Second-Guessing the Supreme Court

October 8, 2001

Legal Times

October 8, 2001

Second-Guessing the Supreme Court

By Mark Kozlowski

“What ’Brown v. Board of Education’ Should Have Said”

Edited with an introduction by Jack M. Balkin

NYU Press; 257 pages; $29.95

Brown v. Board of Education has achieved canonical status in American political culture. Jack M. Balkin is certainly correct when he writes in his introduction to “What ’Brown v. Board of Education’ Should Have Said” that “no federal judicial nominee and no mainstream national politician today would dare suggest that Brown was wrongly decided.” In curious contrast, however, very few legal academics have wholeheartedly embraced Chief Justice Earl Warren’s stunningly brief 1954 opinion holding that statutorily mandated racial segregation in public education violates the 14th Amendment.

The adherents of original intent jurisprudence have always been uneasy about Brown. Confronting the question as to whether the framers of the 14th Amendment wished to outlaw segregated schools, Warren famously punted and held that the evidence was “inconclusive.” A wide variety of originalist scholars do not agree.

Consider a sample. The late Raoul Berger, in his influential 1977 book “Government by Judiciary,” flatly declared that Brown was wrong because “the framers had no intention of striking down segregation.” This created a dilemma for Robert Bork in his 1991 apologia “The Tempting of America,” a work devoted to proving that “only the approach of original understanding meets the criteria that any theory of constitutional adjudication must meet in order to possess democratic legitimacy.” “The Tempting of America” is, of course, also devoted to proving that the defeat of Bork’s 1987 nomination to the Supreme Court was unjust. In a demonstration of the truth of Balkin’s point, however, Bork could not announce his agreement with Berger and still contend that he was wrongly kept off the Court.

He “solved” the problem with a small masterpiece of sophistry. In the space of a page, Bork contends both that “those who ratified [the 14th Amendment] did not think it outlawed segregated education or segregation in any aspect of life” and that “the result in Brown is consistent with, indeed is compelled by, the original understanding” of the equal protection clause. Bork argues that the clause establishes equal justice under law as a principle, which the Framers thought would be satisfied if states provided separate schools of equal quality for African-Americans. This is, of course, the logic of the Court’s 1896 opinion in Plessy v. Ferguson. However, says Bork, Plessy was not working because “when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. ... The Court’s realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality.”

Note first that Bork’s contention that the Court faced this stark choice contradicts his assertion that the result in Brown was “compelled.” More importantly, try to take in what Bork is saying: An originalist approach to the 14th Amendment supports both apartheid and court-ordered integration. This, according to Michael McConnell of the University of Utah, a far more serious originalist than Bork, “is more typical of the constitutional methodology Bork criticizes than it is of his own professed originalist methodology.”

McConnell, who is also President George W. Bush’s nominee for a seat on the 10th U.S. Circuit Court of Appeals, made this criticism in a 1995 article in the Virginia Law Review which argues that originalist backing for Brown can be discerned in efforts to outlaw segregated schools by the drafters of what became the Civil Rights Act of 1875. The article is required reading, but it has hardly convinced all originalists, not least because the bill finally passed of course did not include a ban on segregated schools. Thus, Earl Maltz has recently stated as flatly as Professor Berger that ”Brown cannot be defended by reference to the original understanding” of the 14th Amendment. Berger himself contended that McConnell’s thesis was the product of “exuberant fancy.”

In sum, there is no consensus among originalists as to the correctness of Brown. This should give some pause to conservative politicians and commentators who fulminate about the Manichaean struggle between judicial restraint founded upon the doctrine of original intent and “judicial activism” as practiced by “the Imperial Judiciary.” I wouldn’t hold my breath waiting for this, however.

Brown has troubled more than a few liberals as well. Their focus has been not upon Brown‘s result so much as its implementation. Hence the subtitle of a book on Brown published earlier this year by historian James T. Patterson, “A Civil Rights Milestone and Its Troubled Legacy.”

Brown‘s legacy is founded upon the phrase “all deliberate speed.” This, of course, was the Court’s command, announced in Brown II, a year after the Court’s initial decision, concerning the pace at which school districts would be expected to desegregate. The force of this command was obliterated by the segregationist backlash occasioned by the initial Brown decision. As Gerald Rosenberg notes in his book “The Hollow Hope,” “for 10 years, from 1954 to 1964, virtually nothing happened. Ten years after Brown only 1.2 percent of black schoolchildren in the South attended school with whites.” This is the basis for Rosenberg’s contention that Brown was irrelevant to the African-American struggle for civil rights.

