Judicial Power & Civil Rights Reconsidered

Michael Klarman\u27s From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality is an important contribution to the scholarly literature on both the history of the civil rights struggle and judicial power more generally. Klarman argues that for much of the twentieth century, the Supreme Court was very reluctant to rule in favor of African American civil rights claimants, and had little impact when it did. Klarman is right to reject traditional accounts that greatly exaggerated the Supreme Court\u27s willingness and ability to protect minorities. However, he overstates his case. The Court\u27s views on the proper scope of African Americans\u27 rights periodically diverged from that of the political branches of government. The Justices\u27 relative insulation from political pressure; their membership in a different generational cohort than the median voter; the idiosyncrasies of presidential selection of Justices; and the Justices\u27 nationalist inclinations all help explain this result. Moreover, in at least three types of situations, judicial invalidation of Jim Crow legislation significantly aided African Americans: (1) when such legislation had solved collective action problems among racist whites; (2) when legislation had enabled white actors to externalize the costs of Jim Crow onto society as a whole; and (3) when laws lowered the overall costs of maintaining Jim Crow. This Review supports these conclusions by closely examining relevant Supreme Court decisions, especially Progressive Era cases and Brown v. Board of Education