Plessy v. Ferguson goes the other way

CaliGuy

Banned
Also, for some reason, Republican U.S. Presidents were very shitty at appointing pro-civil rights Justices during this time; indeed, I was thinking of this changing in this TL.
 
Would Brewer have actually voted in favor of Black rights in Plessy, though? After all, he abstained in Plessy in spite of the fact that he was not obliged to; plus, more importantly, his total record on Black civil rights cases on the U.S. Supreme Court is actually mediocre:

http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1578&context=facpub

See page 321 in the link above.

Also, for some reason, Republican U.S. Presidents were very shitty at appointing pro-civil rights Justices during this time; indeed, I was thinking of this changing in this TL.

In researching my old TL "The Seventh is Made of Phantoms" I came across the same problem. Basically the problem IMO is that, the kind of pro-civil rights Justices needed for this kind of change were not exactly bountiful during the reconstruction period and that as you push past the Grant administration it becomes more and more difficult to get them through the Senate. This probably has something to do with the massive unpopularity of Reconstruction during the period.

Brewer IMO would've ruled in Plessy's favour had the court and by extension the culture been a bit more hostile to the idea of segregation which I believe is one of the implications found in the conclusion of your article (.359)
 

CaliGuy

Banned
In researching my old TL "The Seventh is Made of Phantoms" I came across the same problem. Basically the problem IMO is that, the kind of pro-civil rights Justices needed for this kind of change were not exactly bountiful during the reconstruction period and that as you push past the Grant administration it becomes more and more difficult to get them through the Senate. This probably has something to do with the massive unpopularity of Reconstruction during the period.

Question--couldn't the Senate rules have been changed to change the filibuster requirements during this time?

Brewer IMO would've ruled in Plessy's favour had the court and by extension the culture been a bit more hostile to the idea of segregation which I believe is one of the implications found in the conclusion of your article (.359)

I have just looked at page 359 again here and it actually appears to lead to the opposite conclusion to yours:

"While Brewer declined to use his position of authority as a Justice of the United States Supreme Court on behalf of the civil rights of African-Americans, his overall views on race did not harden to the degree described by Woodward. In fact, if one looks only at the pronouncements Brewer made off the bench between 1890 and 1910, he comes across as a crusader for equal treatment of the black race at a time when educated Americans, in the North as well as the South, were becoming increasingly persuaded by scientific theories of racial inferiority."

In other words: Brewer appears to have been personally pro-civil rights but not pro-civil rights in a judicial sense. Indeed, think of someone today who supports legalizing incest (in terms of political feasibility) but is unwilling to actively push for it from a position of power.

Also, Justice Brewer authored this 1908 case which allowed separate-but-equal developments in higher education:

https://en.wikipedia.org/wiki/Berea_College_v._Kentucky

Indeed, why exactly would the author of Berea have ruled in Plessy's favor 12 years earlier?
 
Sorry for not making myself clear. I was thinking more along the lines of an different circumstances in an ATL in which the retreat of Northern Liberals from the race issue wasn't nearly as decisive or perhaps intensified over the latter half of the 19th century (I grant that will take a bigger POD than simply having Sherman win instead of Harrison!)

I think in such a scenario (again referring to one in which racial equality remains important to Northern Liberals) Brewer has enough pre-requisites to be swayed to a more pro-civil rights position.
 

CaliGuy

Banned
Sorry for not making myself clear. I was thinking more along the lines of an different circumstances in an ATL in which the retreat of Northern Liberals from the race issue wasn't nearly as decisive or perhaps intensified over the latter half of the 19th century (I grant that will take a bigger POD than simply having Sherman win instead of Harrison!)

I think in such a scenario (again referring to one in which racial equality remains important to Northern Liberals) Brewer has enough pre-requisites to be swayed to a more pro-civil rights position.
Frankly, this certainly makes sense; however, the U.S. Supreme Court appears to have become extremely weak on civil rights as early as 1883--indeed, Pace v. Alabama was decided unanimously!

