Here the particular patterns of discrimination and the areas in which the restrictions are to operate, are determined, in the first instance, by the terms of agreements among private individuals. Participation of the State consists in the enforcement of the restrictions so defined. The crucial issue with which we are here confronted is whether this distinction removes these cases from the operation of the prohibitory provisions of the Fourteenth Amendment.

Since the decision of this Court in the Civil Rights Cases, 109 U. S. 3 (1883), the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful."

We conclude, therefore, that the restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated. Cf. Corrigan v. Buckley, supra.

But here there was more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive

148 Ga. 285, 96 S. E. 562 (1918); Jackson v. State, 132 Md. 311, 103 A. 910 (1918); Clinard v. Winston-Salem, 217 N. C. 119, 6 S. E. 2d 867 (1940); Allen v. Oklahoma City, 175 Okla. 421, 52 P. 2d 1054 (1936); Liberty Annex Corp. v. Dallas, 289 S. W. 1067 (Tex. Civ. App. 1927); Irvine v. Clifton Forge, 124 Va. 781, 97 S. E. 310 (1918).

12 And see United States v. Harris, 106 U. S. 629 (1883); United States v. Cruikshank, 92 U. S. 542 (1876).

terms of the agreements. The respondents urge that judicial enforcement of private agreements does not amount to state action; or, in any event, the participation of the State is so attenuated in character as not to amount to state action within the meaning of the Fourteenth Amendment. Finally, it is suggested, even if the States in these cases may be deemed to have acted in the constitutional sense, their action did not deprive petitioners of rights guaranteed by the Fourteenth Amendment. We move to a consideration of these matters.

II.

That the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court. That principle was given expression in the earliest cases involving the construction of the terms of the Fourteenth Amendment. Thus, in Virginia v. Rives, 100 U. S. 313, 318 (1880), this Court stated: "It is doubtless true that a State may act through different agencies,—either by its legislative, its executive, or its judicial authorities; and the prohibitions of the amendment extend to all action of the State denying equal protection of the laws, whether it be action by one of these agencies or by another." In Ex parte Virginia, 100 U. S. 339, 347 (1880), the Court observed: "A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way." In the Civil Rights Cases, 109 U. S. 3, 11, 17 (1883), this Court pointed out that the Amendment makes void "State action of every kind" which is inconsistent with the guaranties therein contained, and extends to manifestations of "State authority in the shape of laws, customs, or judicial or executive proceedings." Language to like effect is em

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ployed no less than eighteen times during the course of that opinion."

Similar expressions, giving specific recognition to the fact that judicial action is to be regarded as action of the State for the purposes of the Fourteenth Amendment, are to be found in numerous cases which have been more recently decided. In Twining v. New Jersey, 211 U. S. 78, 90-91 (1908), the Court said: "The judicial act of the highest court of the State, in authoritatively construing and enforcing its laws, is the act of the State." In Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U. S. 673, 680 (1930), the Court, through Mr. Justice Brandeis, stated: "The federal guaranty of due process extends to state action through its judicial as well as through its legislative, executive or administrative branch of government.' Further examples of such declarations in the opinions of this Court are not lacking."

One of the earliest applications of the prohibitions contained in the Fourteenth Amendment to action of state

"Among the phrases appearing in the opinion are the following: "the operation of State laws, and the action of State officers executive or judicial"; "State laws and State proceedings"; "State law ... or some State action through its officers or agents"; "State laws and acts done under State authority"; "State laws, or State action of some kind”; “such laws as the States may adopt or enforce"; "such acts and proceedings as the States may commit or take"; "State legislation or action"; "State law or State authority."

