III. Lesson Two: The Court's Consistently Faithful Attention to Injustice from Case to Case Is Important, Because Only Such Sustained Attention in Case After Case Is Likely to Have a Positive Impact on the Course of Freedom and Equality
A tempting position for the Supreme Court to take is that it decides only the cases before it, and, like a common law court, its only obligation to future decisions is to take an adequate account of past case precedent. It is particularly tempting for the Court to take this stance as a defensive response to popular cries of judicial activism. However, a comparison of the Court's action in the civil rights cases to its response in the Chinese cases demonstrates that only a Court that is persistent in fighting injustice in case after case will make a real difference for persecuted minorities. Despite the painful slowness of the Court's commitment to the elimination of segregation in the South, after Brown v. Board of Education the Court was unremitting and relatively comprehensive until the mid-1970s, which paid off. In case after case the Supreme Court went out of its way to reject subterfuges created to avoid school desegregation, such as closure of public schools combined with public support of private schools, local school options, and plain intransigence. The Court also rejected other government attempts to enforce segregation on busses, in voting, on juries, and in personal relationships.
Moreover, the Court went out of its way to protect the nascent civil rights movement as much as it could. The Court rejected attempts to break the NAACP, squelching suits against the NAACP for damages for libel, attacks on the organization for stirring up civil rights litigation, and attempts to expose its membership to public retaliation. The Supreme Court also went well beyond business as usual in supporting the civil rights movement, shielding movement participants with whatever doctrines it could validly muster. During the height of the civil rights era of the 1960s, the Supreme Court decided almost two dozen cases involving sit-ins and protests. In each case, until Adderley v. Florida, the Court exercised robust and searching judicial review, invalidating virtually all of these convictions. The grounds it utilized to invalidate state laws were breathtakingly eclectic, ranging from constitutional (equal protection and First Amendment) and statutory (the new Civil Rights Acts) grounds to flat-out rejection of the lower court's evidence as insufficient under state law. The full effect of the Court's patient and consistent rejection of attempts to evade the desegregation implications of Brown or to frighten and punish civil rights protesters can probably not be measured with any degree of certainty. However, it is clear that principal actors in the desegregation conflict believed the Court was having a significant effect. For example, in a statewide television address during the 1964 presidential campaign, Senator Strom Thurmond of South Carolina accused the Democratic Party of protecting the Supreme Court in a reign of judicial
In the Chinese cases, on the other hand, it often fell to federal district court judges--particularly those in California--to protect the Chinese against both the blatant illegality of local officials and grudgingly restrictive readings of federal immigration laws. To be sure, the Chinese won some early cases in the state courts: the capitation tax, the police tax, the miner's tax, and the 1856 enactment prohibiting Chinese immigrants from landing in California were all invalidated. However, perhaps the most significant demonstration of the California Supreme Court's views about the Chinese cause was Justice Hugh Murray's opinion in People v. Hall. Justice Murray said of the Chinese that their mendacity is proverbial and their race was by nature marked as inferior . . . and incapable of progress or intellectual development beyond a certain And there were other cases that more indirectly displayed that same attitude. For example, in People v. Williams, the California Supreme Court sustained defendant's offer of testimony for the notorious fact that Chinese are in the habit of resisting forcibly the collection of taxes, and that all collectors feel compelled to go armed for the purpose of resisting the assaults of the Although the Chinese won some cases in the California Supreme Court, the court certainly could not be counted on to protect the Chinese against all discriminatory legislation.
In such an atmosphere, the federal courts provided a welcome alternative avenue of relief. While most of the nonimmigration cases were resolved in state court, the federal courts provided some protection for the Chinese as well. For example, San Francisco's minimum airspace lodging house ordinance targeted at the Chinese was enforced by police using ladders to enter Chinese boarding houses in the middle of the night. Even while Judge Hoffman was reluctant to overturn the ordinance on its face, he scolded San Francisco about the need for even-handed enforcement of the law. When Judge Hoffman heard the lodging house case, he was so disgusted that he all but invited the Chinese to challenge a related ordinance which called for county jail inmates to have their hair shorn. That ordinance was intended to humiliate the Chinese wearing queues (pig-tails) or to pressure them into paying fines in lieu of (presumably costly to the city) imprisonment for violation of the various ordinances directed at them. Similarly, in Chy Lung v. Freeman, Justice Miller noted that a silly, an obstinate, or a wicked commissioner may bring disgrace upon the whole country, the enmity of a powerful nation, or the equal loss of an equally powerful
Where immigration was concerned, the lower federal courts were critical and persistent actors in protecting the passage rights of Chinese immigrants. Between 1882, when the first Chinese Exclusion Act was passed by Congress, and 1890, Chinese travelers filed 7,080 habeas petitions to challenge the decisions of the San Francisco collector in charge of deciding which Chinese travelers were going to be allowed to enter the United States. Of those, the Chinese won about eighty-five to ninety percent. They were so successful that Congress finally eliminated the right to judicial review for administrative immigration decisions, a legislative move ratified by the U.S. Supreme Court in 1892.