The perceived inadequacies of Brown are the motivation for “What ’Brown v. Board of Education‘ Should Have Said.” The book works as follows: Take nine prominent law professors—Professor Balkin and his Yale colleagues Bruce Ackerman and Drew Days, Professor McConnell, Frank Michelman of Harvard, Catherine McKinnon of Michigan, the University of Chicago’s Cass Sunstein, Derrick Bell of NYU and John Hart Ely of the University of Miami—and ask them to rewrite Brown, Brown II and Bolling v. Sharpe, the companion case to Brown in which the Court declared segregated schools in the District of Columbia to be violative of the Fifth Amendment. Professor Balkin writes for “the Court,” and all of the other participants, save for the dissenting Professor Bell, write concurrences. No post-Brown legal authority may be cited, but the participants are not commanded to put aside their knowledge of “the progress of race relations in the past half century.” This amounts to a consistently engaging exercise that deserves a readership well beyond legal academia.

There is one particularly interesting agreement among the nine participants. Perhaps no single element of the Brown opinion has received as much criticism as Chief Justice Warren’s reliance upon “modern authority” in the field of psychology to establish that segregated schools harmed African-American children, whether or not the schools provided equal facilities.

Criticism of the Court’s reliance upon such evidence began in 1954 and has never let up. How could it be that constitutional injury could be proven by “modern authority” in the social sciences? And what if newer authority were to claim that African-Americans suffered no psychological harm from segregation? Would segregation then become constitutional again? It is one thing to assert that the Constitution should follow the flag; it is quite another to assert that it should follow the shrinks.

Tacitly acknowledging the strength of these criticisms, none of the participants relies upon psychological evidence to establish the harm of segregation. As Professor Days correctly asserts, quoting one of the World War II Japanese-American relocation cases, “we have developed criteria for evaluating the constitutionality of racial classifications that do not depend upon findings of psychic harm or social science evidence. They are based rather on the principle that ‘distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon equality.’ “

Not surprisingly, the most striking differences among the participants are found in their explanations of the act of constitutional interpretation. Professor McConnell declares that the “Justices [should] approach that task not as prophets or as moralizers, but as interpreters of a document written in understandable language with discernable purposes.” Other participants argue that McConnell’s claim that the Framers’ intent alone leads to the conclusion that segregation is unconstitutional is chimerical. Professor Ely asserts that the equal protection clause “is among the Constitution’s clearest examples of a provision whose exact content was understood not to be frozen in time” and is therefore available to protect vulnerable minorities from “mindless prejudice” in contexts that its Framers could not envision. What the Framers could not envision in 1868, a time when public schooling was rudimentary, was that, as Professor Balkin puts it, education would become “one of the most valuable assets that the state bestows on its citizens.” This is consistent with Chief Justice Warren’s assertion that “today, education is perhaps the most important function of state and local government.”

What I think is most intriguing about the exercise, however, is the attempts to improve upon “all deliberate speed.” Professor Days rules that desegregation “must begin immediately.” Professors Ely and McKinnon proffer the specific deadline of a year to complete desegregation. Other participants opt for vaguer admonitions. Professor McConnell urges that “there is no warrant for delay in desegregation” and Professor Sunstein declares that “prompt compliance with the commands of the Constitution is contemplated.”

But none of these formulations convinces me that history would have much changed had any one of them been adopted by Chief Justice Warren. Indeed some of the participants acknowledge as much in the book’s concluding section, which allows each of the participants the opportunity to comment upon why they wrote as they did. Thus, Professor Ely asserts that he could not imagine that his one-year deadline “would have done worse ... than the agonizingly gradualist approach we actually followed did.”

Ely makes no claim that it would have done better. In his dissenting opinion, Professor Bell sets forth an elaborate scheme pursuant to which segregated school districts would be charged with providing actually equal facilities for African-American schoolchildren. But he gives us no reason for thinking that this remedy would not itself have faced massive resistance. Indeed, in a recent lecture on Brown published in the Ohio Northern University Law Review, Bell acknowledges that the exercise of rewriting the opinion “left me in substantial doubt as to whether any decision by the Court could have won even reluctant compliance.”

Yet, in spite of the failure of all deliberate speed, the mandate of Brown was eventually implemented. Official racial segregation no longer exists. Then where does Brown’s power come from? I think it lies in our recognition that the decision accords with our deepest constitutional values. Our constitutional order recognizes that the rights of individuals and vulnerable minorities are subject to assaults that are not likely to be corrected through majoritarian politics precisely because they are the result of majoritarian politics. It also recognizes, as James Madison said, that “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights.” Whatever the shortcomings of Chief Justice Warren’s opinion, Brown is perhaps the finest expression of these principles.

Official segregation is dead, but we remain a society that is far from integrated. Indeed we are becoming less so. The Harvard Civil Rights Project announced recently that in 1998 some 70 percent of the nation’s African-American students attended predominantly minority schools, up from a low of 63 percent in 1980. These so-called minority majority schools are, of course, far more likely to provide substandard facilities than are white majority schools. The fault for this, however, lies with no court, but with ourselves.



Mark Kozlowski is associate counsel at New York University School of Law’s Brennan Center for Justice.