An Interview with James W. Eli, Jr. Part 2 Video

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An Interview with James W. Eli, Jr. Part 2

The chief justice has no more voting strength than any other members of the court. It’s not uncommon for the chief justice to dissent. John Marshal rarely dissented but he dominated the court to an inducible degree. Almost none of the chief justice has ever been able to achieve that result subsequently. The chief justice is of course important in several respects. The chief justice has significant administrative responsibilities. The chief justice is kind of a spokesman for the court if you will to the national lower court. The chief justice also assigns opinions to be written as soon as chief justice is in the majority so the power of assignment is also significant. You can influence how opinions are tailored by to whom you assigned that to be. But there's no magic. Chief Justice Chase dissents in the Slaughterhouse cases. He basically agrees with the opinions of Justice Hill and Bradley that I described earlier, he simply didn’t care it today. These are two jury selection cases. They do suggest, I think, both the Supreme Courts commitment in forcing equal rights but also the limitations that they saw in the latter part of the 19th century. These were to be frank being one of crude attempts of discrimination. For passengers that we are saying basically, Georgia would be composed of White. Well, that went directly, contrary to the equal right of provisions of the Fourteenth Amendment, right? So as a result that’s a lot of other clumsy case, that’s not saying we’ll have to play separate but equal facilities. That’s just saying there’d be no rule for Black at all lingerie’s. Well, the Supreme Court I think that surprisingly extract that down. People have never come to this, they never accepted a statute who just said there will be no Black boys or there will be no Black juries. That was the kind of things they would say the 14th Amendment which is going to prevent. The problem was all types of sub-perfusions could appear and there the Supreme Court was much more iridescent to examine into the actual workings of the jury system or the working of southern system. So you had to make it appear at all times as if these were neutral principles being applied. But the virus in those cases was they were too blatant and the Supreme Court instructs both of them down. Now the limits, later on, the Supreme Court also said the mere fact that no Black juries were called in a particular case. That’s not evidence of discrimination. You’re not entitled in other words to have a Black or White jurors and some number on a jury so on today for that matter. So the fact is that well, if it’s going to be a blatant form of discrimination in jury selection that’s out, more subtle indirect means of shading a jury composition might pass mostly. I don’t think that you have a head which you might call a new evolution agenda at all. We talked maybe more about that when we get to Plessy. I think they felt that this is what the law demanded. If the Fourteenth Amendment didn’t prevent the state from saying just White jurors can be called they didn’t have any meaning at all. So in other words, at some point you have to say look at this, it just doesn’t square by the constitution as we see it. But I don’t think the Supreme Court in this time period, this was the 1870’s, 1880’s, I don’t think the Supreme Court has what you could call a thorough going equal rights agenda at all. I think that by this time the fires of reconstruction have began to cool. Now, some individuals they still have strong commitments but I think neither society at large nor the members of the Supreme Court had strong feelings on this subject. I think number one, the issue presented to them in Plessy is very different. In Plessy you had a Louisiana State Law at issue. The state law mandated that there must be separate facilities for Black and White passenger and passenger trains. So you’re more being concerning yourself with the jury selection process, so it’s a very different issue, the above order of the court. It didn’t say that trains in Louisiana could carry Black passengers they just said there should be separated accommodation provided for Black passenger. So we have a different issue. Also by the time Plessy is decided which is the 1890’s, dominant thinking in the United States has moved very far away from equal rights. Public opinion has become convinced that reconstruction was a mistake. Scientific racism was widely spouted at the leading universities in the country. There was very little imputes or interest in racial minorities, be it Blacks, Indians or whoever. So the fact is that there was almost no political support for big equal rights agenda. The president and the congress shall no interest whatever in equal rights agenda. They in fact made it very clear, they we’re not going to be put in the position of coercing the south. And to top it all of, by the 1890’s one of the highest goal is to becomes sectional reconciliation. People are trying out to put the bitterness of the civil war behind them and they don’t want to take any moves that are going to store up sectional animosity. Now, we went all this current together, what you’ve got is a kind of a political mix which just not blends well for an aggressive equal rights program. Now, against that backdrop the Plessy case comes to the Supreme Court. Plessy involves a case as you know they have separate effort mandated railroad cars. All the state is doing the same thing, segregated facilities began to appear in their number of their origin with the American life, mostly in south and in the so called boarder state to that point in time. The Supreme Court, looking incidentally at some earlier school cases decided in places like Massachusetts. The Supreme Court comes to the conclusion that look, if the state legislatures think that separation is the best way to preserve racial harmony we should let them, we should defer to their judgment. And as a result, so long as we see that there are equal facilities being offered there is no reason for us and oppose in this case. Incidentally, interestingly enough, now the phrase separate but equal never appears in Plessy. It did appear in Louisiana statute which was an issue but the court never adopts that, that phrase. The phrase was that’s lots of fair shorthand summary of the decision. But that is in fact that phrase never appears in the decision. In short, I think most careful students of Plessy even though they might not like this conclusion would agree that Plessy represented the public opinion of the day and came pretty close to representing. It leads to scientific opinion today which was that we have to have a lot of area here for racial separation. I don’t know in terms of the outcome of the case that that fact would be sooner will begin. But I do think it’s a very interesting fact to wrestle with because it highlights some other concerns. Number one, it highlights the problem that railroad companies would have in assigning passengers to cars unless you're a various student conductor you might miss somebody who has such a small amount of Black ancestor, right, and sit that person in the White car, yet incidentally if the conductor made a mistake that’s made him an offense. The conductor and the railroad company can be prosecuted with the state law for making a mistake which may help explain incidentally one of the reasons why railroads were so unenthusiastic about this case is, about these laws. It has been suggested, I can't demonstrate this for certainty, been suggested that Plessy may have in fact been working with railroad companies. They were not heart broken, they have a challenge at the Louisiana law. They might have like to see that Louisiana law struck down. But the Supreme Court obviously went in the other direction on that. But I think it’s a very interesting points, I think it highlights some of the deep reservations of railroad companies had about this kinds of laws and also of course, it highlights to our perspective how completely invidious they are because they may have to define who’s and what race, correct. Now, the whole concept of race in itself could be somewhat contested but in any event they think that a busy railroads conductor there was a lot of other thing on his plate that's going to be able to make these kind of decision is just a wild dream.

