Vol. 14 No. 7 (July 2004), pp.507-512

FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY, by Michael J. Klarman. New York: Oxford University Press, 2004.  672 pp.  Cloth $35.00 / £20.99.  ISBN: 0-19-512903-2.

Reviewed by Michelle D. Deardorff, Department of Political Science, Jackson State University. Email: michelle.d.deardorff@jsums.edu

Unlike so many works of legal history, Michael Klarman’s excellent book, FROM JIM CROW TO CIVIL RIGHTS, does not simply convey a chronological narrative of the constitutional struggle for racial equality.  Instead, this book is organized around three carefully-framed questions: “What factors explain the dramatic changes in racial attitudes and practices between 1900 and 1950? What factors explain judicial rulings such as PLESSY and BROWN? How much did such Court decisions influence the larger world of race relations” (p.4)?  In this work, he seeks to discover why the Court ruled the way it did and determine how successful the implementation of these decisions were in providing racial equality, particularly for African Americans. Klarman answers these questions through a careful and systematic reading of the extensive secondary literature of African-American legal history. His bibliography alone is valuable; it is extensive and incorporates both a cutting edge historiography of civil rights and the classics of the field. In fact, the comprehensive nature of the bibliography is such that his exclusion of David Oshinsky’s WORSE THAN SLAVERY is noticeable.

The questions he has framed are extremely relevant to the judicial politics literature. Unlike many legal historians, Klarman considers this research and apparently bases much of his analysis on the work of Epstein and Koblyka and the new institutionalists. While such works are not explicitly cited in the text, Klarman includes in his extensive bibliography THE SUPREME COURT AND LEGAL CHANGE and Clayton and Gillman’s SUPREME COURT DECISION MAKING: NEW INSTITUTIONALIST APPROACHES. While many other prominent political scientists’ work are referenced in his bibliography (e.g., Murphy, ELEMENTS OF JUDICIAL STRATEGY), it seems clear that Klarman’s theoretical foundation is rooted in the analysis of the new institutionalists. These choices are logical for a legal historian who focuses most carefully on the decision-making of the Supreme Court and the specific cases coming before it. He bases his analysis on a hybrid qualitative model of judicial decision-making, combining legal and political factors. He describes his model in the following manner:

A legal axis, which consists of sources such as text, original understanding, and precedent, exists along a continuum that ranges from determinacy to indeterminacy. . . . A political axis, which consists of factors such as the personal values of judges, the broader social and political context of the times, [*508] and the external political pressure, exists along a continuum that ranges from very strong preferences to relatively weak ones. . . . When the law is clear, judges will generally follow it, unless they have very strong personal preferences to the contrary.  When the law is indeterminate, judges have little choice but to make decisions based on political factors. Moreover, different judges accord different weights to these two axes and some judges may deem a particular factor in decision making to be legal, while others will regard that same factor as political. Thus, different judges, even when confronted with the same legal sources and holding the same personal preferences, might reach different legal interpretations because they prioritize the legal and political axes differently (p.5).

Although this is a very rudimentary model, unlike many legal histories, Klarman does not merely describe what happens; he attempts to answer the “why.”  His examination of the implementation of Supreme Court decisions, however, is not grounded in the judicial politics literature—not even superficially. Here he notes that some Court decisions were more efficacious than others, arguing that  


[b]y examining which Court rulings mattered and why, we can identify the social and political conditions that influence efficacy—factors such as the intensity of opponents’ resistance, the capacity of the beneficiaries of Court decisions to capitalize on them, the ease with which particular rulings are evaded, the availability of sanctions against those who violate rights, the relative attractiveness of particular rights-holders, and the availability of lawyers to press claims (p.5).

Unlike his analysis of judicial decision-making, Klarman does not really reference any of the implementation and impact literature, outside of Rosenberg’s classic THE HOLLOW HOPE.  FROM JIM CROW TO CIVIL RIGHTS could be strengthened by an examination of such research as Johnson and Canon’s JUDICIAL POLITICS: IMPLEMENTATION AND IMPACT.  But Klarman makes his perspective clear when he states, “We have no way of precisely measuring the impact, direct or indirect, of Court decisions. However, although this is not science, something useful can still be said on the subject” (p.545).

