Palmer v. Thompson/Concurrence Burger

by Warren E. Burger

United States Supreme Court

403 U.S. 217

Palmer  v.  Thompson

 Argued: Dec. 14, 1970. --- Decided: June 14, 1971

Mr. Chief Justice BURGER, concurring.

I join the opinion of Mr. Justice BLACK, but add a brief comment.

The elimination of any needed or useful public accommodation or service is surely undesirable and this is particularly so of public recreational facilities. Unfortunately the growing burdens and shrinking revenues of municipal and state governments may lead to more and more curtailment of desirable services. Inevitably every such constriction will affect some groups or segments of the community more than others. To find an equal protection issue in every closing of public swimming pools, tennis courts, or golf courses would distort beyond reason the meaning of that important constitutional guarantee. To hold, as petitioners would have us do, that every public facility or service, once opened, constitutionally 'locks in' the public sponsor so that it may not be dropped (see the footnote to Mr. Justice BLACKMUN's concurring opinion), would plainly discourage the expansion and enlargement of needed services in the long run.

We are, of course, not dealing with the wisdom or desirability of public swimming pools; we are asked to hold on a very meager record that the Constitution requires that public swimming pools, once opened, may not be closed. But all that is good is not commanded by the Constitution and all that is bad is not forbidden by it. We would do a grave disservice, both to elected officials and to the public, were we to require that every decision of local governments to terminate a desirable service be subjected to a microscopic scrutiny for forbidden motives rendering the decision unconstitutional.

Mr. Justice Goldberg, concurring in Griswold v. Connecticut, supra, 381 U.S., at 492, 85 S.Ct., at 1686, said:

'(T)he Ninth Amendment shows a belief of the Constitution's authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive.' ^[1]

We need not reach that premise in this case. We deal here with analogies to rights secured by the Bill of Rights or by the Constitution itself. Franklin, The Ninth Amendment as Civil Law Method and its Implications for Republican Form of Government, 40 Tulane L.Rev. 487, 490-492 (1966); Redlich, Are There 'Certain Rights * * * Retained by the People?', 37 N.Y.U.L.Rev. 787, 810 812 (1962); Black, The Unfinished Business of the Warren Court, 46 Wash.L.Rev. 3, 37-45 (1970); Kutner, The Neglected Ninth Amendment: The 'Other Rights' Retained by the People, 51 Marq.L.Rev. 121, 134-137 (1968).

'The Fourteenth Amendment and the two escorting amendments establish a principle of absolute equality, an equality which is denied by racial separation or segregation because the separation in truth consecrates a hierarchy of racial relations, and hence permits inequality.' ^[2]

'(T)o the extent that the municipality had voluntarily undertaken to provide swimming facilities for its citizens, making it unnecessary for the private sector to develop equally adequate facilities, the closing of the pools has insured that racial segregation will be perpetuated.' Our cases condemn the creation of state laws and regulations which foster racial discrimination-segregated schools, segregated parks, and the like. The present case, to be sure, is only an analogy. The State enacts no law saying that the races may not swim together. Yet it eliminates all its swimming pools so that the races will not have the opportunity to swim together. While racially motivated state action is involved, it is of an entirely negative character. Yet it is in the penumbra ^[3] of the policies of the Thirteenth, Fourteenth, and Fifteenth Amendments and as a matter of constitutional policy should be in the category of those enumerated rights protected by the Ninth Amendment. If not included, those rights become narrow legalistic concepts which turn on the formalism of laws, not on their spirit.

I conclude that though a State may discontinue any of its municipal services-such as schools, parks, pools, athletic fields, and the like-it may not do so for the purpose of perpetuating or installing apartheid or because it finds life in a multi-racial community difficult or unpleasant. If that is its reason, then abolition of a designated public service becomes a device for perpetuating a segregated way of life. That a State may not do.

As Mr. Justice Brennan said in Evans v. Abney, 396 U.S. 435, 453, 90 S.Ct. 628, 638, 24 L.Ed.2d 634 (dissenting), where a State abandoned a park to avoid integration:

'I have no doubt that a public park may constitutionally be closed down because it is too expensive to run or has become superfluous, or for some other reason, strong or weak, or for no reason at all. But under the Equal Protection Clause a State may not close down a public facility solely to avoid its duty to desegregate that facility.' Hunter and Reitman went to the verge of that problem. Bush went the whole way. We should reaffirm what our summary affirmance of Bush plainly implied.

Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.

Notes

1. 'Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in a case dealing with a State's infringement of a fundamental right. While the Ninth Amendment-and indeed the entire Bill of Rights-originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the 'liberty' protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments.' 381 U.S., at 493, 85 S.Ct., at 381.
2. Franklin, The Relation of the Fifth, Ninth and Fourteenth Amendments to the Third Constitution, 4 How.L.J. 170, 180 (1958).
3. While the Equal Protection Clause protects individuals against state action, 'the involvement of the State' need not be 'either exclusive or direct.' United States v. Guest, 383 U.S. 745, 755, 86 S.Ct. 1170, 1176, 16 L.Ed.2d 239. 'In a variety of situations the Court has found state action of a nature sufficient to create rights under the Equal Protection Clause even though the participation of the State was peripheral, or its action was only one of several co-operative forces leading to the constitutional violation.' Id., at 755-756, 86 S.Ct., at 1177.