Arguing for ratification of the U. S. Constitution in 1788, James Madison famously noted that men are not angels; if they were, government would not be necessary. In the history of the U.S. Supreme Court, judges likewise are not angels. If they had been, they would make no mistakes in interpreting the Constitution. Lawrence Goldstone, a constitutional scholar, journalist, and author of fiction and non-fiction books, shows in this brief survey just how mortal and fallible judges can be. Playing the role of prosecutor, he files suit against a whole generation of Supreme Court justices for making racial discrimination legal, and socially acceptable, for more than a half-century.

Opening with a graphic account of the Sam Hose lynching in Georgia in 1899, Goldstone illustrates the worst results of what he sees as a long pattern of judicial error and unabashed racism during the Gilded Age. He then reverts to where it all began—the Taney court—and gives a tour of every important case involving civil rights from Scott v. Sandford (1857) to Giles v. Harris (1903). He brings charges against each judge individually for his role in helping to create or sustain Jim Crow. Few escape indictment. Even the venerable John Marshall Harlan, who was otherwise ahead of his time on civil rights issues, gets spanked for failing to see blacks as “inherently equal” to whites (168).

The author begins his case by stating the obvious: blacks were treated with a different standard under the law than were whites during the Jim Crow era. He then poses the question, how much blame does the Supreme Court deserve for this injustice? He argues that the individual judges, to varying degrees, deserve more than historians have generally given them, because they were uniquely positioned within the American constitutional system to prevent or correct the problem. Moreover, he presents evidence that they did not merely neglect to protect blacks, but actually went out of their way to devise new and tortured interpretations of the Fourteenth Amendment to ensure discrimination against blacks. In so doing, they were guilty, he says, of “legislating from the bench” (126). He avoids using the currently popular oxymoron conservative activism to describe this judicial behavior (the publisher is not so careful in one of its promotional inserts), although he clearly implies it on pages 126 and 199. He insinuates that some of these judges were deliberately sinister in their treatment of blacks, whereas others merely possessed inferior legal minds and were bound to rule incorrectly.

Technically, however, what the Gilded Age judges did in rendering its many decisions on the Fourteenth Amendment and the Civil Rights Acts was regressive, not “conservative” (126). Was it judicial activism? Of a type, yes. Was it wrong? From the vantage point of the twenty-first century, it seems so morally. In the late nineteenth and early twentieth centuries, however, it was both socially acceptable and politically correct. Whether it was legally sound is in the eye of the beholder now just as it was then. The court's job was not to adjudicate morality or reflect popular beliefs but to determine constitutionality and legality. In doing that, the defense concedes it surely missed the spirit of the law in favor of supposedly upholding the letter of the law in many of these civil rights cases. However, to impute diabolical motives to these judges is unwarranted. Not all Supreme Court justices are equal in intellect and ability, and some of these Gilded Age judges were not the best choice for wearing the ermine. In such cases, the presidents who appointed and the senators who confirmed them deserve blame for putting them on the bench.

Goldstone repeatedly allows that the Court merely gave the white majority in America what it wanted at that time. Popular sentiment among whites was indeed overwhelmingly against enforcing the Fourteenth and Fifteenth Amendments and the Civil Rights Acts in the spirit that those amendments and laws were intended by their framers. Most whites believed white supremacy to be natural, normal, and therefore morally right. Uneducated common whites believed this, as did most political leaders, professors, and theologians, and they expressed their agreement openly and routinely. They cherished their own race's heritage, accomplishments, and superior position in both domestic and world affairs. They did not want their way of life, their racial attitudes, or their understanding of morality challenged, jeopardized, or overturned by nine men wearing robes in Washington, DC. These judges knew the prevailing belief system, were careful to respect it, and read the law through the prism of it, because most of them personally believed in white supremacy themselves.

Zeitgeist—a mysterious force that pervades and an invisible hand that guides the thinking of a whole generation—is monumentally important here. Goldstone does not use the term, but he discusses the concept throughout the chapter on social Darwinism (61–72) and in the epilogue (195–99), as well as on pages 127, 147, 149, 166–67, and 185. He dismisses it as merely an excuse for bad behavior and a “perverse interpretation” (101) of the law. Oddly, he uses a former abolitionist and egalitarian, Reverend Henry Martyn Field, who was kin to two of the accused Supreme Court justices, to undermine his thesis. Field was a prime example of a man who frankly proclaimed the overarching racial view of the day. He believed that blacks were generally “a simple and docile race” (147) best suited for menial labor and, consequently, for second-class citizenship. Goldstone acknowledges, “One would have been hard-pressed to find more than a tiny minority of American whites in the 1890s who did not believe black people were as the reverend described” (147). Moreover, belief in white supremacy was not merely an American phenomenon but was globally ubiquitous. It encompassed a whole world view and way of life. It also provided the intellectual framework by which the most scientifically and technologically advanced racial group on the planet was able to make sense of the world it dominated during this age of industrialization and imperialistic expansion. Does this fact absolve these American judges from all blame? No, but it does provide a historical rationale for their decisions.

These judges were subject to the spirit of their times just as we all are. To expect that they would see the inflammatory civil rights issues of their day in a radically different way than did millions of their fellow whites is to expect these mere mortals to have behaved as angels. Could they have been heroes? In theory, yes; they could have been the pioneers taking the arrows of scorn for being out of step with their times. However, to criticize them for not acting heroically is unfair. Should historians scrutinize their decisions and the legal and philosophical methods they used to arrive at them? Of course. However, is it wise to lay the blame for all the violations of human rights such as the Sam Hose lynching at their doorstep? No. Do they deserve some blame? Indirectly, yes. The failure of these federal judges to resist the Zeitgeist of white supremacy had the effect of giving tacit approval to such local crimes. Far more blame, however, should be attributed to the individuals who carried out those crimes than to the judges who had no jurisdiction over those cases.

Although specialists will not find much new information here, they and lay readers alike will appreciate the helpful explanations of otherwise esoteric legal jargon, and most importantly, the fast-paced narrative that makes this book a page-turner. For a small book with few sources cited, Inherently Unequal is surprisingly thorough. Whatever the shortcomings of its analytical perspective, its account of the subject is authoritative.