The book is organized chronologically and examines the evolution of Supreme Court decision-making beginning with the PLESSY decision. Each chapter initially explores the historical, social, and legal contexts of the period and follows with an exploration of the prominent questions before the Supreme Court. The author typically concludes with an examination of the “consequences” resulting from Supreme Court decision-making. In Chapter One, “The PLESSY Era,” Klarman argues that there was little legal guidance provided to the Court regarding the meaning and scope of the Fourteenth Amendment. He determines that, as a consequence, political factors—including social norms and the personal preferences of justices—are the determinative factors in decision-making. After an examination of the prominent Supreme Court decisions of the day, he finds that Justices could not discover sufficient legal grounds to move them beyond their shared societal values. “[I]n the absence of clear law, the justices naturally followed their [*509] personal preferences and the broader social mores, which led them to sustain segregation, disfranchisement, all-white juries, and unequal educational funding” (p.59). He also believes that even if the justices were inclined to provide a broader definition of the Fourteenth and Fifteenth Amendments, it would not have prevented an expansion of de jure segregation. Klarman decides that Jim Crow laws were not the source of white supremacy, but merely a descriptor of it. “Entrenched social mores, reinforced by economic power and the threat and reality of physical violence, were primarily responsible for bolstering the South’s racial hierarchy” (p.60).

Chapter Two, “The Progressive Era,” contends that the Progressive era was more oppressive for African Americans than the PLESSY period, and although Supreme Court decisions of this era appeared to be civil rights victories, they were easily circumvented and made irrelevant during implementation. The increase in lynchings throughout the country is simply one measurement of this period now identified as the nadir of Black life in post-Civil War America; racist rhetoric expanded, and little hope for change existed. After examining Court decisions in voting, peonage, transportation, and residential segregation, Klarman finds legally-simple decisions that demonstrate a possible change in the justices’ racial attitudes. He notes that “[i]n three of the four sets of Progressive Era race cases, it could be argued that the Court should have dismissed the suits without even confronting the merits; instead the justices ignored procedural objections and rendered civil rights victories. Their willingness to stretch to reach the merits may reveal a slight shift in their racial predilections” (p.83). His findings regarding the consequences of these decisions are the most interesting in the chapter.  He notes that litigation, not requiring mass participation, can be a means of galvanizing “civil rights consciousness” in a politically-repressive environment.  Klarman is careful to recognize the potential countervailing impacts of litigation: if unsuccessful, it could potentially legitimize injustice—if it is validated by a court it could convey legitimacy to the challenged practice—and if successful, a victory could persuade protestors to focus on litigation as the sole tactic. This can also be dangerous because prior doctrines constrain courts, and litigation is ineffective unless the rulings are enforced.  As Klarman surmises:

At a time when white southerners could get away with lynching blacks, disenfranchising them, segregating them, and coercing their labor, the Court proved a barrier to schemes that came too close to formal constitutional nullification. Yet because the justices challenged only the form, not the substance, of southern racial practices, nothing significant changed for blacks (p.96).

The next chapter, “The Interwar Period,” examines cases emerging from northern migration, specifically presenting issues of procedural protections in criminal cases, white primaries and poll taxes, residential segregation and racial covenants, and segregation in primary and graduate schools. Klarman finds these decisions to be a “mixed bag:”

Several decisions made new law in protecting black rights. Yet the advances were limited. The justices were willing to intervene against the worst abuses of Jim Crow, such as the willingness to execute [*510] innocent blacks who were convicted on the basis of tortured confessions in farcical trials. They were less inclined to challenge the more routine but fundamental aspects of white supremacy, such as segregation and disfranchisement, which emerged from this period mostly unscathed (p.99).

As Klarman recognizes (p.164), during this period of violence, African Americans had only two effective forms of protest—migration and litigation. While litigation did not change the realities of white supremacy, there is evidence that it was successful in “convincing blacks that the racial status quo was malleable, educating them about their rights, providing focal points for organizing protest, and instructing oblivious northern whites about the egregiousness of Jim Crow conditions” (p.163). Regardless, the justices were relatively connected with the pace of extralegal change; as racial attitudes were changing, so were those of the justices.

In “World War II Era: Context and Cases,” Klarman identifies the parallels between the significant gains for civil rights in Supreme Court litigation and the social and political factors that were “highly conducive to racial reform. World War II was a watershed event in the history of American race relations. Several factors [were] connected with the war—its democratic ideology, the civil rights consciousness it fostered among blacks, the unprecedented political and economic opportunities its created for blacks, and the Cold War imperative for racial change that followed” (173).

