In the 1910s the Supreme Court responsible for Lochner v. United States and Plessy
v. Ferguson supported African American rights in cases such as Bailey v. Alabama and Buchanan v.
Warley. Scholars have struggled to explain how the disparate doctrinal paths of Lochner and Plessy
led to the seemingly equality-friendly cases of the 1910s. Where modern libertarians see liberty of contract countering racism, modern progressives see support for an economic and racial status
quo that did nothing to limit white supremacy on the ground. Stepping away from judicial decisions, this essay looks instead to the writing of Black progressives to understand better the Court’s
context. This essay argues that, unlike the Court and white elites, Thomas Fortune, Ida Wells, and
W.E.B. Du Bois focused on the interdependence of capitalism and racism, stressing the systemic
nature of racial harms across a range of legal and political doctrines. This critique, I argue, helps
us understand better the ways in which the Court’s different doctrines functioned, how they resulted in an anemic response to racist laws, and how we can, today, think more deeply about systemic racism and critiques of current neo-Lochner jurisprudence