# Barrows v. Jackson/Dissent Vinson

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* Dissenting Opinion Vinson
United States Supreme Court
346 U.S. 249
Barrows v. Jackson
Argued: April 28, 29, 1953. --- Decided: June 15, 1953
Mr. Chief Justice VINSON, dissenting.
This case, we are told, is 'unique.' I agree with the characterization. The Court, by a unique species of arguments, has developed a unique exception to an otherwise easily understood doctrine. While I may hope that the majority's use of 'unique' is but another way of saying that the decision today will be relegated to its precise facts tomorrow, I must voice my dissent.
The majority seems to recognize, albeit ignore, a proposition which I thought was made plain in the Shelley case. That proposition is this: these racial restrictive covenants, whatever we may think of them, are not legal nullities so far as any doctrine of federal law is concerned; it is not unlawful to make them; it is not unlawful to enforce them unless the method by which they are enforced in some way contravenes the Federal Constitution or a federal statute.
Thus, in the Shelley case, it was not the covenants which were struck down but judicial enforcement of them against Negro vendees. The question which we decided was simply whether a state court could decree the ouster of Negroes from property which they had purchased and which they were enjoying. We held that it could not. We held that such judicial action, which operated directly against the Negro petitioners and deprived them of their right to enjoy their property solely because of their race, was state action and constituted a denial of 'equal protection.'
This case is different.
The majority identifies no non-Caucasian who has been injured or could be injured if damages are assessed against respondent for breaching the promise which she willingly and voluntarily made to petitioners, a promise which neither the federal law nor the Constitution proscribes. Indeed, the non-Caucasian occupants of the property involved in this case will continue their occupancy undisturbed, regardless of the outcome of the suit. The state court was asked to do nothing which would impair their rights or their enjoyment of the property.
The plain, admitted fact that there is no identifiable non-Caucasian before this Court who will be denied any right to buy, occupy or otherwise enjoy the properties involved in this lawsuit, or any other particular properties, is decisive to me. It means that the constitutional defect, present in the Shelley case, is removed from this case. It means that this Court has no power to deal with the constitutional issue which respondent seeks to inject in this litigation as a defense to her breach of contract. It means that the covenant, valid on its face, can be enforced between the parties-unless California law or California policy forbids its enforcement-without running afoul of any doctrine ever promulgated by this Court, without any interference from this Court.
I turn, first, to the matter of our power to decide this case. The majority states the issue:
'* * * May erspondent, whom petitioners seek to coerce by an action to pay damages for her failure to honor her restrictive covenant, rely on the invasion of the rights of others in her defense to this action?'
Logically this issue should be met where such an issue is usually met-at the 'threshold'; this decision should precede any discussion of the merits of respondent's constitutional claim. Yet it is not amiss to point out that the majority has failed to put first things first; it decides the merits and then, comforted by its decision on the merits, resolves its doubts that it has power to decide the merits.
A line of decisions-long enough to warrant the respect of even the most hardened skeptic of the strength of stare decisis as an effective limitation upon this Court's exercise of jurisdiction in constitutional cases-establishes the principle which should stay this Court from deciding what it decides today-from doing what it does today-from imposing a novel constitutional limitation upon the power of the courts of the several states to enforce their own contract laws as they choose. This deep-rooted, vital doctrine demands that the Court refrain from deciding a constitutional issue until it has a party before it was has standing to raise the issue. The majority agrees that this is a 'salutary' principle, and supplies us with but a small sampling of the cases to show that it has been rigorously applied in many varied situations, and surely no sophistry is required to apply it to this case. Accordingly, respondent must show, at the outset, that she, herself, and not some unnamed person in an amorphous class, is the victim of the unconstitutional discrimination of which she complains.
Respondent makes no such showing. She does not ask the Court to protect her own constitutional rights, nor even the rights of the persons who now occupy her property. Instead, she asks the Court to protect the rights of those non-Caucasians-whoever they may be-who might, at some point, be prospective vendees of some other property encumbered by some other similar covenant. Had respondent failed to designate herself as the agent of this anonymous, amorphous class, the majority certainly would have no power to vindicate its rights. Yet, because respondent happens to have decided to act as the self-appointed agent of these principals whom she cannot identify-in order to relieve herself of the obligations of her own covenant-the majority finds itself able to assert the power over state courts which it asserts today. I do not think that such tenuous circumstances can spawn the broad constitutional limitation upon state courts which springs from today's decision.
Yet we are told that the rule which restricts our power to impose this constitutional limitation is but a rule of 'self restraint.' So is every other jurisdictional limitation which depends, in the last analysis, solely upon this Court's willingness to govern its own exercise of power. And certainly to characterize the rule as self imposed does not mean that it is self-removable by a simple self-serving process of argument. Yet the majority's logic, reduced to its barest outlines, seems to proceed in that fashion. We are told that the reasons for the self-imposed rule, which precludes us from reaching the merits, have been dissipated in this case, but the only reason why the reasons do not exist is because the Court first holds for respondent, and, having thus decided the merits it feels free to abandon the rule which should preclude it from reaching the merits. In my view, respondent cannot surmount the hurdle of our well-established rule by proceeding with an argument which carrries her in a circle right back to her precise point of departure. If it should be, as the majority assumes, that there is no other way that the rights of unidentified non-Caucasians can be vindicated in court, that is only an admission that there is no way in which a substantial case or controversy can be predicated upon the right which the majority is so anxious to pass upon. I cannot assent to a manner of vindicating the constitutional rights of persons unknown, which puts personal predisposition in a paramount position over well-established proscriptions on power.
But even if the merits are to be reached, even if we must decide whether enforcement of this covenant in a lawsuit of this kind is state action which contravenes the Fourteenth Amendment, I think that the absence of any direct injury to any identifiable non-Caucasian is decisive. The Shelley case, resting on the express determination that restrictive covenants are valid between the parties, dealt only with a state court's attempt to enforce them directly against innocent third parties whose right to enjoy their property would suffer immediate harm.
In this case, the plaintiffs have not sought such relief. The suit is directed against the very person whose solemn promise helped to bring the covenant into existence. The plaintiffs ask only that respondent do what she in turn had a right to ask of plaintiffs-indemnify plaintiffs for the bringing about of an event which she recognized would cause injury to the plaintiffs. We need not concern ourselves now with any question of whether this injury is fancied or real. The short of that matter is that the parties thought that any influx of non-Caucasian neighbors would impair their enjoyment of their properties, and, whether right or wrong, each had the right to control the use of his property against that event and to exact a promise from his or her neighbor that he or she would act accordingly. And that is precisely what petitioners and respondent did. Moreover, we must, at this pleading stage of the case, accept it as a fact that respondent has thus far profited from the execution of this bargain; observance of the covenant by petitioners raised the value of respondent's properties. By this suit, the plaintiffs sought only to have respondent disgorge that which was gained at the expense of depreciation in her neighbors' property.
The majority speaks of this as an attempt to 'coerce' respondent to continue to abide by her agreement. Yet the contract has already been breached. The non-Caucasians are in undisturbed occupancy. Furthermore, the respondent consented to the 'coercion' if 'coercion' there be-by entering into the covenant. Plaintiffs ask only that respondent now pay what she legally obligated herself to pay for an injury which she recognized would occur if she did what she did.
Of course, there may be other elements of coercion. Coercion might result on the minds of some Caucasian property owners who have signed a covenant such as this, for they may now feel an economic compulsion to abide by their agreements. But visiting coercion upon the minds of some unidentified Caucasian property owners is not at all the state action which was condemned in the Shelley case. In that case, the state court had directed 'the full coercive power of government' against the Negro petitioners forcefully removing them from their property because they fell in a class discriminatorily defined. But in this case, where no identifiable third person can be directly injured if respondent is made to disgorge enough to indemnify petitioners, the Court should not undertake to hold that the Fourteenth Amendment stands as a bar to the state court's enforcement of its contract law.
Obviously we can only interfere in this case if the Fourteenth Amendment compels us to do so, for that is the only basis upon which respondent seeks to sustain her defense. While we are limited to enforcement of the Fourteenth Amendment, the state courts are not; they may decline to recognize the covenants for other reasons. Since we must rest our decision on the Constitution alone, we must set aside predilections on social policy and adhere to the settled rules which restrict the exercise of our power of judicial review-remembering that the only restraint upon this power is our own sense of self-restraint.
Because I cannot see how respondent can avail herself of the Fourteenth Amendment rights of total strangers-the only rights which she has chosen to assert-and since I cannot see how the Court can find that those rights would be impaired in this particular case by requiring respondent to pay petitioners for the injury which she recognizes that she has brought upon them, I am unwilling to join the Court in today's decision.

