SHELLEY v. KRAEMER 334 U.S. 1 (1948) HURD v. HODGE 334 U.S. 24 (1948)

In 1926, in corrigan v. buckley, the Supreme Court rejected a constitutional attack on judicial enforcement of racially restrictive covenants—contractual agreements between neighboring residential landowners limiting the occupancy of their houses to white persons. From that time forward, the NAACP sought to persuade the Court to reconsider and find the covenants' enforcement to constitute state action in violation of the fourteenth amendment. Finally, in Shelley, the Court granted review in two such cases, one from Missouri and one from Michigan. In both, white neighbors obtained injunctions forbidding black buyers to occupy houses subject to racial covenants. The decision was widely anticipated to be important, both doctrinally and practically. Eighteen amicus curiae briefs supported the NAACP's position, and on the other side three white "protective associations" filed briefs, as did the National Association of Real Estate Boards. Counsel for the NAACP included charles houston and thurgood marshall.

The time was ripe for an overruling of Corrigan' s casual acceptance of racially restrictive covenants as a "private" means of imposing residential segregation. The armed forces had integrated at the end of the world war ii;in 1947 the President's Committee on Civil Rights had published a report calling attention to the importance of judicial enforcement to the effectiveness of the covenants; and President harry s. truman, a strong civil rights advocate, had placed the weight of the executive branch on the NAACP's side by authorizing the solicitor general to file an amicus curiae brief. The Supreme Court held, 6–0, that state courts could not constitutionally enjoin the sale to black buyers of property covered by restrictive covenants.

Shelley' s result seems inescapable. Yet hardly anyone has a kind word for the Shelley opinion, written by Chief Justice fred vinson. Corrigan was not overruled but was characterized as a case involving only the validity of restrictive covenants and not their enforcement in courts. Standing alone, said Vinson, the racial covenants violated no rights; their enforcement by state court injunctions, however, constituted state action in violation of the Fourteenth Amendment. Taken for all it is worth, this reasoning would spell the end of the state action limitation—a loss many could cheerfully bear. But it is plain the Court had no such heroics in mind. The Justices were not ready to find state action in any private conduct the state might fail to prohibit. Yet the opinion never quite explained why, given the Shelley result, those larger doctrinal consequences do not follow. The opinion's elusive quality led philip kurland to call it "constitutional law's Finnegans Wake."

Two decades later, in evans v. abney (1970), the Court picked up the first shoe. Shelley was limited severely, and the power of a private owner to call on the courts to enforce his or her control over property was largely freed from constitutional limitations.

A companion case to Shelley, Hurd v. Hodge (1948), involved a racial covenant covering land in the district of columbia. Without reaching the question whether the Fifth Amendment guaranteed equal protection (see bolling v. sharpe), the Court held the judicial enforcement of the covenant to violate "the public policy of the United States."

Kenneth L. Karst
(1986)

Bibliography

Henkin, Louis 1962 Shelley v. Kraemer : Notes for a Revised Opinion. University of Pennsylvania Law Review 110:473–505.

Horowitz, Harold W. 1957 The Misleading Search for "State Action." Southern California Law Review 30:208–221.