The Law and Culture-Shift: Race and theWarren Court Legacy

When we believe it, we'll see it.Saul Alinsky1The questions which one asks oneself begin, at last, to illuminate the world, and become one's key to the experience of others.James Baldwin2I. IntroductionOn June 17, 1968, the very last day of the Warren Court, Justice Potter Stewart delivered the majority opinion in v. Alfred H. Mayer Co.,3 a case involving a black couple who alleged that they were denied an opportunity to purchase a home in the Paddock Woods community of St. Louis County solely because of their race.4 Interpreting the Thirteenth Amendment and a provision of the Civil Rights Act of 18665 to prohibit not only governmental discrimination, but also private discrimination in housing, Justice Stewart declared:Just as the Black Codes, enacted after the Civil War to restrict the free exercise of those rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery.6On that day, the Court empowered and liberally applied Supreme Court precedent construing the Thirteenth Amendment to include badges and incidents of slavery,7 and it constitutionally endorsed congressional power to pass legislation that would enforce the Thirteenth Amendment.8 The Court decided the case during a time of civil unrest and shortly after the assassination of Martin Luther King, Jr., on April 4, 1968. One week after that traumatic event, Congress passed the Fair Housing Act, Title VIII of the Civil Rights Act of 1968.9 Complementing Title VIII, the decision marked the beginning of the modern era of fair housing, although the decision was met with strenuous opposition - an example of judicial activism run riot in the view of North Carolina's Senator Sam Ervin.10 Dissenting, Justice Harlan characterized the decision as most ill-considered and ill-advised.11 Indeed, Jones was the only Supreme Court civil rights decision of this period to come close to a congressional override.12Far removed from those riotous jurisprudential times, this Article explores the devastating metaphor of African Americans as unwanted traffic. I take this cultural construction from the Supreme Court's 1981 decision in City of Memphis v. Greene,13 in which the Court endorsed a street closing that blocked traffic from a black neighborhood through a white one.14 Thirteen years after the final Warren Court term, a different Supreme Court took back the empowerment, hope, and promise of the decision in Jones.15In this Article, however, I depart from the doctrinal analysis of the Warren Court's jurisprudence and direct the inquiry along interdisciplinary lines that I hope will provide insights regarding the institutional performance and legitimacy of the Supreme Court in reckoning with race/ism.16 I attempt to demonstrate how, in a racist culture, it is very hard to litigate, negotiate, and maintain antiracist legal remedies, let alone employ them to shift culture. In other words, law reform is necessary, but not sufficient.18 I incorporate insights drawn from the field of cultural studies to provide a scene-setting function to broaden the context of legal analysis and enlarge our sense of hope and possibility. For a brief moment, the Warren Court did precisely that.19Writing from the perspective of a gay activist and legal scholar, the late Tom Stoddard wrote an engaging essay that seeks to provide a better understanding of the interrelationship between law and culture and, from that, how the law can be used to promote social justice.20 Stoddard describes two aspects of lawmaking: rule-shifting and culture-shifting.21 Together these represent the five general goals of lawmaking: (1) To create new rights and remedies for victims; (2) [t]o alter the conduct of the government; (3) [t]o alter the conduct of citizens and private entities; (4) [t]o express a new moral ideal or standard; and (5) [t]o change cultural attitudes and patterns. …