Judicial Power & Civil Rights Reconsidered

68 Pages Posted: 18 Nov 2004 Last revised: 16 Aug 2008

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School

Ilya Somin

George Mason University - Antonin Scalia Law School


Michael Klarman's 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's willingness and ability to protect minorities. However, he overstates his case. The Court's views on the proper scope of African Americans' rights periodically diverged from that of the political branches of government. The Justices' 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' 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 in their historical context, especially Progressive Era cases and Brown v. Board of Education.

Keywords: Constitutional law, civil rights, legal history

Suggested Citation

Bernstein, David Eliot and Somin, Ilya, Judicial Power & Civil Rights Reconsidered. Yale Law Journal, Vol. 114, No. 3, pp. 591-657, December 2004, George Mason Law & Economics Research Paper No. 04-51, Available at SSRN: https://ssrn.com/abstract=620781

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

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703-993-8089 (Phone)
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HOME PAGE: http://mason.gmu.edu/~dbernste

Ilya Somin

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8069 (Phone)
703-993-8124 (Fax)

HOME PAGE: http://sls.gmu.edu/ilya-somin/

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