## Notes

* ↑ Shelley v. Kraemer, 1949, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161.
* ↑ The state action which we struck down was epitomized in this language, 334 U.S. at page 19, 68 S.Ct. at page 845, 92 L.Ed. 1161:
* ↑ Compare Montgomery Building & Construction Trades Council v. Ledbetter Erection Co., 1952, 344 U.S. 178, 179, 73 S.Ct. 196; United Public Workers v. Mitchell, 1947, 330 U.S. 75, 86, 67 S.Ct. 556, 562, 91 L.Ed. 754.
* ↑ The principle derives, of course, from the nature of the judicial power conferred by Art. III of the Constitution. At a very early stage in this Court's history, Chief Justice Marshall put the matter thus:
* ↑ Mr. Justice Frankfurter, concurring in Coleman v. Miller, 1939, 307 U.S. 433, 461, 59 S.Ct. 972, 985, 986, 83 L.Ed. 1385, sets forth the basis of the principle which I believe the Court has failed to observe today:
* ↑ Tyler v. Judges of the Court of Registration, 1900, 179 U.S. 405, 21 S.Ct. 206, 45 L.Ed. 252, while not the first, is generally cited as the leading case on this aspect of the rules governing our exercise of jurisdiction. The Court said:
* ↑ Similarly, I think that respondent's reliance, in her brief, on Buchanan v. Warley, 1917, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, as a precedent to show that she has met the minimum requirements on standing, is misplaced. In that case, a white vendor attacked a zoning ordinance which prohibited the sale of his property to any Negroes. The Court held he had standing to attack the ordinance since his constitutional attack was founded on the theory that the ordinance unconstitutionally abridged his right to sell his property to any willing purchaser, and not on the theory that it abridged the Negro vendee's right to buy property without being subject to discrimination by the state. The Court then held the statute invalid as an unreasonable classification.
* ↑ See Mr. Justice Stone dissenting in United States v. Butler, 1936, 297 U.S. 1, 78-79, 56 S.Ct. 312, 324-325, 80 L.Ed. 477.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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