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The chief justice has no more voting strength than any other members of the court. It’s not uncommon for the chief justice to dissent. John Marshal rarely dissented but he dominated the court to an inducible degree. Almost none of the chief justice has ever been able to achieve that result subsequently. The chief justice is of course important in several respects. The chief justice has significant administrative responsibilities.

The chief justice is kind of a spokesman for the court if you will to the national lower court. The chief justice also assigns opinions to be written as soon as chief justice is in the majority so the power of assignment is also significant. You can influence how opinions are tailored by to whom you assigned that to be. But there's no magic. Chief Justice Chase dissents in the Slaughterhouse cases. He basically agrees with the opinions of Justice Hill and Bradley that I described earlier, he simply didn’t care it today.

These are two jury selection cases. They do suggest, I think, both the Supreme Courts commitment in forcing equal rights but also the limitations that they saw in the latter part of the 19th century. These were to be frank being one of crude attempts of discrimination. For passengers that we are saying basically, Georgia would be composed of White. Well, that went directly, contrary to the equal right of provisions of the Fourteenth Amendment, right?

So as a result that’s a lot of other clumsy case, that’s not saying we’ll have to play separate but equal facilities. That’s just saying there’d be no rule for Black at all lingerie’s. Well, the Supreme Court I think that surprisingly extract that down. People have never come to this, they never accepted a statute who just said there will be no Black boys or there will be no Black juries. That was the kind of things they would say the 14th Amendment which is going to prevent.

The problem was all types of sub-perfusions could appear and there the Supreme Court was much more iridescent to examine into the actual workings of the jury system or the working of southern system. So you had to make it appear at all times as if these were neutral principles being applied. But the virus in those cases was they were too blatant and the Supreme Court instructs both of them down.

Now the limits, later on, the Supreme Court also said the mere fact that no Black juries were called in a particular case. That’s not evidence of discrimination. You’re not entitled in other words to have a Black or White jurors and some number on a jury so on today for that matter. So the fact is that well, if it’s going to be a blatant form of discrimination in jury selection that’s out, more subtle indirect means of shading a jury composition might pass mostly.

