EXPLAINING THE SEGREGATION DECISIONS IN TERMS OF FACTS.

EXPLAINING THE SEGREGATION DECISIONS IN TERMS OF FACTS. Justice Souter gives an interesting explanation of the !896 segregation decision (PLESSY v. FERGUSON). He points out the experiences of the justices who decided the case: “…the members of the Court in PLESSY remembered the day when human slavery was the law in much of the land. To that generation, the formal equality of an identical railroad car meant progress.” I am not persuaded. It is difficult to extend that explanation to the body of case law extending segregation to other circumstances that was developed in the two or so generations that followed. The period in which PLESSY was decided has been characterized as a period of “legal formalism” when arguments from logic alone were given more weight than they are now. I continue to think that the whole structure of the segregation cases rested on logical manipulation of the phrase “separate” does not necessarily mean “unequal” while avoiding the terrible facts.