# Barrows v. Jackson > Supreme Court of the United States · June 15, 1953 · 346 U.S. 249 URL: https://www.frixlaw.com/law-library/cases/9420984 ## Case - **Full name:** BARROWS Et Al. v. JACKSON - **Court:** Supreme Court of the United States - **Decided:** June 15, 1953 - **Citations:** 346 U.S. 249; 73 S. Ct. 1031; 97 L. Ed. 2d 1586; 97 L. Ed. 1586; 1953 U.S. LEXIS 1902 - **Precedential status:** Published - **Opinion:** Dissent by Vinson - **Judges:** Minton, Vinson, Reed, Jackson - **Cited by:** 784 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9420984 ## How later opinions describe it (automated extraction) - stating that “a person cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation” but “this principle has no application to the instant case in which respondent has been sued for damages ... and ... a judgment against respo… - concluding that a white landowner has standing to assert rights of black individuals to challenge racially restrictive covenant that only applied to landowners and thus rendered it “difficult if not impossible for the persons whose rights are asserted to present their grievanc… - stating that one reason for this rule “is that the state court, when actually faced with the question, might narrowly construe the statute to obliterate the objectionable feature, or it might declare the unconstitutional provisions separable[]” - holding that state court enforcement of a trust that discriminates on gender is state action - holding that a litigant may have standing to bring suit on behalf of another where that person’s constitutional rights will be impaired, and the litigant is the “only effective adversary” ## Opinion text Mr. Chief Justice Vinson, dissenting. This case, we are told, is “unique.” I agree with the characterization. The Court, by a unique species of *261 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 ignores, a proposition which I thought was made plain in the Shelley case. 1 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.” 2 *262 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 arid 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. *263 I turn, first, to the matter of our power to decide this case. The majority states the issue: “. . . May respondent, 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”; 3 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 4 which should stay this Court from deciding *264 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 who has standing to raise the issue. 5 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 *265 amorphous class, is the victim of the unconstitutional discrimination of which she complains. 6 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 *266 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. 7 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 can *267 not surmount the hurdle of our well-established rule by-proceeding with an argument which carries 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 *268 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 tó 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. *269 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. 8 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. Shelley v. Kraemer, 334 U. S. 1 (1948). The state action which we struck down was epitomized in this language, 334 U. S., at 19 : “We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. It is clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners *262 would have been free to occupy the properties in question without restraint. “These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. . . .” Compare Montgomery Building & Construction Trades Council v. Ledbetter Erection Co., 344 U. S. 178, 179 (1952); United Public Workers v. Mitchell, 330 U. S. 75, 86 (1947). The principle derives, of course, from the nature of the judicial power conferred by Art. Ill of the Constitution. At a very early stage in this Court’s history, Mr. Chief Justice Marshall put the matter thus: “. . . The article does not extend the judicial power to every violation of the constitution which may possibly take place, but to ‘a case in law or equity,’ in which a right, under such law, is asserted in a Court of justice. If the question cannot be brought into a Court, then there is no case in law or equity, and no jurisdiction is given by the words of the article. . . .” Cohens v. Virginia, 6 Wheat. 264, 405 (1821). And see the discussion of this principle and its ramifications in Mr. Justice Brandéis’ concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 341 (1936). Mr. Justice Frankfurter, concurring in Coleman v. Miller, 307 U. S. 433, 460 (1939), sets forth the basis of the principle which I believe the Court has failed to observe today: “In endowing this Court with 'judicial Power’ the Constitution presupposed an historic content for that phrase and relied on assumption by the judiciary of authority only over issues which are appropriate for disposition by judges. . . . “. . . It is our ultimate responsibility to determine who may invoke our judgment and under what circumstances. . . . The scope and consequences of our doctrine of judicial review over executive and legislative action should make us observe fastidiously the bounds of the litigious process within which we are confined. No matter how seriously infringement of the Constitution may be called into question, this is not the tribunal for its challenge except by those who have some specialized interest of their own to vindicate, apart from a political concern which belongs to all. Stearns v. Wood, 236 U. S. 75 ; Fair-child v. Hughes, 258 U. S. 126 . “We can only adjudicate an issue as to which there is a claimant before us who has a special, individualized stake in it. One who is merely the self-constituted spokesman of a constitutional point of view can not ask us to pass on it. . . .” Tyler v. Judges of the Court of Registration, 179 U. S. 405 (1900), 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: “The prime object of all litigation is to establish a right asserted by the plaintiff or to sustain a defence set up by the party pursued. Save in a few instances where, by statute or the settled practice of the courts, the plaintiff is permitted to sue for the benefit of another, he is bound to show an interest in the suit personal to himself, and even in a proceeding which he prosecutes for the benefit of the public, as, for example, in eases of nuisance, he must generally aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens.” 179 U. S., at 406 . This historic view has been voiced again and again and applied in various situations down through the decades. See, e. g., Lampasas v. Bell, 180 U. S. 276 (1901); Cronin v. Adams, 192 U. S. 108 (1904) ; The Winnebago, 205 U. S. 354 (1907); Rosenthal v. New York, 226 U. S. 260 (1912); McCabe v. Atchison, T. & S. F. R. Co., 235 U. S. 151 (1914); Jeffrey Manufacturing Co. v. Blagg, 235 U. S. 571 (1915); Sprout v. City of South Bend, 277 U. S. 163 (1928); Tileston v. Ullman, 318 U. S. 44 (1943); Gauge Lumber Co. v. Rowley, 326 U. S. 295 (1945); Bode v. Barrett, 344 U. S. 583 (1953). Similarly, I think that respondent’s reliance, in her brief, on Buchanan v. Warley, 245 U. S. 60 (1917), 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. Similarly, in Pierce v. Society of Sisters, 268 U. S. 510 (1925), upon which the majority relies, a private school challenged a state law forbidding private education on the theory that the statute unreasonably abridged its (the school’s) property rights. It was the assertion of the school’s property rights which the Court considered in determining the validity of the statute. See Mr. Justice Stone dissenting in United States v. Butler, 297 U.S. 1, 78-79 (1936). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9420984. Public record. Not legal advice.