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Wednesday, September 5, 2018

Kavanaugh v. Wikipedia: Who is right on Plessy v. Ferguson?

Plessy v. Ferguson was one of the most racist decisions ever made by the United States Supreme Court. Wikipedia describes it this way:
Plessy v. Ferguson, 163 U.S. 537 (1896),[2] was a landmark decision of the U.S. Supreme Court issued in 1896. It upheld the constitutionality of racial segregation laws for public facilities as long as the segregated facilities were equal in quality – a doctrine that came to be known as "separate but equal".[3] This legitimized the many state laws re-establishing racial segregation that had been passed in the American South after the end of the Reconstruction Era (1865–1877). The decision was handed down by a vote of 7 to 1, with the majority opinion written by Justice Henry Billings Brown and the lone dissent written by Justice John Marshall Harlan.
In his Senate confirmation hearings on today, Judge Brett Kavanaugh said that Plessy v. Ferguson was completely overturned by Brown v. Board of Education in 1954. He spoke to it in response to a question from Senator Cornyn:

Cornyn: [4:34:20] "On occasion the Supreme Court has decided that it's just wrong and overruled those previous decisions. I'm thinking about Plessy v. Ferguson for example, which was a scar on our body politic, that said that separate, but equal educational facilities met the constitutional requirement of the fourteenth amendment. But, can you talk about the extraordinary circumstances under which the Supreme Court would revisit a precedent?"

Kavanaugh: "Well, Brown v. Board of Education, of course, overturned Plessy, and, ah, Plessy was wrong on the day it was decided. It was inconsistent with the text and meaning of the fourteenth amendment, which guaranteed equal protection..."

Then he went on to talk about another case. From his answer, it's not clear if he has really given a lot of thought to this landmark ruling. He borrowed that "Plessy was wrong on the day it was decided" line from the Joint Opinion of Justices O’Connor, Kennedy, and Souter in Planned Parenthood of Southeastern Pennsylvania v. Casey, in which they wrote “[W]e think Plessy was wrong the day it was decided.” And while this Supreme Court nominee was clear in his off-hand opinion that, of course, Plessy was overturned in 1954; Wikipedia is more nuanced. If I believe Wikipedia, the bottomline is that it has not been completely overturned [bold added by me]:
Plessy is widely regarded as one of the worst decisions in U.S. Supreme Court history.[4] Despite its infamy, the decision itself has never been explicitly overruled.[5] However, a series of subsequent decisions—beginning with Brown v. Board of Education in 1954, which held that Plessy's "separate but equal" doctrine is unconstitutional in the context of schools and educational facilities—have severely weakened it to the point that it is usually considered to have been de facto overruled.[1]
Cited by Wikipedia:
[5] The Plessy Case: A Legal-Historical Interpretation by Charles A. Lofgren
[1] Journal Article, Generality and Equality Frederick Schauer

So which legal opinion is correct?

If Wikipedia is right, and the task of overthrowing Plessy is one the courts have yet to complete, it would be a sorry thing to appoint a Justice that thinks it has already been handled.

So, it would seem that this would be a good time to have some clarity on this question, given the time we are living in, one in which white supremacy is trying for a come-back. Believe it or not, there are white nationalists in the Trump cabal that would like to bring separate but equal back. It is key to their vision of ethnostates. It would be good to hear more from Kavanaugh on this subject, given that he has been nominated by the leader of those trying to make white supremacy dominate again.

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