Prologue
April 1896
At his spacious home in the quiet town of Mayville, nestled in the farthest corner of western New York State, Albion Tourgée looked at his co-counsel’s two-page letter with disbelief. “There is some chance that the case will be argued tomorrow,” read the message from Washington.
What? Tomorrow?
Tourgée glanced again at the date on the letter: April 1, 1896. Tomorrow?
There was no tomorrow. It was Friday, April 3. Tomorrow was now yesterday. If the oral arguments in the Supreme Court lawsuit known as Plessy v. Ferguson had taken place the day before, then Tourgée had missed perhaps the most important oration of his career, one he had spent more than three years preparing to give.
Impossible. Outrageous. Unforgivable.
Cold fury could be felt in every word of his hurriedly composed note to the Supreme Court clerk’s office—an icy, personal anger built upon three decades of disappointment with the North of his birth and its failure to erect a citadel of civil rights from the ashes of the Civil War. “I have been ready for the hearing for three months, waiting every day to know when it would probably be reached,” he thundered, “but have never heard a word from you.”
With a characteristic flush of hyperbole, he rushed on. “I represent an association of about 10,000 colored men of Louisiana who raised the money to prosecute these and other cases, and now by some inscrutable mishap they are deprived of the service they had secured.”
He was fifty- seven years old, with a glass eye to replace the one blinded in a boyhood gun accident. As perhaps the nation’s most famous white advocate for civil rights, he had lived much of his tumultuous life on the outside looking in, and he had a well- deserved reputation for not suffering fools easily.
The accent mark in his last name was a Tourgée invention, adopted in his mid- forties, reflecting a personality often characterized by emphasis and embroidery. He was most comfortable on a podium exhorting a crowd, or at his writing table crafting a novel or drafting his newspaper column, rather than socializing in the drawing rooms of New York or Washington. He had gone South after the war, seeking to cement the revolution. When he left after fifteen years of fighting with the established order, some had cheered. One newspaper, bidding him farewell, called him the most hated man in North Carolina. In white supremacist circles, the label might not have been an exaggeration.
His Supreme Court experience could be summed up in half a sentence: two minor cases, twenty- five years ago. He was unfamiliar with the court’s practice of notifying only the local counsel about the scheduling of a case. The “inscrutable mishap” turned out to be mostly his co- counsel’s fault. He had known for several days that Plessy had been assigned a place in the court’s queue for oral arguments, but he had failed to alert Tourgée right away.
Mystifying. Astonishing. Maddening.
Fortunately, as Tourgée soon learned from court clerk James McKenney’s courteous reply, the justices hadn’t reached as many cases as expected before adjourning for a week’s recess. Plessy was next in line. The probable date now: Monday, April 13, plenty of time for Tourgée to get there. The location: the Old Senate Chamber, the Supreme Court’s home since 1860. Plessy would not go forward without its architect in chief.
TOURGÉE HAD NURTURED the Plessy case with the care of a horticulturist tending a prized set of orchids. But his involvement was more chance than destiny.
Nearly five years earlier, in the summer of 1891, he had written a particularly acid newspaper column denouncing the new “separate car law” in Louisiana, which mandated “equal but separate accommodations for the white and colored passengers” traveling on trains in the state. His column had acted like a shot of adrenaline for a committee of prominent mixed- race Creoles and several black allies in New Orleans, which was already bent on mounting a legal challenge to the law. At the committee’s invitation, Tourgée had assumed command of the case, working with lawyers in New Orleans and later Washington. The committee’s leaders couldn’t believe their good fortune in having a man of Tourgée’s stature on their side. Even better, he had refused to take a fee for his service. For Tourgée, this was more than a case. This was the culmination of a three-decades-long crusade to build a society that paid more than lip service to equal rights.
On Friday, April 10, he boarded the train for Washington, with hours ahead of him to review his arguments. He had done more than anticipate this moment. He had planned for it, imagined it, played out the scene over and over in his mind’s eye, calibrating and recalibrating every detail. His fame drew attention to the case, but it also brought its own baggage. When it came time for his oral argument, the justices would not be looking at a lawyer with a legal claim. They would see a rebel with a cause, a man who had warned in his writings that the country should prepare for a race war if it did not address the wrongs visited every day on people of color.
As an accomplished orator, Tourgée thought he knew how to read an audience. He had studied the nine Supreme Court justices, looking for any advantage, any clue that would help him and his colleagues in constructing a winning argument. He had urged the New Orleans committee to find his ideal candidate for arrest, a man of mixed race who looked white, could pass for white, who could take a seat in a car reserved for whites and throw doubt on the ability of any train conductor to guess the passenger’s race by sight. The Louisiana law essentially required the railroad to decide the race of each passenger. What if the conductor couldn’t tell?
That scenario would create the most favorable circumstances for his argument. He intended to prove that the separate car law not only violated the Fourteenth Amendment’s guarantee of equal protection for everyone within a state’s jurisdiction, but that it was unenforceable as well. Tourgée wanted to do more than impress the justices with his logic. He wanted to open their eyes to the inherent contradictions of previous rulings. He wanted to show them the errors in the court’s interpretations of the three constitutional amendments enacted after the Civil War to ensure equality. He wanted a triumph.
THE ONLY SURE VOTE, in Tourgée’s estimation, was Justice John Marshall Harlan of Kentucky, a slave owner’s son and the inheritor of his family’s slaves. Despite that background, Harlan’s dissents in previous civil rights cases had been noteworthy for their plainspoken language about the dangers of discrimination and inequality. But Harlan was usually alone in his dissents. Was it possible for him to bring others along this time?
