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 Forging Rivals

The three decades after the end of World War II saw the rise and fall
of a particular version of liberalism in which the state committed
itself to promoting a modest form of economic egalitarianism while
simultaneously embracing ethnic, racial, and religious pluralism. But
by the mid-1970s, postwar liberalism was in a shambles. While its
commitment to pluralism remained, its economic policies had been
abandoned, and the Democratic Party, its primary political vehicle, was
collapsing. Reuel Schiller attributes this demise to the legal architecture
of postwar liberalism, arguing that postwar liberalism’s goals of
advancing economic egalitarianism and promoting pluralism ultimately
conflicted with each other. Through the use of specific historical
examples, Schiller demonstrates that postwar liberalism was riddled
with legal and institutional contradictions that undermined progressive
politics in the mid-twentieth-century United States.

Reuel Schiller is a professor of law at the University of California,

Hastings College of the Law, where he teaches American legal history,
labor law, and administrative law.
 Cambridge Historical Studies in American Law and Society

Series Editor
Christopher Tomlins, University of California, Berkeley

Previously Published in the Series:

Ely Aaronson, From Slave Abuse to Hate Crime: The Criminalization of Racial
Violence in American History
Stuart Chinn, Recalibrating Reform: The Limits of Political Change
Ajay K. Mehrotra, Making the Modern American Fiscal State
Yvonne Pitts, Family, Law, and Inheritance in America: A Social and Legal History
of Nineteenth-Century Kentucky
David M. Rabban, Law’s History
Kunal M. Parker, Common Law, History, and Democracy in America, 1790–1900
Steven Wilf, Law’s Imagined Republic
James D. Schmidt, Industrial Violence and the Legal Origins of Child Labor
Rebecca M. McLennan, The Crisis of Imprisonment: Protest, Politics, and the
Making of the American Penal State, 1776–1941
Tony A. Freyer, Antitrust and Global Capitalism, 1930–2004
Davison Douglas, Jim Crow Moves North
Andrew Wender Cohen, The Racketeer’s Progress
Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago
Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the
Railroad Revolution, 1865–1920
Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the
Thirteenth Amendment
Robert J. Steinfeld, Coercion, Contract, and Free Labor in the Nineteenth Century
David M. Rabban, Free Speech in Its Forgotten Years
Jenny Wahl, The Bondsman’s Burden: An Economic Analysis of the Common Law
of Southern Slavery
Michael Grossberg, A Judgment for Solomon: The d’Hauteville Case and Legal
Experience in the Antebellum South
 Forging Rivals
Race, Class, Law, and the Collapse of
Postwar Liberalism

REUEL SCHILLER
University of California, Hastings College of the Law
 32 Avenue of the Americas, New York, NY 10013-2473, USA

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781107628335
© Reuel Schiller 2015
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2015
Printed in the United States of America
A catalog record for this publication is available from the British Library.
Library of Congress Cataloging in Publication Data
Schiller, Reuel Edward.
Forging rivals : race, class, law, and the collapse of postwar
liberalism / Reuel Schiller.
pages cm. – (Cambridge historical studies in American law and society)
Includes bibliographical references and index.
ISBN 978-1-107-01226-4 (hardback) – ISBN 978-1-107-62833-5 (paperback)
1. Discrimination in employment – California – History – 20th century – Case
studies. 2. Civil rights movements – California – History – 20th century –
Case studies. 3. Labor unions – California – History – 20th century – Case
studies. 4. Labor laws – United States – History – 20th century. 5. Liberalism –
United States – History – 20th century. 6. United States – Politics and government –
20th century. 7. United States – Race relations – History – 20th century. I. Title.
hd4903.5.u58S27 2014
331.13′30979409045–dc23 2014043433
isbn 978-1-107-01226-4 Hardback
isbn 978-1-107-62833-5 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy of
urls for external or third-party Internet Web sites referred to in this publication
and does not guarantee that any content on such Web sites is, or will remain,
accurate or appropriate.
 For Jane
“You take away the breath I was keeping for sunrise.”
–Pete Townshend
There was something mysterious and smug in the way he spoke,
as though he had everything figured out – whatever he was talk-
ing about. Look at this very most certain white man, I thought. He
didn’t even realize that I was afraid and yet he speaks so confidently.
I got to my feet, “I’m sorry,” I said, “I have a job and I’m not inter-
ested in anyone’s grievances but my own … ”
“But you were concerned with that old couple,” he said with
narrowed eyes. “Are they relatives of yours?”
“Sure, we’re both black,” I said, beginning to laugh.
He smiled, his eyes intense upon my face.
“Seriously, are they your relatives?”
“Sure, we were burned in the same oven,” I said.
The effect was electric. “Why do you fellows always talk in
terms of race!” he snapped, his eyes blazing.
“What other terms do you know?” I said, puzzled.
– Ralph Ellison, Invisible Man (1952)
 Contents