I don’t think that you have a head which you might call a new evolution agenda at all. We talked maybe more about that when we get to Plessy. I think they felt that this is what the law demanded. If the Fourteenth Amendment didn’t prevent the state from saying just White jurors can be called they didn’t have any meaning at all. So in other words, at some point you have to say look at this, it just doesn’t square by the constitution as we see it. But I don’t think the Supreme Court in this time period, this was the 1870’s, 1880’s, I don’t think the Supreme Court has what you could call a thorough going equal rights agenda at all.

I think that by this time the fires of reconstruction have began to cool. Now, some individuals they still have strong commitments but I think neither society at large nor the members of the Supreme Court had strong feelings on this subject.

I think number one, the issue presented to them in Plessy is very different. In Plessy you had a Louisiana State Law at issue. The state law mandated that there must be separate facilities for Black and White passenger and passenger trains. So you’re more being concerning yourself with the jury selection process, so it’s a very different issue, the above order of the court. It didn’t say that trains in Louisiana could carry Black passengers they just said there should be separated accommodation provided for Black passenger.

So we have a different issue. Also by the time Plessy is decided which is the 1890’s, dominant thinking in the United States has moved very far away from equal rights. Public opinion has become convinced that reconstruction was a mistake. Scientific racism was widely spouted at the leading universities in the country. There was very little imputes or interest in racial minorities, be it Blacks, Indians or whoever.

So the fact is that there was almost no political support for big equal rights agenda. The president and the congress shall no interest whatever in equal rights agenda. They in fact made it very clear, they we’re not going to be put in the position of coercing the south. And to top it all of, by the 1890’s one of the highest goal is to becomes sectional reconciliation. People are trying out to put the bitterness of the civil war behind them and they don’t want to take any moves that are going to store up sectional animosity.

Now, we went all this current together, what you’ve got is a kind of a political mix which just not blends well for an aggressive equal rights program. Now, against that backdrop the Plessy case comes to the Supreme Court. Plessy involves a case as you know they have separate effort mandated railroad cars. All the state is doing the same thing, segregated facilities began to appear in their number of their origin with the American life, mostly in south and in the so called boarder state to that point in time.

The Supreme Court, looking incidentally at some earlier school cases decided in places like Massachusetts. The Supreme Court comes to the conclusion that look, if the state legislatures think that separation is the best way to preserve racial harmony we should let them, we should defer to their judgment. And as a result, so long as we see that there are equal facilities being offered there is no reason for us and oppose in this case. Incidentally, interestingly enough, now the phrase separate but equal never appears in Plessy. It did appear in Louisiana statute which was an issue but the court never adopts that, that phrase. The phrase was that’s lots of fair shorthand summary of the decision. But that is in fact that phrase never appears in the decision.

In short, I think most careful students of Plessy even though they might not like this conclusion would agree that Plessy represented the public opinion of the day and came pretty close to representing. It leads to scientific opinion today which was that we have to have a lot of area here for racial separation.

I don’t know in terms of the outcome of the case that that fact would be sooner will begin. But I do think it’s a very interesting fact to wrestle with because it highlights some other concerns. Number one, it highlights the problem that railroad companies would have in assigning passengers to cars unless you're a various student conductor you might miss somebody who has such a small amount of Black ancestor, right, and sit that person in the White car, yet incidentally if the conductor made a mistake that’s made him an offense. The conductor and the railroad company can be prosecuted with the state law for making a mistake which may help explain incidentally one of the reasons why railroads were so unenthusiastic about this case is, about these laws.

It has been suggested, I can't demonstrate this for certainty, been suggested that Plessy may have in fact been working with railroad companies. They were not heart broken, they have a challenge at the Louisiana law. They might have like to see that Louisiana law struck down. But the Supreme Court obviously went in the other direction on that. But I think it’s a very interesting points, I think it highlights some of the deep reservations of railroad companies had about this kinds of laws and also of course, it highlights to our perspective how completely invidious they are because they may have to define who’s and what race, correct. Now, the whole concept of race in itself could be somewhat contested but in any event they think that a busy railroads conductor there was a lot of other thing on his plate that's going to be able to make these kind of decision is just a wild dream.

Transcription by: Scribe4you Transcription Services