THE Supreme Court has been involved in resolving race relations controversies for a long time. Many of the cases which were decided from the end of the Civil War up to 1900 provided the basis for what was to come in the mid-twentieth century. In that earlier period, the Court narrowly defined the meaning of the post-Civil War amendments to the Constitution, limited Congress's ability to legislate on matters of discrimination, and affirmed the doctrine of "separate but equal." Although Brown may seem to stand out from the rest of the Supreme Court's race relations decisions, one can argue that what the justices did in Brown was only to erase what it had done earlier in imposing disabilities on racial minorities.
That the Court was not writing on a blank slate in the 1950s is shown by a number of key cases of high doctrinal importance. They are: the jury selection cases; the Civil Rights Cases ( 1883), critical for the public accommodations area and which established the "state action" doctrine;1Plessy v. Ferguson ( 1896), along with Cumming ( 1899), and Gong Lum ( 1927), through which the Plessy "separate but equal" doctrine was eased into education; the "white primary" cases leading to Smith v. Allwright ( 1944), in which some major state action questions were raised; and the housing discrimination cases of Buchanan v. Warley ( 1917), Corrigan v. Buckley ( 1926), Shelley v. Kraemer ( 1948), and Barrows v. Jackson ( 1950), all of which were crucial in establishing the "state action" doctrine's boundaries. Of these cases, Shelley and Barrows stem from the post-World War II or "modern" period, as do some cases following up Smith v. Allwright; the two transportation cases, Morgan and Henderson, which provided the Court with unused opportunities to dispose of Plessy; and the line of graduate education cases from Gaines (prior to the war) through Sipuel to Sweatt and McLaurin, which provided the immediate legal and strategic context in education in which the Brown set of cases was brought. We examine all the older cases primarily to indicate the doctrine the Court announced; with the more recent cases, we are interested both in doctrine and in the Court's strategies prior to Brown; and in several of the cases we introduce portions of the oral argument before the Court.