Shelley v. Kraemer: The Case That Started White Flight

AS MANY OF America’s largest cities sink into a slough of desolation, crime and vandalism, it might be instructive to look for causes in the dusty files of a long forgotten court case. Prior to 1958 deeds to desirable real property generally included a clause or covenant restricting the sale of the land and/or house to Caucasians, the now somewhat passe’ term for whites. Since buyers and sellers transacted with the full knowledge of these restrictions, they were binding on all and enforceable in state courts. (ILLUSTRATION: Jewish attorney Maurice Sugar)

Leaders of America’s Unassimilable Minorities had long rankled at these legal constraints. Spearheaded by Jews, who were soon to comprise twenty percent of America’s legal profession, the desegregation of housing raised the curtain on the civil rights revolution, which has now shifted the locus of political power from the Majority to the minorities.

The case that upset the applecart was Shelley v. Kraemer (1948) in which the Supreme Court ruled that racial covenants were no longer enforceable at law in state or federal courts. Shelley was a case out of St. Louis and had been combined with a Michigan legal hassle known as Sipes v. McGhee. In both state courts the traditional racial restrictions had been upheld under the rule that such agreements were merely private agreements, not subject to the 14th Amendment’s prohibition against denial by the state of equal protection of the laws. To the Supreme Court, however, such agreements were unconstitutional, even though the covenants had as long a life as the Constitution itself. The petitioners in both cases were blacks, who were not exactly friendless, since they had behind them a formidable army of legal and political talent, plus seemingly unlimited funding. Sipes had the NAACP with its two leading Negro attorneys, Thurgood Marshall and Spottswood Robinson. Also present were Maurice Sugar and Morton Eden, then the big legal guns of the United Automobile Workers. The black and Jewish legal alliance was strengthened by Alan Brown and Ben Safir, representing the American Jewish Congress, which by 1974 (according to Time) had an annual budget of over $2 million for various forms of anti-Majority barratry. Another party was the National Lawyers Guild, represented by Ernest Goodman, who in 1975 turned up in a Senate Judiciary Subcommittee inquiry into subversive activities in the navy. While advocating integration for Detroit, Goodman chose to live in Ontario, Canada.

When the two cases were combined by the Supreme Court they brought forth an even larger bevy of shyster luminaries. Julius Goldstein of the Anti-Nazi league to Champion Human Rights showed up, as did O. John Rogge and Mozart Ratner of the National Lawyers Guild, together with Lee Pressman, David Rein, Victor Rabinovitz, John Abt, Leonard Boudin, Isadore Katz, Sam Rothbard, M. H. Goldstein. Harrv Sacher, Dave Scribner, Matt Silverman, Harry Weinstock and Ralph Hellstein, the two last representing the C.I.O. In regard to the C.I.O. attorneys, one wonders if the Majority labor skates in the mills and factories were aware they were paying their dues to help finance the destruction of the value of their homes.

Obviously unafraid of legal overkill, Irv Panzer and Dick Solomon jumped into Shelley for the American Veterans’ Committee, a liberal-minority agglomeration of ex-World War II soldiers. Will Maslow and Shad Polier were on deck for the American Jewish Congress, as they have been in all subsequent civil rights cases. Joseph Proskauer, later a much publicized New York judge, was also aboard, along with Jacob Grumet and Newman Levy of the American Jewish Committee. The American Civil Liberties Union had as its reps Charles Abrams, Harold Kahen, Victor Rotman and Fred Sussman.

The usual strategy in these civil liberties cases was, and is, to reel in on the side of the plaintiffs a few Majority renegade celebrities, fronting for some well-known organizations. In Shelley the fronts were Alger Hiss and Phillip Jessup, standing in for the American Association for the United Nations.

The Majority defendants in Shelley, aided by local property owner associations with little resources, were badly outgunned. Ironically, they were defended by Solicitor General Perlman, a minority member, and by Attorney General Tom Clark, who later became a leading Supreme Court liberal.

Black lawyers representing the NAACP in civil rights cases usually get more media attention than their ever present collaborators. Jews, although they usually supply the winning punch, try not to become too conspicuous. This strategy, as the long-time head of the NAACP’s legal team, Jack Greenberg, tells it, pays off because it camouflages the true identity of the main forces behind integration. The strategy also calls for the minority plaintiff to take his case before the federal court. A federal judge is appointed for life, and is thereby immune to the wrath of the voting Majority. State judges, most of whom are elected, are far more likely to consider the wishes of the voters.

Housing desegregation cases triggered a massive migration from the cities to the suburbs. Although it has meant untold suffering and financial loss to the Majority members who did not move in time or could not afford to move, it has proven very profitable to the minorityites who initiated integration. They are not only the lawyers behind it, but also make up a sizable component of the mortgage brokers, real estate dealers and home builders who profit from it.

Another Instaurationist lawyer adds a few personal notes to this discussion.

My neighborhood was created close to the center of a large Southern city when it was still a small town about forty to fifty years ago. All the houses were protected by restrictive covenants against occupancy by Negroes, except as servants. This allowed small and large houses to be built side by side, since there was no fear of blacks buying a less expensive home. The beneficial social effects of having rich and not-so-rich whites living together and having their children walking to school together are obvious. The houses, pretentious and unpretentious, were well maintained, so the rich judge in the big white house on the corner didn’t mind the two old maid librarians living next door. Luckily my neighborhood was saved from becoming a typical city slum because ninety percent of the homes are still owned by the people who bought them new in the 30s. These older people have already educated their children, so they are not affected by the decline of city schools caused by integration. As the owners die, young white couples, chiefly lawyers, doctors, professors, etc., are moving in and renovating them. These younger people are generally wealthy liberals who take a snobbish pride in living inside the city rather than in the newer suburbs created by white flight. Of course, they do not choose to live in other inner city areas that have become black jungles. Blacks will not pay $40,000 for an old house that needs to be modernized. Other white neighborhoods have not been so fortunate. Where the houses were newer and smaller, many were sold by younger couples who had children they preferred to educate in white suburban schools. As many others were converted to rental units, the blacks came in the 50s and 60s.

Several new subdivisions in this city, built in the last ten to fifteen years, have been destroyed by integration. Young couples have seen a new $35,000 house become a $25,000 house in an integrated neighborhood at a time when property values were generally increasing at ten percent a year. This didn’t happen in my neighborhood because restrictive covenants allowed the area to become settled and all white. Builders and real estate brokers are of no help in this matter. They couldn’t care less as long as they sell a new house for $40,000 or collect their commission. Many builders and brokers actually favor integration since fleeing whites have to buy again in a new subdivision outside town. Nothing stimulates the housing market like relocation.

Some homeowners lose everything as a result of integration. It is as destructive as dropping a bomb on a city, but no one has the courage to say so. The combined effect of judicial invalidation of racial protective covenants and integrated public schools have set in motion the exodus of millions of families. The loss in property values, needless construction of entire new suburbs and bedroom communities farther and farther from the city, the wasted gasoline — all this adds up to a cost that runs into the billions.

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Source: Instauration magazine, November 1977