14 Neal v. Delaware, 103 U. S. 370, 397 (1881); Scott v. McNeal, 154 U. S. 34, 45 (1894); Chicago, Burlington and Quincy R. Co. v. Chicago, 166 U. S. 226, 233–235 (1897); Hovey v. Eliott, 167 U. S. 409, 417-418 (1897); Carter v. Texas, 177 U. 8. 442, 447 (1900); Martin v. Texas, 200 U. 8. 316, 319 (1906); Raymond v. Chicago Union Traction Co., 207 U. S. 20, 35-36 (1907); Home Telephone and Telegraph Co. v. Los Angeles, 227 U. S. 278, 286-287 (1913); Prudential Insurance Co. v. Cheek, 259 U. 8. 530, 548 (1922); American Railway Express Co. v. Kentucky, 273 U. 8. 260, 274 (1927); Mooney v. Holohan, 294 U. S. 103, 112-113 (1935); Hansberry v. Lee, 311 U. 8.82, 41 (1940).

judicial officials occurred in cases in which Negroes had been excluded from jury service in criminal prosecutions by reason of their race or color. These cases demonstrate, also, the early recognition by this Court that state action in violation of the Amendment's provisions is equally repugnant to the constitutional commands whether directed by state statute or taken by a judicial official in the absence of statute. Thus, in Strauder v. West Virginia, 100 U. S. 303 (1880), this Court declared invalid a state statute restricting jury service to white persons as amounting to a denial of the equal protection of the laws to the colored defendant in that case. In the same volume of the reports, the Court in Ex parte Virginia, supra, held that a similar discrimination imposed by the action of a state judge denied rights protected by the Amendment, despite the fact that the language of the state statute relating to jury service contained no such restrictions.

The action of state courts in imposing penalties or depriving parties of other substantive rights without providing adequate notice and opportunity to defend, has, of course, long been regarded as a denial of the due process of law guaranteed by the Fourteenth Amendment. Brinkerhoff-Faris Trust & Savings Co. v. Hill, supra. Cf. Pennoyer v. Neff, 95 U. S. 714 (1878)."

In numerous cases, this Court has reversed criminal convictions in state courts for failure of those courts to provide the essential ingredients of a fair hearing. Thus it has been held that convictions obtained in state courts under the domination of a mob are void. Moore v. Dempsey, 261 U. S. 86 (1923). And see Frank v. Mangum, 237 U. S. 309 (1915). Convictions obtained by

1o And see Standard Oil Co. v. Missouri, 224 U. S. 270, 281–282 (1912); Hansberry v. Lee, 311 U. 8. 32 (1940).

18

coerced confessions." by the use of perjured testimony known by the prosecution to be such," or without the effective assistance of counsel, have also been held to be exertions of state authority in conflict with the fundamental rights protected by the Fourteenth Amendment.

But the examples of state judicial action which have been held by this Court to violate the Amendment's commands are not restricted to situations in which the judicial proceedings were found in some manner to be procedurally unfair. It has been recognized that the action of state courts in enforcing a substantive common-law rule formulated by those courts, may result in the denial of rights guaranteed by the Fourteenth Amendment, even though the judicial proceedings in such cases may have been in complete accord with the most rigorous conceptions of procedural due process." Thus, in American Federation of Labor v. Swing, 312 U. S. 321 (1941), enforcement by state courts of the common-law policy of the State, which resulted in the restraining of peaceful picketing, was held to be state action of the sort prohibited by the Amendment's guaranties of freedom of discussion. In Cantwell v. Connecticut, 310 U. S. 296

16 Brown v. Mississippi, 297 U. S. 278 (1936); Chambers v. Florida. 309 U. S. 227 (1940); Ashcraft v. Tennessee, 322 U. S. 143 (1944); Lee v. Mississippi, 332 U. S. 742 (1948).

17 See Mooney v. Holohan, 294 U. S. 103 (1935); Pyle v. Kansas. 317 U. S. 213 (1942).

18 Powell v. Alabama, 287 U. S. 45 (1932); Williams v. Kaiser, 323 U. S. 471 (1945); Tomkins v. Missouri, 323 U. S. 485 (1945); De Meerleer v. Michigan, 329 U. S. 663 (1947).

19 In applying the rule of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), it is clear that the common-law rules enunciated by state courts in judicial opinions are to be regarded as a part of the law of the State.

20 And see Bakery Drivers Local v. Wohl. 315 U. S. 769 (1942); Cafeteria Employees Union v. Angelos, 320 U. S. 293 (1943).