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29 Fla. St. U. L. Rev. 55 (2001-2002)
The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking

handle is hein.journals/flsulr29 and id is 73 raw text is: THE WHITE PRIMARY RULINGS:
A CASE STUDY IN THE CONSEQUENCES
OF SUPREME COURT DECISIONMAKING
MICHAEL J. KLARMAN*
I.  INTRODUCTION  .....................................................................................................  55
II.  THE PRE.SMITH  WHITE PRIMARY CASES ...........................................................  57
III. THE LEGAL AND POLITICAL CONTEXT OF SMITH V. ALLWRIGHT AND THE
SUBSEQUENT HISTORY OF THE WHITE PRIMARY ...............................................  61
IV. THE CONSEQUENCES OF SMITH V. ALLWRIGHT .................................................. 69
V .  CONCLUSION  .......................................................................................................  102
I. INTRODUCTION
Political scientists and legal scholars have written a good deal in
recent years on the consequences of Supreme Court decisions.1 Much
of this scholarship has been skeptical of the Court's capacity to pro-
duce significant social change. Most notably, Professor Gerald N. Ro-
senberg has declared the notion that courts can reform society a
hollow hope.2 Rosenberg shows that Brown v. Board of Education3
produced very little school desegregation until Congress passed
landmark civil rights legislation to implement the Court's ruling.4 He
also makes a strong case that Brown played a less instrumental role
in the 1960s civil rights movement than is commonly believed.' Simi-
*James Monroe Professor of Law, Albert C. Tate, Jr., Research Professor, and Professor of
History, University of Virginia. B.A., M.A., University of Pennsylvania; J.D., Stanford Law
School; D. Phil., Oxford University. I am grateful to Daryl Levinson, Rick Pildes, and Mark
Tushnet for their helpful comments on an earlier draft. Stephanie Russek provided ex-
traordinary research assistance, and, as always, I am indebted to the reference librarians
at the University of Virginia School of Law for the superb research help they regularly
provide. A revised version of this Article will appear in a chapter of my forthcoming book,
provisionally entitled NEITHER HERO, NOR VILLAIN: THE SUPREME COURT, RACE AND THE
CONSTITUTION IN THE TWENTIETH CENTURY (Oxford Univ. Press). As the Mason Ladd lec-
turer at The Florida State University College of Law in February, 2001, 1 was privileged to
present material from a different chapter of that book. I am grateful to both the students
and the faculty at Florida State for the warm and enthusiastic reception they accorded me
on that occasion. I owe special thanks to Mark Seidenfeld for making that occasion possi-
ble.
1. See, e.g., GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT
SOCIAL CHANGE? (1991); LEVERAGING THE LAW: USING THE COURTS TO ACHIEVE SOCIAL
CHANGE (David A. Schultz ed., 1998); STEPHEN L. WASBY, THE IMPACT OF THE UNITED
STATES SUPREME COURT: SOME PERSPECTIVES (1970).
2. ROSENBERG, supra note 1.
3. 347 U.S. 483 (1954).
4. ROSENBERG, supra note 1, at 49-54.
5. Id. at 107-56. See also Gerald N. Rosenberg, Brown Is Dead! Long Live Brown!:
The Endless Attempt to Canonize a Case, 80 VA. L. REV. 161 (1994) (giving Brown almost
no credit for inspiring the civil rights movement). But cf David J. Garrow, Hopelessly Hol-
low History: Revisionist Devaluing of Brown v. Board of Education, 80 VA. L. REV. 151
(1994) (giving Brown tremendous credit); Michael J. Klarman, Brown, Racial Change, and
the Civil Rights Movement, 80 VA. L. REV. 7 (1994) (arguing that Brown indirectly acceler-

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