The immigration cases demonstrate that the federal district judges, including Judges Hoffman and Sawyer, took the writ of habeas corpus and the evidentiary requirements of the law very seriously. Jung Ah Lung, returning from China, claimed that his right-of-return certificate had been stolen by pirates. Judge Hoffman granted him habeas corpus on the strength of customs records and testimony of three witnesses over the objection of the United States, which claimed that only the certificate was valid evidence of his residence. When the collector challenged the right of the Chinese to apply for habeas corpus in In re Jung Ah Lung, Judge Hoffman replied that
[A]n abrogation of the writ of habeas corpus, which has always been considered among English-speaking peoples the most sacred muniment of personal freedom, must be unmistakably declared by [C]ongress before any court could venture to withhold its benefits from any human being, no matter what his race or color.
Salyer notes, however, that perhaps due to the large number of habeas cases filed by the Chinese, the due process afforded Chinese immigrants and citizens attempting to enter was far less than that afforded criminal defendants. Petitioners were brought before the U.S. attorney to give a statement (admissible against the petitioner in court) without their lawyers, then released on bail. Officials widely believed that the Chinese and their witnesses lied in the proceedings, having no regard for an oath according to U.S. attorney John P. Carey, who also labeled the proceedings novel and strange. Both the collector and the U.S. attorney cross-examined petitioners and witnesses at length, trying to find holes in their cases that would jeopardize their claim. Judge Hoffman suggested that this was a Star Chamber proceeding that was probably illegal but necessary to handle all of the cases that were coming before the court. Due to increasingly restrictive Exclusion Acts passed in 1882, 1884, and 1888, and to the United States' 1880 amendment of the 1868 Burlingame treaty with China, the only Chinese who could enter the United States were nonlaborers such as merchants, students, and travelers. However, the federal courts in California had to contend with a number of administrative measures that interpreted those laws in such a way as to limit the flow even of immigrants permitted to enter under the treaty. In one blatantly racist response, the federal court had to turn back the collector's challenge to the right of ethnic Chinese people who had been born in the United States to return after a journey to China, a battle which the government lost in 1898 when the U.S. Supreme Court declared that they were indeed citizens in Wong Kim Ark. In a telling Catch-22, after the 1882 act required Chinese laborers leaving the United States for visits to China to get identification certificates from customs collectors to present on their return to the United States, the federal court had to overrule the San Francisco collector when he refused to admit those Chinese resident aliens without certificates who had left for visits even before the certificate requirement became law and therefore had no way of getting a certificate.
Furthermore, the collector even mounted challenges to Chinese laborers' claims that they had not left the United States (and therefore did not need a return certificate.) Thus, for example, Justice Field (sitting as circuit justice) and Judge Sawyer had to issue a habeas writ to a Chinese cabin waiter, Ay Sing, while he was onboard the City of Sydney. Ah Sing left his U.S. port eight days before the immigration commissioner started issuing certificates to returning Chinese immigrants and never left the ship at any of its foreign ports of call. Justice Field agreed that Ah Sing never left the jurisdiction of the United States, and in later cases, further ruled that crewmen did not lose their residence in the United States because they took a few hours of shore leave in foreign ports. Other immigration cases decided in favor of the Chinese include Judge Hoffman's ruling that the son of a Chinese merchant immigrating to work in his father's business was not meant to be excluded by the Exclusion Act, and Justice Field's early ruling that American-born persons of Chinese descent were U.S. citizens.
