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1997 J. Sup. Ct. Hist. 15 (1997)
The Virtue of Defeat: Plessy v. Ferguson in Retrospect

handle is hein.journals/jspcth1997 and id is 148 raw text is: The Virtue of Defeat: Plessy v. Ferguson in Retrospect Clarence Thomas As we near the end of this century, I would like to discuss a decision that came at the close of the last: Plessv r Ferguson, the notorious 1896 case that helped usher in (or at least sanc- tion) more than half-a-century of legalized rac- ism. In particular, I would like to discuss it fron the standpoint of those who were on the losing side and the virtues of losing, especially in the face of insurmountable odds. I must say, in passing, that, as virtuous as it may be, losing is not an experience to which I hope to become that accustomed on this Court. The hundredth anniversary of Pless' has passed with almost the same lack of general interest that the decision received when Jus- tice Henry Billings Brown delivered the opin- ion for a 7-1 Court on May 18, 1896. As the historian C. Van Woodward describes it, in con- trast to the great controversy that arose when the Court struck down much of the 1875 Civil Rights Act in the Civil Rights Cases,2 the Plessv decision was accorded only short, in- conspicuous news coverage and virtually no editorial comment outside the Negro press. Reviewing the newspapers of the day, one writer of today observes that several papers ignored Plessy in favor of decisions involving an heiress's million-dollar inheritance and a claim of plagiarism by a well-known playwright.' Progressive journals such as the Harvard Law Review and the Yale Law Journal busied them- selves with articles such as The Law of Icy Sidewalks in New York State. and Two Years' Experience of the New York State Board of Law Examiners, but paid no attention to Plessy. Aside from a sprinkling of law review ar- ticles and law school addresses, Plessy's cen- tenary also has passed with little attention.' This may he the case (at least in part) because the excellent scholarly work on Pless v done by Professor Charles Lofgren and by Professor Owen Fiss' has discouraged others from en- tering the field. Plessy, however, may be re-

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