Acknowledgments page xi

Introduction: Legal History and the Death of

Postwar Liberalism 1
1 Forging Postwar Liberalism 13
2 Ed Rainbow’s Problem 48
3 The Phony Commission 81
4 A Tale of Two Propositions 120
5 1966: A Terrible Year for George Johns 158
6 “The Day of the Minstrel Show Is Over” 193
7 Forging Rivals, Shattering Liberalism 220

List of Abbreviations for Archival Sources 257

Notes 261
Index 327

ix
 Acknowledgments

I’ve always liked reading acknowledgments. Not only do they provide

an interesting window into the intellectual provenance of the author,
but they are frequently the only part of a book where the author’s
voice projects clearly, unencumbered by the norms of professional,
“academic” writing. Unfortunately, acknowledgments have developed
norms of their own: a certain order in which people are thanked, the
repetition of certain words of heartfelt gratitude. I’m sure I will fall
into this pattern as well, but there is one rule of acknowledgments that
I’d like to break. I am not going to thank my family last. I am going
to thank them first.
Without the love and support of Jane Williams, and our children,
Naomi and Asa, I doubt this book would have been written. My
family is the nurturing medium in which I live my life, and whatever
successes I’ve had stem from them. I have no doubt that the presence
of Jane, Naomi, and Asa in my life slowed down the writing of Forging
Rivals, and thank goodness it did. It’s painful enough knowing how
much time this project has taken away from time spent with the three
of them. I wouldn’t want to imagine a world in which it had taken
away more.
My parents, Hillel and Barbara Schiller, and my brother, Thomas,
have had a less direct, but no less important impact on this book. I was
fortunate to be raised in a family where a love of history, a commit-
ment to frank discussion, and skepticism of received wisdom were the

xi
xii Acknowledgments

norm. I like to think that the true genesis of this book lies around my
childhood dining room table.
I have received an enormous amount of advice, support, and encour-
agement as I’ve written Forging Rivals, and it is a pleasure to recog-
nize the people who have been so helpful. Chris Tomlins heads this
list. I shudder at the thought of trying to write Forging Rivals without
his thoughtful reading of the manuscript, his incisive, tactful editing
of it, and his confidence in the entire project. I could not have asked
for more in an editor. My friends and colleagues Bill Dodge and Joan
Williams both read the entire manuscript and provided me with pen-
etrating comments. Similarly useful critiques have been provided by
others who have read large chunks of the manuscript: R. B. Bernstein,
Eileen Boris, Joe Grodin, Laura Kalman, Michael Klarman, Nelson
Lichtenstein, Deborah Malamud, Bill Nelson, Karen Tani, and a pair
of anonymous readers for Cambridge University Press. Dan Ernst not
only read large parts of the manuscript, but encouraged me to write it
in the first place. I owe him particular thanks.
I’ve had the privilege of presenting parts of the manuscript, in vari-
ous stages of readiness, at a variety of institutions: New York University
School of Law; the University of Oregon School of Law; the University
of Virginia School of Law; the Center for the Study of Work, Labor, and
Democracy at the University of California, Santa Barbara; the Nihon
University School of Law; the Bay Area Labor History Workshop;
the University of California, Davis, School of Law; and, of course,
my home institution, the University of California, Hastings College
of the Law. My thanks to the participants in these colloquia for their
thoughtful comments and to the people who invited me to enjoy their
intellectual hospitality: Bill Nelson and Dan Hulsebosch, Stuart Chinn
and Tom Lininger, Risa Goluboff, Nelson Lichtenstein, Yasuo Fukuda,
Darien Shanske, and Catherine Powell. I also had the pleasure of pre-
senting a chapter at the 2011 Annual Meeting of the Pacific Coast
Branch of the American Historical Association. My thanks to Chris
Agee for organizing the panel, and to Jim Gregory for his comments.
I’ve had the benefit of bouncing the ideas that animate this book
off the minds of a number of creative thinkers. They include Brian
Balogh, Ash Bhagwat, Mark Brilliant, Bill Gould, Beth Hillman, Bill
Issel, Evan Lee, Sophia Lee, David Levine, Michael Salerno, and Harry
Scheiber. Five people who were participants in the events that the book
 Acknowledgments xiii