Similarly, the California federal judges were required to beat back numerous hostile administrative interpretations of what evidence was acceptable in support of a Chinese petitioner's claim that he had the appropriate status to land. After the federal exclusion of Chinese laborers in the 1882 act, non-laborer Chinese immigrants were required to obtain certificates from the Chinese government attesting to their merchant or student status. However, the San Francisco Customs collector refused to admit a Chinese immigrant because he did not have the so-called Canton certificate, even though he had other evidence of his merchant status. In Justice Field's opinion, the 1880 revision of the Burlingame Treaty and 1882 Act only modified the United States' commitment to free entry of Chinese laborers. Therefore, he held that refusing a Chinese merchant entrance because he could not produce his Chinese government identification certificate was a clear violation of the United States' commitment to China.
We should not, however, glorify lower federal court intervention too much; although the federal district court was often the champion of the Chinese, over time the federal judges became quite hard-nosed about interpreting the As evidence, we might recall Justice Field's circuit decision in Chew Heong, overruling three other judges in holding that the collector's certificate was the only acceptable evidence of previous U.S. residence, or his decision in In re Ah Moy (Case of the Chinese Wife) that an immigrating wife, though she did not assume the laborer status of her husband, was still required to present a laborer's certificate to deboard.
Just as certainly, the U.S. Supreme Court's record in protecting the Chinese against hostile rulings is less than stellar. To be sure, Yick Wo is not the only case in which the Supreme Court vindicated critical rights of the Chinese. The Supreme Court overruled Justice Field's decision in Chew Heong, holding that under U.S. treaty obligations, laborers in the country on November 17, 1880, had the right to come and go as they pleased without producing a collector's certificate. And certainly the Court's holding in Wong Kim Ark that U.S. born persons of Chinese descent are citizens under the Fourteenth Amendment is even more important, though its rhetoric is certainly less than ringing from a civil rights perspective.
Despite these few cases, on the whole, the United States Supreme Court's opinions display little effort to protect the Chinese against a tide of legislation attempting to make their lives as miserable as possible, particularly at the federal level. For example, before Yick Wo, in Soon Hing v. Crowley, the Court refused to permit a writ of habeas corpus to be issued for a Chinese launderer who was imprisoned for violating the 10:00 p.m. curfew ordinance. After Yick Wo, the Court continued to decide contested cases against the Chinese--almost stretching to do so--in contrast to the more measured rulings of California District Court Judges Sawyer and Hoffman. For example, in Lem Moon Sing v. United States, the Court affirmed that there was no judicial review of a final administrative decision of deportation due to a Congressional statute barring such review. In Quock Ting v. United States, the Supreme Court held that a Court could reject a petitioner's habeas corpus petition even though his testimony was not contradicted by any other evidence.
In interpreting the substantive rules for admission, the Court also usually found against the Chinese. In United States v. Lee Yen Tai, the Court refused to rule that a later, more Chinese-friendly treaty abrogated a previous statute that permitted easy exclusion of Chinese immigrants. In Yee Won v. White, the Court held that the Chinese wife and child of a merchant's son could not enter the United States without the requisite $1,000 in property required for laborers to bring their families to the United States. The Court reasoned that they assumed the son's status, and that he had become a laborer while he was in the United States. As late as 1928, the Court held in Nagle v. Loi Hoa that Chinese merchants could not be admitted to the United States if they could only produce the merchant's certificate from French Indo-China, where they had long resided, rather than China, their place of birth. The court also refused jurisdiction in some cases, and in others, permitted Congress to restrict due process rights for the Chinese being deported.
As noted earlier, it is tempting to suggest that in the Chinese cases, the Supreme Court was merely recognizing its limits as a court and acting as a common law court should. In that view, the duty of the Court was to take each case on its merits and decide it within the four corners of the treaties with China and the increasingly restrictive federal statutes governing the entry of the Chinese. However, as both the civil rights era cases and the Chinese cases suggest, the Supreme Court cannot act as a common law court by pretending that each case is sui generis and governs only those before the court. In the context of epic struggles over civil rights, that posture is many times disingenuous because the Court's pronouncements against minorities have a profound impact on the national conversation over minority rights. When the Court takes its public role seriously, as in the civil rights cases in the 1960s, its rulings have at least the promise of making a political and social difference on behalf of minorities. When it fails to do so, as it did in the Chinese cases, cases such as Yick Wo take on the cast of a pretentious moment of self-congratulation and fail to serve their purpose.