Also, could a surviving President Garfield have reinvigorated the Republicans' push for civil rights for Blacks? Indeed, could he use some of the political capital from public goodwill as a result of his assassination attempt to try strengthening the Republicans' weak position in the South?
 
Frankly, this certainly makes sense; however, the U.S. Supreme Court appears to have become extremely weak on civil rights as early as 1883--indeed, Pace v. Alabama was decided unanimously!

Also, could a surviving President Garfield have reinvigorated the Republicans' push for civil rights for Blacks? Indeed, could he use some of the political capital from public goodwill as a result of his assassination attempt to try strengthening the Republicans' weak position in the South?

I mean really you should go back even further to United States v. Cruikshank in 1875-6. Though the vote was 5-4 the dissent was less than inspiring as it basically pointed out that the 14th Amendment was too vague to convict those arrested in connection with the Colfax Massacre. There just really wasn't the popular will to continue to impose Reconstruction on the South at any level.

Given the underlying cultural factors both in the North and South, I highly doubt that Garfield's survival would have reinvigorated the Republicans' push for civil rights for Blacks to the extent that Plessy v. Ferguson would go the other way (barring some very long lived Justices). Best case scenario IMHO is that Garfield is able to chip away at the emerging Jim Crow system. Though perhaps not major, small ripples have the potential to create larger waves down the line.

IMO a longer bloodier civil war might lead to a more Radical Reconstruction and lasting civil rights for Blacks.
 
Lets not forget that Plessey was 7/8 white, mudying these specific waters.

That said, I really dont think it will be as hard to implement as others do. It won't be so much about the feds forcing southern businesses to not discriminate... I doubt that mindset is remotely plausible in that century. The way such a ruling would be enforced is bu preventing southern states from forcing their business to discriminate.

The feds aren't going to waste their time in this era by going into saloons and train cars and theaters and telling them they have to allow blacks to sit with whites. They're going to go after the states that punish those business that don't segregate.

What this will ultimately mean is that, while such a ruling would still piss off plenty in the South, every time the Feds enforce it (and lets be honest, it will be intermittent, at best), they will be coming to the defense of some business that is being fined or therwise penalized by the local government. If its a big national concern, like a railroad, its likely to piss off the locals to some degree. On the other hand, if the Feds are defending some local business, they're coming to the defense of a member of whatever community is in question. There's a lot more nuance there.

I have to say, it actually sounds to me like it would help make the transition to full civil rights mich more gradual and smooth. Might not shorten the period much, but I think it would help.

Only problem is the majority was not exactly slim on this decision.

This.

As said, it tends to be forgotten that Plessy was 7/8th's white (an octoroon). Moreover, the brief his attorney's submitted to the Supreme Court placed a great deal of weight on the argument that Plessy was being denied the reputation of a white man, and that that reputation was his rightful property. My understanding is that it essentially argued Louisiana was unjustly classifying Plessy as a black man, and in so doing was depriving him of his right to property without due process.

It also tends to be forgotten that Plessy's case was arranged with the railroad in advance, and that the railroad cooperated in setting up Plessy's arrest by stationing a detective on the car Plessy intended to board, and arranging which station he would be taken off at. All of that was because the railroad wanted to escape regulation by Louisina's Separate Car Act becaue they felt it would require them to purchase more cars and operate less efficiently.

These two facts are important because they characterize what a successful ruling for Plessy would be. I tend to think the Court would not, and really could not, go further than preventing states from requiring businesses engage in segregation. Any plausible alternate ruling would permit states to incentivize segregation, and would absolutely not prevent businesses from engaging in segregation of their own accord. I tend to think this would really only affect large, interstate businesses - like the railroad that sponsored the case in the first place. Local businesses have nothing to loose and everything to gain by engaging in segregation. Additionally, the nature of Plessy's argument indicates to me that the Court would not hold that states could not define races, or legislate on that basis. It is more likely the Court would find fault with Louisiana's definition of race. What alternative they could substitute, if they even chose to do so, I can't say.

That's my two cents.
 
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