chronicles agreed to discuss those events with me: Marion Francois,

Ken Hecht, Ed Howden, the late Walter Johnson, and Ed Steinman.
I am deeply indebted to each of them for allowing me to peer into
their lives. I know that Ed Howden does not fully agree with my
assessment of the San Francisco Commission on Equal Employment
Opportunity. It has nonetheless been a privilege to discuss mid-century
San Francisco politics with him, and it’s a pleasure to acknowledge
him and the enormous contributions he has made to advancing the
cause of civil rights in California.
Chuck McCurdy, Nelson Lichtenstein, Bill Nelson, and Mike
Klarman have guided my career and this project from the very begin-
ning of both. All four men have been ceaselessly generous with their
time and their support. Even more important, each has shown me,
by example, how to be a teacher and a scholar. While I doubt I have
been able to achieve the high standards that they have set, I am aware
of how lucky I’ve been to have such mentors. I am also delighted to
be able to call them my friends. There are other historians who were
not involved in the project, but who have also left a deep impact on
my intellectual growth: Robin Chapman Stacey, Robert Stacey, and
Melvin Patrick Ely. John Boswell and Victor Marchioro also belong
on this list, and it deeply saddens me that neither is alive to hear how
much their teaching and mentorship influenced my life.
Forging Rivals could not have been written without institutional and
financial support from the University of California, Hastings College
of the Law. This project has lasted through the tenure of a host of gen-
erous administrators at UC Hastings. These include Deans Mary Kay
Kane, Leo Martinez, Nell Newton, and Frank Wu; Academic Deans Leo
Martinez, Shauna Marshall, and Beth Hillman; and Research Deans
Evan Lee and Bill Dodge. It’s a pleasure to be able to thank them all.
Additionally, Hastings was able to provide me with financial support
for this project through the Chip Robertson Fund, the Nagin Fund,
and the UC Hastings Foundation. I am grateful to these donors not
only for the financial support they have given my project, but also for
helping to sustain a vibrant intellectual environment at UC Hastings.
I also received exceptionally generous institutional support from the
Institute for Legal Research at the University of California, Berkeley,
School of Law. For several summers and a sabbatical semester, the
Institute has been my home away from home. It’s a peaceful, quiet
xiv Acknowledgments

place that has been exceptionally conducive to research and writing.

Harry Scheiber, who runs the Institute, has been a gracious host, and
Karen Chin, Toni Mendicino, and Anhara Alexander have made my
stays there free from hassles.
A number of librarians were integral to the writing of this book.
First and foremost were Chuck Marcus at UC Hastings, and Catherine
Powell at the Labor Archives and Research Center at San Francisco
State University. Both have been unstintingly generous in their help
and their willingness to respond to even the most picayune and
unreasonable requests. I also owe a debt of gratitude to librarians
at the Bancroft Library at the University of California, Berkeley; the
California Historical Society; the manuscripts and archives division
of the New York Public Library; the San Francisco Public Library
(both the government documents librarians, and the librarians at
the San Francisco History Collection); and the Pollak Library at Cal
State, Fullerton. Archivists at the National Archives and Records
Administration in San Bruno, the San Francisco Board of Supervisors,
and the Marin County Superior Court have also been extremely help-
ful, as has Bill Van Niekerken, who manages the photo archive at the
San Francisco Chronicle. Thanks also to Dave Curran for putting me
in touch with Bill.
Instrumental to the completion of this book were my exceptionally
talented research assistants at UC Hastings: John Beard, Charles Belle,
Nedda Black, Kate Feng, Kevin Knestrick, Linda Lam, Jennifer Wells,
and Julie Zong. Thanks also to Hannah Breslau for taking the cover
photograph.
I’d also like to thank the folks at Cambridge University Press and
Newgen Knowledge Works for shepherding the book through the pro-
duction process with a minimum of pain (and a maximum of compe-
tence): Diane Aronson, Dana Bricken, Ramesh Karunakaran, and Ami
Naramor. Thanks also to Deborah Gershenowitz at Cambridge for her
support of this entire project.
Tom McCarthy, the director of scholarly publications at UC
Hastings, volunteered to copyedit the entire manuscript, an offer
I greedily took him up on. He continues to refuse any kind of payment
for this selfless act. I have also subjected him to an endless barrage
of picayune questions more appropriately addressed to the Chicago
Manual of Style than to a living, sentient human being. Of course
 Acknowledgments xv

