Constructing Separate and Unequal Courtrooms

Federal reform transformed civil and criminal litigation in the early 1940s. The new civil rules sought to achieve adversarial balance as it afforded litigants, virtually all white, with powerful discovery tools. In contrast, the new criminal rules denied defendants, often litigants of color, any power to discover information. Instead, the new criminal rules emboldened the prosecutor to bring charges and control what facts to withhold from or share with the defendant. An essential feature of the criminal template’s designto insert a white gatekeeper with unreviewable discretion who could distribute benefits and burdens across racial lineswas an established Jim Crow strategy to maintain racial order.

This Article explores the significance of drafting the rules of procedure within the social and political forces of Jim Crow. In this assessment, the Article finds that the most influential of the criminal template’s authors embraced Jim Crow norms: one lectured that Black people were predisposed to criminality; one authored a state Supreme Court decision that opined whites, but not Black people, had respect for the law; and one issued judicial opinions lauded by segregationists.

This Article contends that federal reform, deeply influenced by the entrenched norms of the time, wrote race into procedure and contributed to the construction of separate and unequal courtrooms. The Article finally observes that our state and federal courtrooms still operate pursuant to key features of this Jim Crow blueprint.