v. Texas].” — Justice Amy Coney Barrett during the Dobbs oral argument in December 2021.

➤ “My view of the Constitution is Justice [John Marshall] Harlan’s [dissenting] view in Plessy: ‘Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.’” Concurrence by Justice Clarence Thomas in the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1.

➤ “Stare decisis has many virtues, but when it comes to enforcing the Constitution, this court must take (and always has taken) special care in the doctrine’s application. … Indeed, blind obedience to stare decisis would leave this court still abiding grotesque errors like Dred Scott v. Sandford, Plessy v. Ferguson and Korematsu v. United States.” Justice Neil Gorsuch in dissent in the 2019 case Gamble v. United States.

➤ “Perhaps the court is hesitant to take up this issue at all because it would require fiddling with a 70-year-old precedent that is demonstrably wrong. But if the Feres doctrine is so wrong that we cannot figure out how to rein it in, then the better answer is to bid it farewell. There is precedent for that approach [including Brown v. Board of Education overruling Plessy v. Ferguson].” Justice Clarence Thomas dissenting in denying certiorari in the 2021 case Jane Doe v. United States.

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