One of my projects these days is studying the cases challenging racially restrictive covenants in Oklahoma City from the late 1920s to just after Shelley v. Kraemer. This is a piece of Reading the Great Constitutional Dreambook, which I'm starting to work on again after many years away. The African American community vigorously challenged the restrictions for a long time. There were economic interests at stake -- one of the early challenges came from a man who owned an apartment building, for instance. And there were some surprising successes, as well as the usual (expected) setbacks.
Last time I wrote about this, I talked about a white lawyer who successfully challenged a covenant and used an appeal to the constitutional right to property, while talking about his bona fides as a son of the Confederate south. Now I want to talk about a trial judge who struck down the covenant in that case. What interests me greatly about this judge, Warren K. Snyder, is not that he said he was at the forefront of civil rights history. In fact, he said quite the opposite. Check out this statement:
[B]ecause of birth, raising and environment, . . . I don’t believe now and I don’t think I ever will believe in racial equality, or in racial intercourse. I can’t imagine the success of having a negro sit down at my table and break bread and things of that kind, . . . but the court feels that the colored man or negro has some rights to property which he is entitled to; just as much under his constitutional rights as though he were white.
I have a question, what to make of this? One easy hypothesis is that he was an elected judge and he had to appeal to his constituency and explain in some way that was understandable to them what he was doing. He couldn't have a future in Oklahoma politics by appearing to be on the cutting edge of Civil Rights. And yet, for some reason, he struck down the covenant. And that makes me wonder, why was he doing that? There are, I suppose, several hypotheses. Perhaps he was enlightened on issues of racial equality -- not 100% certain that's the explanation. But maybe he understood that there were some basic constitutional and property rules that had to be followed. But if that's the case, why the race-baiting language? Why did he have to say, I'm personally against racial equality, or even race-mixing, in pretty much any form?
I'm deeply interested in these kinds of statements, where judges say that their personal feelings are on the other side, but the law requires them to do something. We're used to hearing that much more frequently in the context of liberal judges saying the law requires them to act in a certain way. Robert Cover's brilliant book Justice Accused looked at this from the perspective of anti-slavery judges who issued proslavery opinions. Justice Thomas Ruffin's opinion in State v. Mann is believed by many to be this sort of opinion -- though my colleague Eric Muller's path-breaking article on Ruffin has cast very substantial doubt on that.
I've worked some on proslavery judges who issued antislavery opinions, which I find to present a very cool set of questions. There's the judge in Alabama, soon to be a zealously proslavery governor, who freed kidnapped Cornelius Sinclair. And there's Justice Catron -- and, believe me, he was no closet abolitionist. He was the real McCoy, proslavery nut. Yet he freed some enslaved people who should have been freed under a Tennessee will.
Judge Snyder invites a similar discussion. Why did he did he write about his personal views when they were inconsistent with the decision he was announcing? Is this part of making the decision more acceptable to Oklahoma voters? Does his statement give the decision more legitimacy in some way because it suggests that the law requires this even though he is against it? Or does it somehow undermine the decision because he says he think it's bad social politics?
I talk more about the Oklahoma City litigation and its place in progressive property in my paper, "Re-Integrating Spaces: The Possibilities of the Common Law Property." The image is a photograph from another of the Oklahoma City racially restrictive covenant cases. It is of property in the northeast section of the city that was burdened with a covenant. (That neighborhood no longer exists; it's been replaced with a University of Oklahoma medical complex and highways.)