Today in Supreme Court History: November 5, 1917

11/5/1917: Buchanan v. Warley decided.

The White Court (1916-1921)

Comments

[JoeFromtheBronx]

The case presented does not deal with an attempt to prohibit the amalgamation of the races. The right which the ordinance annulled was the civil right of a white man to dispose of his property if he saw fit to do so to a person of color and of a colored person to make such disposition to a white person.

It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution.

[F.D. Wolf]

In Buchanan v. Warley, a unanimous Court struck down a municipal ordinance prohibiting blacks from buying property in majority-white neighborhoods (as well as prohibiting whites from buying property in majority-black neighborhoods.) The Court did so on Lochner-esque “liberty of contract” grounds. The facts suggest the case was completely contrived by the parties for the explicit purpose of obtaining judicial review. I suspect this was an early attempt to overturn Plessy v. Ferguson, which had been decided 21 years earlier. The Court distinguished Plessy by noting that while Plessy had had to ride in a separate rail car, his right to transportation had not been completely denied.

Justice Holmes, who abhorred the idea of substantive due process, drafted a dissent, which he ultimately withdrew, probably because he could not find another justice to join it rather than because he changed his mind. I ran a web search for information on Holmes’ draft opinion, and you might imagine my surprise when near the top of the list was a link to a website called joshblackman.com, which had the text of Holmes’ draft and his handwritten edits.

https://joshblackman.com/blog/2017/07/18/justice-holmess-draft-dissent-in-buchanan-v-warley/

[wvattorney13]

The Court's analysis leaves much to be desired as far as its attempt to distinguish this case from Plessy. Plessy could have been characterized as the right of a white man to dispose of his property---the limited license of a ticket in a particular railroad car---as he saw fit. The Court dismissed this with:

"But, in view of the rights secured by the Fourteenth Amendment to the Federal Constitution, such legislation must have its limitations, and cannot be sustained where the exercise of authority exceeds the restraints of the Constitution. We think these limitations are exceeded in laws and ordinances of the character now before us." and then later:

"We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the State, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law. That being the case, the ordinance cannot stand. "

There is no attempt to define the contours of these "limitations" and what features one is to look towards to determine their permissible scope.

[albexulpoer23]

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