After examining cases regarding voting, higher education, residential segregation, transportation, criminal procedure, and peonage, in Chapter Five, “World War II Era: Consequences,” Klarman determines that the “Court’s race decisions of this era underwent the same extraordinary transformation as did society’s racial attitudes and practices” (p.289).  The question that remained by 1950 was how would white southerners respond to explicit challenges to segregation.

Chapter Six is entitled “School Desegregation.” Without replicating the histories so carefully developed by Mark Tushnet (1987), Richard Kluger (1976), and others, Klarman builds on this well-developed historiography. He believes that  “[a]lthough the success of the civil rights movement probably explains much of the justices’ more aggressive posture on desegregation in the 1960s, they may also have simply become fed up with the intransigence and disingenuousness of southern whites . . . [M]assive resistance may have come back to haunt white southerners (p.343).

This argument connects to his analysis in the final substantive chapter, “BROWN and the Civil Rights Movement.” In this chapter, Klarman asks how much school desegregation did BROWN produce? He effectively argues that, without BROWN, southerners would not have desegregated schools on their own—Whites were more resistant to school desegregation than other equality issues, and Blacks were more interested in improving education, reducing brutality, and gaining access to better jobs. However, “before BROWN focused attention on school desegregation, southern politics was generally controlled by moderates, who downplayed race while [*511] accommodating gradual racial change. BROWN turned that political world upside down” (p.389). He supports his analysis with three reasons: 1) BROWN was harder to ignore than other racial changes; 2) “BROWN represented federal intervention in southern race relations” (p.391); and 3) BROWN required that racial change take place in a different order.  All of these factors generated greater white resistance than earlier changes, encouraging whites to take increasingly extreme positions, which resulted in public displays of violence.  “Only the violence that resulted from BROWN’s radicalization of southern politics enabled transformative racial change to occur as rapidly as it did” (p.442).

Klarman concludes that this history from PLESSY to BROWN demonstrates his contention that all “judicial decisions are products of the intersections between the legal and political axes. When the legal sources are relatively determinate, the justices tend to adhere to them, unless the political preferences to the contrary are very strong . . . . When their preferences are strong, the justices may reject even relatively determinate law, because they are unable to tolerate the result it indicates” (pp.446-447).  He also finds that during the time period he examined, not a single Supreme Court decision clearly challenged national public opinion. Although BROWN was the most controversial, Klarman argues polls demonstrate that about half the country supported it from its inception. Rights can therefore be more easily circumvented when discretion is granted at the local level, where constitutional challenges to equality may be the least obvious and the most intertwined with issues of federalism. For Klarman, the lesson is one of the limitations of the law—“[c]onstitutional litigation can only redress those problems that are grounded in law” (p.461). Combining this factor with the close connection of justices to their own social and political contexts, Klarman concludes that Supreme Court decisions “cannot fundamentally transform a nation” (p.468), reinforcing Rosenberg’s thesis of the limited power of the judiciary to fulfill the promise of the Constitution.


Canon, Bradley C., and Charles A. Johnson. 1998. JUDICIAL POLICIES: IMPLEMENTATION AND IMPACT (2nd Ed.). Washington, D.C.: Congressional Quarterly Press, Inc.

Clayton, Cornell W., and Howard Gillman. 1999. SUPREME COURT DECISION MAKING: NEW INSTITUTIONALIST APPROACHES. Chicago: University of Chicago Press.

Epstein, Lee, and Joseph F. Kobylka. 1992. THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY. Chapel Hill: University of North Carolina Press.

Kluger, Richard. 1976. SIMPLE JUSTICE: THE HISTORY OF Brown v. Board of Education AND BLACK AMERICA. New York: Knopf.

Murphy, Walter F. 1964. ELEMENTS OF JUDICIAL STRATEGY. Chicago: University of Chicago Press. [*512]


Rosenberg, Gerald N. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago Press.

Tushnet, Mark V. 1987.  THE NAACP’S LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950. Chapel Hill: University of North Carolina Press.


BROWN v. BOARD OF EDUCATION 347 U.S. 483 (1954).

PLESSY v. FERGUSON 163 U.S. 537 (1896).


Copyright 2004 by the author, Michelle D. Deardorff.