Poet’s Note[1]

In Plessy v. Ferguson, Justice Brown saw two kinds of justice, social and political, which did not overlap.[2] His world of “two races” could be seen as starkly anachronistic when Harvard sorted applicants for admission by Black, Asian, Hispanic, and White, despite numerous differences in background and experience within each.[3] Yet much of the twenty-first century’s relevant discourse seems based on two immutable races. Let’s move on: remove all boxes to check, stop assigning people to races, and stop pedagogical stereotyping.

Plessy was the prototype
For seeing people in stereotype
It legitimized the segregation
In many states of this great nation.

Shame on Justice Henry Brown
Whose claim to fame and great renown
Was to pave a twisted avenue
For social justice to his rescue.

He spelled it out in black and white:
'Twas social justice made it right
Not law which was “political”—
And understanding this was critical.

Now SCOTUS hit the reset switch
For the cause of equal protection
They found a really serious glitch
In the lower courts’ perception.[4]

It emulated the Plessy case
Which sorted people according to race,
Where social justice was the preference—
Not a merely casual deference.

So law professors, tell your students:
Forget bipolar jurisprudence!
Nor is there now an inverse sequel
To Henry’s rule of separate but equal.

  1. The title of this poem is taken from Battle Hymn of the Republic, which inspired many of Justice Brown’s generation to risk losing arms, legs and lives, while Justice Brown paid for a substitute in the Union Army. He later violated his oath of office by deliberately trashing the hard-won Fourteenth Amendment and fashioning a new, parallel system of “social” justice enabled by the amendment’s rejection. See Plessy v. Ferguson, 163 U.S. 537, 544 (1896).

  2. Here is the key quote from Plessy:

    The object of the [Fourteenth] amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.

    163 U.S. at 544.

  3. See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 193–95, 216 (2023).

  4. See id. at 231.