neither Tom nor any of the other generous people mentioned in these
acknowledgments is responsible for errors of thought or prose that
remain in the text, but I know there would surely be more such errors
without their help.
A portion of Chapter 4 appeared in The Right and Labor in
America: Politics, Ideology, and Imagination, edited by Nelson
Lichtenstein and Elizabeth Tandy Shermer. My thanks to the
University of Pennsylvania Press for permission to reprint this material
and to Nelson and Elizabeth for their great editorial work. A portion
of Chapter 6 was previously published as “The Emporium Capwell
Case: Race, Labor Law, and the Crisis of Post-War Liberalism” in vol-
ume 25 of the Berkeley Journal of Employment and Labor Law. Some
of the text of that piece appeared as part of a coauthored chapter of
Labor Law Stories entitled “The Story of Emporium Capwell: Civil
Rights, Collective Action, and the Constraints of Union Power.” My
thanks to the Berkeley Journal of Labor and Employment Law and to
Foundation Press for permission to reprint this material. My thanks
also to Laura Cooper and Catherine Fisk, who edited Labor Law
Stories, and to Marion Crain and Calvin William Sharpe, who were my
coauthors on the Labor Law Stories chapter. Though I benefited tre-
mendously from discussing the Emporium Capwell case with Marion
and Calvin, the material in this volume that also happens to appear in
Labor Law Stories was written entirely by me.
Here’s an advantage of thanking your family at the beginning of
the acknowledgments. You can thank them again at the end. Naomi
and Asa make my life complicated, crazy, and enormously joyful. If
they eventually read Forging Rivals, I look forward to their penetrat-
ing critiques. The luckiest moment in my life was meeting Jane, nearly
three decades ago, and one of the joys of writing this book was the
knowledge that I would be able to dedicate it to her. It is a delight to
finally be able to do so.
 Introduction

Legal History and the Death of Postwar

Liberalism

It was the summer of 1943 and the scene at the Atlas Shipyard in Long
Beach, California, was damn near explosive.1 Bob Jones’ question to
Madge had been a simple one. He needed an extra hand for a partic-
ularly difficult piece of welding that his crew was doing. As a leader-
man, Jones’ position entitled him to make the request, but Madge’s
response was harsh and instantaneous: “I ain’t gonna work with no
nigger.” Jones didn’t miss a beat. “Screw you then, you cracker bitch.”
Both statements hung in the air for a moment. Then Madge turned to
the two mechanics sitting slack-jawed nearby. “You gonna let a nigger
talk tuh me like that?” One of them started to stand, grabbing a metal
bar, but he was a small, elderly man. One glance from Jones sat him
back down again, and Jones stalked off.
Within hours, Jones had lost his position and the draft deferment
that went with it. His boss was furious: “I’d figured you’d have sense
enough to get along with the people you had to work with instead of
running around with a chip on your shoulder like most colored boys.
I’m not going to have you or any other colored boy in this department
who can’t maintain a courteous and respectful manner towards the
white men and women you have to work with.” Jones’ response was
simple – “she called me a nigger” – but it had no impact. “You know
how Southern people talk,” his boss had said, “how they feel about
working with you colored boys.”
Jones seethed with anger at the injustice of the situation, but what
could he do? In World War II–era California his options were limited.

