On May 3, 1948, the U.S. Supreme Court issued its landmark decision in the case of Shelley v. Kraemer, prohibiting the government from enforcing discriminatory agreements meant to keep members of racial or ethnic groups out of given neighborhoods.
On the face of it, there was nothing especially “Jewish” about Shelley v. Kraemer. Neither the black plaintiff, J.D. Shelley – who had contracted to buy a home in the Fairground district of St. Louis, Missouri, only to find the purchase blocked by a neighborhood organization whose members had pledged in 1911 not to sell to “Negroes or Mongolians” – nor the defendants, Fern Kraemer (whose parents had signed the pledge) and her husband, Louis, were Jewish. But the case had important implications for American Jews, who, even in post-war America, still found themselves locked out of communities that considered them undesirable.
Embarrassingly close to home
Restrictive covenants were pervasive in mid-20th century America. According to Stephen Grant Myer, author of a book on racial segregation, three of the Supreme Court’s nine sitting justices, for example, did not participate in the hearings or ruling on Shelley v. Kraemer because they themselves lived in homes that were party to racial restrictions.
J.D. Shelley, his wife and their six children had moved north to St. Louis from Starkville, Mississipi, in 1930, seeking a better life, free of racial violence. In 1945, they decided to purchase a modest home at 4600 Labadie Ave. But the neighborhood association got wind of the deal and sued to have it annulled.
A lower court in Missouri ruled against the motion, but its decision was overturned by the state supreme court, which deemed the discriminatory covenant legal, because it was a purely private agreement. The St. Louis NAACP prevailed upon the Shelley family to appeal to the U.S. Supreme Court, where it was combined with three other similar cases that raised similar constitutional issues.
Evidence of the importance of the case to the organized Jewish community can be found in the amicus curiae brief filed by four Jewish organizations – which included the American Jewish Committee and the ADL (then part of B’nai B’rith) – arguing on behalf of the Shelleys’ right to complete the purchase.
The brief reviewed the history of restrictive covenants, explaining that it wasn’t just blacks who were their victims. It referred, without elaborating, to a case outside Washington, D.C., where homeowners anxious to keep out Jews, “petitioned the Maryland court for a decree directing a non-Jewish wife to oust her Jewish husband from their jointly owned home. This is the reduction ad absurdum to which racial restrictive covenants lead.”
A bunch of Jewish lawyers
The arguments on behalf of the plaintiffs were opened by Philip B. Perlman, the U.S. solicitor general – whose office represents the federal government before the Supreme Court. Perlman, an appointment of President Harry Truman, and the first Jew to hold the office, was an aggressive proponent of civil-rights litigation. According to Seth Waxman, himself the U.S. solicitor general during the Clinton years, “Shelley was the first time the United States had gone on record in the Supreme Court broadly condemning all manifestations of racial discrimination.”
The brief prepared by Perlman’s office, however, left off the names of the four government lawyers – all of them Jewish – who had written it. Years later, Perlman’s deputy Arnold Raum told an interviewer that it was his boss who had ordered the removal of the names from the document. According to Raum, who was himself Jewish, it was "bad enough that Perlman’s name has to be there, to have one Jew’s name on it, but you have also put four more Jewish names on. That makes it look as if a bunch of Jewish lawyers in the Department of Justice put this out."
Oddly, the court’s unanimous, 6-0 ruling, written by Chief Justice Fred Vinson, though based on the post-Civil War 14th Amendment, did not declare residential restrictive covenants unconstitutional. Instead, it declared illegal the role of the state in enforcing such covenants. The state supreme court, it said, had violated the 14th Amendment when it ruled to uphold the agreement that barred the Shelleys from buying a home on Labadie Ave.
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