We’re fewer than 24 hours away from seeing Carol Rose and Richard Brooks at a conference at the University of Arizona James E. Rogers College of Law, titled “Saving the Neighborhood,” after their new book. (Spaces still available! Register here.) I posted about the information law aspects of racial covenants here (cross-posted by Jane at Balkinization). Today I want to discuss briefly two additional aspects of the book that I found thought-provoking and counterintuitive: formalism, and slow victories.
On formalism: Rose and Brooks argue that relying on real property law as a mechanism for enforcing racial segregation in housing was risky. It was a gamble because even Southern courts – no friends of integration, as they would show in the full-bore resistance to ending school segregation and to prohibiting Jim Crow laws – were skeptical of the devices. Particularly in the pre-Lochner era, the courts evinced a formalistic understanding of property, and of the need (perhaps even of a constitutional dimension) to prevent governmental interference with property rights. The whole point of racial covenants was to operate as a restraint upon alienation – a restraint that might take considerable effort to evade or remove. The ability to dispose of one’s property as one sees fit is at the heart of classical property theory, checked by policing against externalities (such as pollution) by courts. Courts turned down efforts to limit integration through nuisance lawsuits (via formal conceptions of “use,” which did not include mere status of the purchaser) and through zoning. When homeowners turned next to covenants, they did not have certainty that those deed restrictions would be enforced if challenged.
I find fascinating the clash of goals that was taking place in front of the courts adjudicating nuisance, zoning, and covenant suits. The homeowners or municipalities wanted to enforce segregation against opportunists and defectors (not to mention minority buyers). Doubtless the judges hearing the cases were sympathetic. But they had a different normative ordering: segregation, while certainly appealing, had to be weighed against jurists’ commitment to particular views of property and of constitutional rights. And at least in the case of zoning and nuisance, segregation yielded: protecting a particular, formal conception of property loomed as the more important consideration. For me, this usefully complicated my perception of the court system during this period. My mental model was of the Alabama Supreme Court during the civil rights era – say, during the back-and-forth with the U.S. Supreme Court in NAACP v. Alabama. Judges’ motives and goals encompassed far more than simply defending segregation against all comers, and there were times when countervailing values – such as restraint upon governmental intrusion, or a particular model of real property – prevailed over race-based goals. That I found surprising.
On slow victories: the NAACP, despite a string of defeats, continued to attack racial covenants on the theory that their enforcement constituted state action. This strategy flew in the teeth of the prevailing legal wisdom, which was that these arrangements constituted classic private law, carrying no constitutional implications. In Shelley v. Kraemer, the NAACP’s theory was vindicated – a triumph for equal protection, for integration, and for legal realism, all at once. But it struck me how counterintuitive and edgy this strategy was. The NAACP risked accumulating a string of unfavorable precedents, perhaps even capped by a Supreme Court decision that was, along the lines of Plessy v. Ferguson or Bowers v. Hardwick, a seminal defeat. My own tendencies are far more conservative: you have to pick your spots, and once a theory seems like a consistent loser, you abandon it. The NAACP believed in their vision, as both a legal and moral imperative, and they were proved right. Sometimes you have to lose for a while to win. This seems to have modern resonance: the litigation strategy for marriage equality confronted a string of bad precedent and unfavorable politics, and I was deeply worried when the Supreme Court granted cert in both Windsor and Perry. There, too, the plaintiffs proved that the moral arc of the universe is sometimes shorter than we think – and still bends towards justice.
“Saving the Neighborhood” forces us to re-examine long-held assumptions about racial covenants, housing segregation, clashes of norms over race, and the risks of bold litigation strategies. For that, I’m indebted to Carol Rose and Richard Brooks.