The United States Supreme Courts 1948 ruling in Shelley v. Kraemer fa

The United States Supreme Court’s 1948 ruling in
Shelley v. Kraemer famously disallowed state courts
from enforcing racially restrictive covenants. Such
covenants are, in essence, private legal obligations
(5) included in the deed to a property requiring that only
members of a certain race be allowed to occupy the
property. Because it prohibited the enforcement of
these covenants, the Court’s decision in Shelley v.
Kraemer is justly celebrated for overturning a key
(10) instrument of housing discrimination. However, while
few would deny that racially restrictive covenants are
unjust, the stated legal rationale for the Shelley
decision has nevertheless proven to be problematic.

The Shelley Court relied on the Fourteenth
(15) Amendment to the U.S. Constitution, which grants
equal protection under the law to all U.S. citizens.
This amendment had long been held to apply to state
actors but not individuals. Shelley did not purport to
alter this. But where, then, was the state action that is
(20) necessary for invoking the Fourteenth Amendment,
given that the restrictive covenants were private
contracts? The Court’s answer was that although the
restrictive covenants themselves were perfectly legal,
judicial enforcement of the covenants violated the
(25) Fourteenth Amendment because responsibility for a
contract’s substantive provisions should be attributed
to the state when a court enforces it. According to this
“attribution” rationale, courts could enforce only those
contractual provisions that could have been enacted
(30) into general law. Because the Fourteenth Amendment
would not have allowed a law that banned members of
a certain race from purchasing property, it followed
from Shelley’s analysis that judicial enforcement of
racially restrictive covenants also was unconstitutional.

(35) Shelley’s attribution logic threatened to dissolve
the distinction between state action, to which
Fourteenth Amendment limitations apply, and private
action, which falls outside of the Fourteenth
Amendment’s purview. After all, Shelley’s approach,
(40) consistently applied, would require individuals to
conform their private agreements to constitutional
standards whenever, as is almost always the case, the
individuals want the option of later seeking judicial
enforcement. Primarily for this reason, neither the
(45) Supreme Court nor lower courts later applied Shelley’s
approach. Courts routinely enforce contracts whose
substantive provisions could not have been
constitutionally enacted by government. For instance,
courts regularly enforce settlement agreements that
(50) limit the settling party’s ability to speak publicly in
various respects, despite the fact that statutory
limitations on the identical speech would represent an
unconstitutional violation of free speech.

Additionally, there is a particularly noxious aspect
(55) ofthe Shelley Court’s analytics—namely, the Court’s
conclusion that racially restrictive covenants
themselves were perfectly legal. The legal rationale
behind the She//ey decision thus failed to target the
genuine problem with racially restrictive covenants:
(60) what was troubling was not the covenants’
enforcement but their substantive content.

1. The primary purpose of the passage is to

(A) question the reasoning behind a particular judicial decision
(B) draw a distinction between private action and state action
(C) defend the way in which scholars and courts have traditionally explained a particular judicial decision
(D) highlight the shortcomings of the U.S. Constitution
(E) extend the rationale offered in a particular judicial decision to additional cases


2. An answer to which one of the following questions would be most relevant to determining whether an action can be classified a "state action" (line 19), as the author uses that phrase in the second paragraph?

(A) What range of people can the action be expected to affect?
(B) To what agent can performance of the action be ascribed?
(C) What principle or principles can be said to govern the action?
(D) In what ways can the action be expected to affect others?
(E) What motivations can be attributed to those performing the action?


3. The author's attitude towards the reasoning offered in the U.S. Supreme Court's decision in Shelley v. Kraemer is most accurately reflected in the author's use of which one of the following phrases?

(A) "famously disallowed" (line 2)
(B) "justly celebrated" (line 9)
(C) "perfectly legal" (line 23)
(D) "consistently applied" (line 40)
(E) "noxious aspect" (line 54)


4. Which one of the following describes an attribution of responsibility that is most analogous to the attribution central to what the author refers to as Shelley's "attribution" rationale (line 28)?

(A) If a trucking company fails to properly inspect its vehicles, the company can be held responsible for any accidents in which those vehicles are involved.
(B) If an individual signs a private contract, that person can be held responsible for the provisions of that contract even if the person did not read or comprehend those provisions.
(C) If a newspaper publishes a columnist's op-ed piece, the newspaper, and not just the columnist, can be held responsible for the content of the piece.
(D) If a person is in a position to rescue someone in peril, but chooses not to do so, that person can be held responsible for any injuries suffered by the person in peril.
(E) If a company discovers that it has manufactured and distributed a faulty product, the company is responsible for issuing a recall of that product.


5. In the second paragraph, the author asks the question, "...where, then, was the state action that is necessary for invoking the Fourteenth Amendment, given that the restrictive covenants were private contracts?" (lines 19-22) primarily in order to

(A) demonstrate the conceptual incoherence of a distinction employed by the Shelley Court
(B) highlight a potentially confusing issue central to understanding the Shelley Court's decision
(C) suggest that the Shelley Court did not properly attend to the facts of the case in its decision
(D) cast suspicion on the motivations of the individual judges who served on the Shelley Court
(E) challenge the presuppositions upon which the Fourteenth Amendment to the U.S. Constitution is based


6. Which one of the following principles is most clearly operative in the author's argument?

(A) If a judicial decision is deemed by legal scholars to be problematic, subsequent courts should refrain from appealing to that decision.
(B) If a private agreement is deemed judicially unenforceable, the substantive content of that agreement should be considered for inclusion in a statute.
(C) If a judicial decision fails to address the most troubling aspect of a practice, then measures should be taken to prevent this practice from continuing in an altered form.
(D) If courts are hesitant to apply the rationale given in a past decision, this should be taken as evidence that the rationale is questionable.
(E) If the rationale given in a judicial decision is found to be controversial, the decision should be supported by offering a new rationale.