1
2 Forging Rivals

The shipyards were fonts of economic opportunity. For thousands

of workers, impoverished by a decade of economic depression, they
provided high-paying, skilled jobs that, in peacetime, many of them
would have been excluded from because of their race or their sex. Yet
they were also cauldrons of racial tension – black and white workers,
many from the South, thrown together for the first time. When faced
with bigotry and discrimination, there was little an African American
worker could do. There were no antidiscrimination laws, no Equal
Employment Opportunity Commission to bring a case before, and no
plaintiff’s lawyers, enticed by the prospect of court-ordered attorney’s
fees, searching for clients.
Jones’ response to this incident is the subject of Chester Himes’
1945 novel, If He Hollers Let Him Go. Over the four days following
his encounter with Madge, Jones’ life spins out of control as his rage
builds into a tragic explosion sparked by the systemic racism that he
encounters daily, and by the equally insidious misogyny with which
Himes, perhaps unconsciously, imbued his protagonist. As Jones
embarks on this downward spiral, however, he makes one last attempt
to combat the shipyard’s racism through socially sanctioned institu-
tions. Jones appeals to his labor union.
Jones approaches a shop steward, Herbie Frieberger, to plead his
case. Unfortunately, Herbie – a dismayingly anti-Semitic caricature – is
not concerned with individual workers as much as with Popular Front
politics. When Jones asks Herbie to get the union to sanction Madge
for her racist comments, the steward demurs. The workers shouldn’t
be fighting each other; they should be fighting fascism. “That’s the
trouble with you colored people,” he tells Jones. “You forget we’re at
war. This isn’t any time for private gripes.” Instead, his solution is to
write up Jones’ demotion as a grievance to be presented to the arbitra-
tion board the following week. For Jones, such a solution is preposter-
ous. The systemic racism of the shipyard won’t be cured by a legalistic
grievance procedure. Ultimately Jones and the union go their separate
ways, each searching for its own solution to the problem.
Although Himes would have never intended it, this encounter
between Jones and Herbie can serve as a metaphor for the relation-
ship between law and liberalism in the years following World War II.
Each man embodies a political and ideological element of postwar lib-
eralism. African Americans and labor union members were to become
 Introduction 3

two of the most powerful supporters of the Democratic Party in the

twenty-five years following the war. Similarly, the desire to promote
prosperity by encouraging the growth of labor unions, and an increas-
ingly vigorous defense of the civil rights of African Americans both
became central attributes of the version of liberalism that shaped
American politics after the war.
Yet Herbie and Jones talk right past each other. What Jones sees as
an imperative plea for racial justice, Herbie sees as racial special plead-
ing. What Herbie sees as a reasonable request for unity in the face
of a war against totalitarianism, Jones sees as a demand that African
Americans set aside their own interests in order to help white people
who have shown them disdain, at best, and hatred, at worst. Jones
comes to Herbie in the hope that the union will take direct action
to rid the shipyard of racism. Herbie’s reaction is to channel Jones’
demand for justice into a formal, legalistic grievance procedure.
The politics of the United States in the three decades following
World War II did, in fact, generate legal mechanisms for furthering
the interests of both labor unions and advocates of racial egalitari-
anism. Like Jones and Herbie, however, these two legal regimes fre-
quently talked past each other. Indeed, they often conflicted, rendering
the political alliance between the labor movement and the civil rights
movement exceptionally difficult to sustain. As America emerged from
a decade and a half of depression and war, the country’s dominant pol-
icy makers saw both labor law and civil rights law as tools for forging
a just, equitable social order. Instead, these legal regimes forged rivals,
creating a legal landscape that promoted conflict between the two
groups that were indispensable to the fortunes of postwar liberalism.
The central goal of Forging Rivals is to explore those fortunes. For
twenty-five years after the end of World War II, American liberalism
flourished. The Democratic Party’s political dominance resulted in a
succession of heroically named policy concoctions – the Fair Deal,
the New Frontier, the Great Society – that expanded the size of the
American regulatory and welfare states, and committed the federal
government to the elimination of racial discrimination. Starting in the
late 1960s, however, liberalism went into decline, laid low by Richard
Nixon, Ronald Reagan, and a resurgent Republican Party. Indeed, even
the dominant Democratic president of this period, Bill Clinton – he of
triangulation, of welfare reform, and of the Democratic Leadership
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