Hernandez v. Texas: Legacies of Justice and Injustice

This paper was prepared for the Hernandez v. Texas at Fifty conference at the University of Houston law center in November 2004 commemorating the 50th anniversary of Hernandez v. Texas, a U.S. Supreme Court decision decided within days of Brown v. Board of Education. The Supreme Court's 1954 decision in Hernandez v. Texas was a legal landmark for Mexican Americans in the United States. In that decision, the nation's highest court ruled that the systematic exclusion of persons of Mexican ancestry from juries in Jackson County, Texas violated the Constitution. Even though Mexicans comprised more than 10 percent of the adult population, no person of Mexican ancestry had served on a jury in that county in the previous 25 years. That discrimination against Mexican Americans existed in the United States was no surprise to the greater Mexican community in 1954, which had long been relegated to second class citizenship in much of the Southwest. Housing and job segregation was common. Mexican Americans as a group were well aware that the United States had conquered Mexico's northern territories in a war of aggression, and that persons of Mexican ancestry had suffered mass deportations during the Great Depression, were beaten on the streets of Los Angeles by members of the armed forces in the infamous Zoot Suit riots during World War II, experienced exploitation and abuse through the Bracero Program that brought temporary workers from Mexico to the United States from the 1940s to the 1960s, and lived through raids and mass deportations in Operation Wetback in 1954, the very same year that Hernandez was decided. Although not alone among the states in discriminating against persons of Mexican ancestry, Texas had earned a reputation for its multiracial caste system. Indeed, in negotiating the agreements with the United States creating the Bracero Program, the Mexican government initially insisted on barring temporary workers from Texas because of the notorious discrimination against persons of Mexican ancestry in the Lone Star state. With Hernandez v. Texas, the law began to recognize the social reality of Mexican Americans in the United States, a development that occurred later than it did for other minority groups. A unanimous Supreme Court, in an opinion by Chief Justice Earl Warren, who also authored the unanimous opinion in Brown v. Board of Education, ruled that the Equal Protection Clause of the Fourteenth Amendment barred the systematic exclusion of persons of Mexican ancestry from juries, one of the institutions often identified as exemplifying the United States' commitment to democracy. As a legal matter, the Court only found that Mexican American citizens could not be barred as a group from jury service. However, the Court's decision meant much more than that. This paper highlights two important legacies of Hernandez v. Texas. First, as other commentators have observed, the Court's decision represented a critical inroad on the commonly-understood view that the Equal Protection Clause of the Fourteenth Amendment only protected African Americans. Until 1954, this narrow understanding had worked to the detriment of Mexican Americans seeking to vindicate their constitutional rights. The legal challenge to the Black/white paradigm of civil rights ultimately triumphed, with the Equal Protection guarantee now protecting all (including whites), not just some, races from invidious discrimination. The Court in Hernandez v. Texas thus continued the gradual expansion of the Equal Protection Clause. Although this important aspect of Hernandez v. Texas is well recognized, not much attention has been paid to why the Supreme Court made such an important ruling at this time in U.S. history. The author of the opinion for the Court, Chief Justice Earl Warren, a native son of California, knew well from personal and professional experience of the discrimination against Mexican Americans, in the Golden State. Indeed, the World War II period - when Earl Warren was California's Attorney General and later Governor - was one of the most concentrated and well-publicized periods of anti-Mexican violence in California in the entire twentieth century. The Mexican American community reacted with outrage to what it perceived as a racially biased law enforcement and criminal justice system. Earl Warren's experience with the Mexican American civil rights struggle undoubtedly contributed to the timing of the Court's decision in Hernandez v. Texas. Appointed as Chief Justice of the Supreme Court in 1953, Earl Warren previously had served as Attorney General and Governor of California, a racially diverse state that had experienced more than its share of racial tensions during his life. His experience as a political leader at the center of several high profile racial controversies no doubt allowed him to have a better fundamental understanding of the complexities of racial discrimination against Mexican-Americans. This experience helps explain how Chief Justice Earl Warren could write an informed opinion like Hernandez v. Texas. Second, the paper analyzes Hernandez v. Texas's important unfinished business. The Supreme Court concluded that the systematic exclusion of Mexican Americans from petit and grand juries violated the Equal Protection Clause of the Fourteenth Amendment, which logically extended previous case law dating back to the nineteenth century that prohibited the exclusion of African Americans from juries. The jury systems in place throughout the United States, however, include a variety of color-blind - and, to this point, entirely legal - mechanisms that in operation limit the number of Latina/o jurors and ensure that juries in localities across the country fail to represent a cross section of the community. Citizenship and English language requirements for jury service, as well as the disqualification of felons, bar disproportionate numbers of Latina/os from serving on juries. In addition, the Supreme Court has sanctioned the use of peremptory challenges to strike bilingual jurors, thus allowing parties to remove bilingual Latina/os from juries on ostensibly race neutral grounds. The end result is that Latina/os are significantly underrepresented on juries. Racially skewed juries undermine the perceived impartiality of the justice system and the rule of law. Cynicism about the law and its enforcement, already a problem among Latina/os and other minority communities, creates the potential for domestic unrest. The violence following the Rodney King verdict in May 1992 in South Central Los Angeles exemplifies the potentially explosive impacts of a justice system viewed by minorities as racially-biased. In sum, the promise of full representation of Mexican Americans on juries in Hernandez v. Texas has yet to be realized. In that way, the legacy of Hernandez v. Texas resembles that of Brown v. Board of Education, perhaps the most heralded Supreme Court decision of the twentieth century - the mandate in both path-breaking cases remains to be achieved. Racially disparate results continue despite the legal prohibition of de jure discrimination.