Opponents may contend that the opinions in Dred Scott and Plessy at least did not significantly contribute to the subjugation and suffering of African Americans. As for Dred Scott, objectors might contend that the Civil War and Reconstruction Amendments promptly negated the importance of the decision. As for Plessy, objectors might urge that, had the opinion favored Plessy, it would not have been enforced or followed and African Americans would have endured just as much pain as they did in actuality. Some modern scholarship casts doubt on the importance of
Dred Scott or Plessy in contributing significantly to the oppression of
African Americans.318 Based on such contentions, objectors might also
note 299, at 710.
315. See FREDERICK DOUGLAS,NARRATIVE OF THE LIFE OF FREDERICK DOUGLAS FREDERICK
(Dover Thrift ed. 1995) (originally published as Narrative of the Life of Frederick Douglas, an
American Slave, by the Anti-Slave Office, Boston, 1845) (detailing the early life of Douglas, who
escaped slavery and became a brilliant writer, eloquent orator and spokesperson for African Americans).
316. See U.S.CONG.,BLACK AMERICANS IN CONGRESS,1870–1887, 22–25 (Matthew Wasniewski ed., 3d ed. 2008).
317. KLARMAN,JIM CROW,supra note 43, at 6.
318. See, e.g., LOFGREN,supra note 291, at 203–04 (contending that there is only slight evidence
argue that the decisions were not sufficiently causal regarding the injuries visited to warrant Supreme Court expiation.
There are two answers. First, the no-causation argument is weak on its merits. Particularly as to Plessy, we can plausibly infer that, while there were non-judicial influences as well,319 the Court’s ruling, as opposed to
a ruling strongly in their favor, made life significantly worse for African Americans.320 After all, the Plessy Court declared African Americans
natively inferior and authorized their segregation in public settings, which served as a “public symbol[] and constant reminder[]” of their “inferior position.”321 No generally accepted account would allow the Court to deny
that the decision helped stimulate the subsequent survival and burgeoning of segregation laws.322 By officially approving as opposed to denouncing
the color-line, the ruling seems likely also to have encouraged the increasingly hostile attitudes and vicious behaviors that developed toward African Americans by many whites.323 Moreover, Plessy should not be
considered apart from the Supreme Court’s other anti-black decisions from the post-bellum era, which reflected a “cumulative weakening in the resistance to racism.”324 (Dred Scott also may have had continuing ripples
War “clearly led to the demise of the constitutional doctrines embraced by” the majority justices in
Dred Scott); see alsoKLARMAN,JIM CROW,supra note 43, at 60 (asserting, regarding the Plessy era,
that “more favorable Court rulings, even if enforceable, would not have appreciably alleviated the oppression of southern blacks”).
319. See, e.g., WOODWARD,supra note 1, at 54 (noting the influence on national attitudes about
race of the U.S. assumption of control after 1898 of over eight million “people of the colored races” in the Caribbean and Pacific).
320. See, e.g., GOLDSTONE,supra note 1, at 169 (“Plessy, then, was a fulcrum, a point of departure
for southern states, immensely significant in the struggle for equal rights.”); HIGGINBOTHAM,supra
note 1, at 115 (contending that Plessy “resulted in decades of blatant segregation of blacks in public settings” such that “the racial hierarchy was intensified and expanded, and segregation was given a false patina of judicial legitimacy”); WOODWARD,supra note 1, at 51–56 (noting the Supreme Court’s
failure to support civil rights, including in Plessy, as one of several important factors in the South’s “adoption of extreme racism”).
321. WOODWARD,supra note 1, at 7.
322. In his dissent in Plessy, Justice Harlan had intuited that the decision would have such an effect.
See Plessy v. Ferguson, 163 U.S. 537, 560 (1896) (Harlan, J., dissenting) (predicting that the ruling
would “encourage . . . state enactments [] to defeat the beneficent purposes” of the Reconstruction Amendments); see also JOHN HOPE FRANKLIN, RACIAL EQUALITY IN AMERICA 65 (1976) (contending that Plessy spurred more segregation laws between 1898 and 1907 affecting public transportation and also the extension of segregation laws in other areas); HIGGINBOTHAM,supra note
1, at 37 (“Plessy provided a catalyst for states to enforce segregation and inequality well beyond public accommodations.”).
323. Justice Harlan had also intuited this consequence. See Plessy, 163 U.S. at 560 (Harlan, J., dissenting) (predicting that the decision would “stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens”).
324. See GOLDSTONE,supra note 1, at 170 (noting that, while Plessy was unremarkable in the
of influence in the survival of notions of black inferiority.) Considering the series as a whole makes the lack-of-causation claim too counter- intuitive to expect that anyone but proponents of that position should bear the burden of persuasion. And scholars who have raised doubts about the deleterious consequences of Plessy cannot disprove its influence.325
Second, causation can easily be seen as a red herring. Based on longstanding principles that apply every day in criminal courts across the nation, complicity liability does not require causation.326 In criminal law,
we do not absolve the aider and abettor for lack of proof that his encouragement of the target crime induced the principal actor.327 By
encouraging the target offense, the accessory effectively steps into the shoes of the principal.328 Likewise, while the rule has critics and some
states dissent, the accessory becomes fully liable for any other crimes of the principal that are the natural and probable consequence.329 Applying
those principles to Dred Scott and Plessy, the target offense was the creation of the racial hierarchy and state-mandated segregation. The Supreme Court authorized and encouraged those outcomes and thereby became institutionally responsible. The natural and probable consequence was the deprivation and damage inflicted on African Americans not only through segregation but through the racial prejudice and hatred that it fomented. From this perspective, the argument that all of the segregation and the associated injuries would have happened anyway—even were it persuasive—is irrelevant.
differently); WOODWARD,supra note 1, at 53.
325. Scholars who doubt Plessy’s impact have relied in part on the inability to prove the contrary position. See, e.g., KLARMAN,JIM CROW,supra note 43, at 48 (“measuring the effects of counterfactual
judicial rulings is a daunting task”); LOFGREN,supra note 291, at 203–04 (suggesting that Plessy may have
been one among several factors but arguing that proponents of that view cannot prove it).
326. See JOSHUA DRESSLER,UNDERSTANDING CRIMINAL LAW 472 (7th ed. 2015) (“A secondary party is accountable for the conduct of the primary party even if his assistance was causally
unnecessary to the commission of the offense.”).
327. See id. (“S is guilty of an offense as an accomplice even if, but for his assistance, P would have committed the offense anyway.”).
328. See id. (“The absence of a causation requirement is premised on the underlying rationale . . . that accomplice liability is derivative in nature.”).
329. See id. at 479 (“At common law, and today in most jurisdictions, ‘a person encouraging or facilitating the commission of a crime [may] be held criminally liable not only for that crime, but for any other offense that was a ‘natural and probable consequence’ of the crime aided and abetted.’”).
C. The Argument that Confession and Apology Would Foster