1983]

RESIDENTIAL SEGREGATION ORDINANCES

313

Buchanan v. Warley was first argued before the Supreme Court in
April of 1916 before seven justices. The Court then ordered reargu-
ment before a full bench. The significance of the case was well recog-
nized; twelve amicus briefs were filed on both sides. From Baltimore,
City Solicitor Field filed a brief defending the ordinance, while W.
Ashbie Hawkins (who had hoped himself to argue a case challenging
the Baltimore ordinance before the Supreme Court) filed a brief on
behalf of the Baltimore NAACP.142 The case was reargued and the
Court finally rendered a decision in November of 1917. 



The NAACP's litigation strategy almost back-fired. Justice
Holmes prepared a dissent in which he argued that the case should be
dismissed because of its collusive nature. Holmes said: "The contract
sounds so very like a wager upon the constitutionality of the ordinance
that I cannot but feel a doubt whether the suit should be entertained
without some evidence that this is not a manufactured case."143 But
Holmes decided not to deliver his dissent and a unanimous Court held
the Louisville housing segregation ordinance unconstitutional.144

The NAACP's tactic had worked. Justice Day's opinion empha-
sized Buchanan's property right to dispose of his lot as he saw fit.143
Also in the opinion, however, were expressions of concern for the rights
of Negroes. Day found "the difficult problem arising from a feeling of
race hostility" an insufficient basis for depriving citizens of their consti-
tutional rights to acquire and to use property without state legislation
discriminating against them on the sole basis of color.146 From today's
perspective the opinion seems analytically imprecise. The Court inter-
twined Buchanan's right to substantive due process with Warley's right
to equal protection.147 But the opinion served perfectly the NAACP's
purpose. The Supreme Court was afforded a mechanism through
which it could squelch residential segregation laws without overruling
recent precedents that had sustained racial segregation in transporta-
tion and schools.

Nationwide, the black press exulted in the Buchanan decision.148
The Baltimore Afro-American editorialized: "The joy in Bunkville [sic]
when home run Casey came to bat in the final inning of a famous game
with the bases loaded is nothing compared with the rejoicing in Balti-

14Z Buchanan v. Warley, 245 U.S. at 68-69.

143. Schmidt, supra note 74, at 512.

144. Buchanan v. Warley, 245 U.S. 60 (1917).

145. Id. at 79.

146. Id. at 80-82.

147. Schmidt, supra note 74, at 517-23.

148. Id. at 508.