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

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            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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