Issues Avoided: Cemeteries, Miscegenation, Gifts of Land
THREE areas of law had been put aside during the period of the Supreme Court's immersion in the Brown school desegregation litigation. The first was the question of segregated cemeteries, ingeniously disposed of by the Court in 1955 and not decided subsequently. The second was the matter of miscegenation, particularly controversial because sex was the basis of many of the whites' deepest fears about blacks and because "race-mingling" challenged the very foundation of the superior-subordinate relations between the races. The Court finally reached this issue more than ten years after Brown. The third was the gifts of land by private individuals to government bodies for use on a segregated basis, which came to the Court in connection with a school, parks, and a hospital. Overall, these three areas of law present the matter of individual versus collective justice: Should the Court after Brown avoid deciding some admittedly difficult cases involving specific individuals out of a feeling that avoidance is necessary to preserve the proper atmosphere in which desegregation might go forward? Put differently, had the Court's Brown rulings so completely exhausted its goodwill that it had little more on which to draw in the race relations area for several years and thus had to avoid at least some problems? If the Court were to avoid specific cases in the "here and now," what would it do later? We shall see that in two of these areas, the issue was presented with sufficient frequency that the Court was able to reach a ruling in due course, yet in one area--segregated cemeteries--the issue did not return, leaving a residue of neither individual nor collective justice.
In the two areas ultimately resolved, we find vastly different strategic approaches by the Court. In one, miscegenation, the issue was ultimately decided in a clear and clean straightforward manner, with the justices anticipating their decision by questions in an earlier case involving interracial cohabitation rather than miscegenation. In the other, gifts of land, we see the use of a particular strategy--which we have called "hit 'em