Seven of the other eight justices hailed from the North, including several New Englanders who had joined the court since its last major civil rights ruling in 1889. Was it too much to hope that newcomers Henry Billings Brown and his Yale classmate, David Brewer, might form the nucleus of a group more sympathetic to racial equality than their predecessors had been? Both had roots in western Massachusetts, where their families had raised them with an emphasis on tolerance. Both were Republican appointees, and the party still took some pride in its antislavery roots. Both had moved west as young lawyers, Brewer to the Kansas frontier, Brown to Michigan. Their previous writings suggested no resolute position on racial equality. Brown, in particular, had a reputation for an open mind and impartiality.
Tourgée needed more than their votes. He needed them to embrace his arguments. When the justices eventually met in private to discuss the case, he needed someone other than the dependable Harlan to become spokesmen for his cause. Only then would he have any hope of persuading the court’s Northerners that this case was different, that separate was not equal, could never be equal—at least not when a Southern legislature was deploying a law to promote the desires and interests of one race at the expense of another.
Taking the case to the Supreme Court was a risk, as Tourgée knew all too well. Defeat could mean an endorsement of separation that would be difficult to undo. “It is of the utmost consequence that we should not have a decision against us,” Tourgée had written in October 1893 to Louis A. Martinet, the committee’s most active leader and the editor of the New Orleans Crusader, a newspaper that had built a following in the city’s Creole and black neighborhoods.
Without Martinet, there likely would have been no case, no fundraising, no sustained protest of the legislature’s infernal vote to enshrine separation into Louisiana law. Martinet was unflagging. He griped to Tourgée that the committee had thrown all the work on his slight shoulders, but it was the good- natured complaint of an energetic campaigner drawing on a seemingly bottomless reservoir of anger and purpose. As a man of mixed race who could pass for white, and often did, Martinet did not feel the sting of separation as strongly as others in New Orleans. But he had no doubt about its evil effects. “To live always under this feeling of restraint is worse than living behind prison bars,” he wrote to Tourgée.
Over the course of the case, the two men had developed a strong personal relationship, exchanging lengthy, often anguished letters about the state of racial inequality in the country. Their similarities stood out more than their differences. Both were men of ego, inclined toward action, yet consumed by misgivings about their mission. Both felt, often, like outcasts. Both were impetuous. Both believed that separation mocked the Constitution’s guarantee of equal protection.
Perhaps most of all, both found a good fight hard to resist.
SUPREME COURT CASES often arise out of the ordinary friction of everyday life. Not Plessy. It had been a prearranged arrest, the second of two such test cases, both engineered by the New Orleans group that had adopted a name as straightforward as its cause: the Citizens’ Committee to Challenge the Constitutionality of the Separate Car Law, or the Comité des Citoyens in French. The railroads had agreed to participate in the ruse, eager to settle the constitutional question before spending a lot of money on extra cars. Which is how Homer Plessy ended up at the New Orleans Press Street depot on June 7, 1892. He was twenty- nine years old, married, and fair- skinned enough to cause confusion. In his neighborhood of Faubourg Tremé, a favorite of the French- speaking free people of color, les gens de couleur libres, he blended right in.
It was no accident that the Plessy case emerged from the mixed- race culture of New Orleans, a city unlike any other in the United States in 1890. The French- speaking Creoles felt particularly aggrieved by their loss of status after the Civil War. Many had wealth, education, and a strong motivation not to slip farther on the social scale. If the case had come from any other city, it’s unlikely that a man who looked white would have been sent to buy a ticket for the whites-only car.
But then, Plessy occupies a peculiar place in the American narrative on race. It’s safe to say that many people recognize the case as a famous one, and many can place it as the one that sanctioned the “separate but equal” doctrine. But ask about even the basic facts, and the likely reaction is a blank stare. They don’t know that the case is one steeped in contradictions, or that it arose from a very public discussion about race, or that there were plenty of advocates working in opposition to the forces of racial injustice.
Just like the people swept up in the case, the story behind Plessy is neither plain nor simple. It sprawls and snakes through almost a century of American history, beginning at the dawn of the railroad age in the North, germinating in the soil of slavery and the Civil War, sprouting in the turmoil and tension of Reconstruction, and then bursting forth at the end of the nineteenth century as separation took root in nearly every aspect of American life.
The ruling in Plessy drew little attention at the time, but its baneful effects lasted longer than any other civil rights decision in American history. It gave legal cover to an increasingly pernicious series of discriminatory laws in the first half of the twentieth century. Under the banner of keeping the races apart, much of white America stood silent as black Americans suffered beatings, assaults, and murders. Lynching, already a weapon of vengeance and vigilante justice in the years before the Plessy decision, became a signature tool for whites bent on domination and repression. This culture of violence flourished, primarily but not exclusively in the South, because some proponents of separation embraced the twisted notion that enforcing laws of racial separation had a higher priority than liberty, justice, fairness, or opportunity.
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 that can sometimes be foreseen but never guaranteed. Questions about racial equality confronted the country’s founders, who embedded their divisions into the Constitution in 1789. We grapple with those questions still, in every new dispute involving voting rights and immigration, affirmative action and school funding, criminal justice and capital punishment.
All Supreme Court stories have their own geography. Remarkable characters populate the landscape of this one: Tourgée of Ohio, Brown of New England, Harlan of Kentucky, Martinet of Louisiana, on separate paths to a shared destination, connected by time, culture, happenstance, and the unresolved struggle between an exhausted North and a bitter South.
Their actions and attitudes, their flaws and foibles—who they were, where they lived, what they said, why they said it, how their views evolved during a tumultuous half century of strife and conflict—serve as powerful reminders that history is made, not ordained.
© Steve Luxenberg, 2019
