ACSBlog: The Blog of the American Constitution Society

With the following posting, ACSBlog is pleased to begin a multi-part dialogue between two distinguished legal scholars, Professor Michael Klarman of the University of Virginia School of Law and Professor Mark Graber of the University of Maryland School of Law.  The subject is the legacy of Brown v. Board of Education, which Professor Klarman discussed in his recently published book, Unfinished Business – Racial Equality in American History. We hope readers enjoy the conversation over the next several days, and encourage your comments.

I want to start this discussion with a couple of points about the Supreme Court and American race relations. First, the Court has not reliably been on the progressive side of racial issues. Second, whether the Court has been on the right or the wrong side, its rulings have reflected public opinion more than they have influenced it. 

Brown v. Board of Education, together with its antecedents and progeny, have led many to the view that the Supreme Court is a reliable defender of the interests of racial minorities. Yet, over the course of American history, the Court has opposed those interests at least as often as it has supported them.  

Before the Civil War, the Court was a reliable defender of the interests of slaveholders. In Prigg v. Pennsylvania in 1842, the Court not only rejected significant challenges to the constitutionality of the federal fugitive slave law, but also invalidated a northern state law that endeavored to protect free blacks from kidnapping. In the infamous Dred Scott decision of 1857, the Court not only invalidated congressional legislation barring slavery from federal territories, but also ruled that even free blacks had no rights that whites were bound to respect.

In the aftermath of the Civil War, the Court in several cases reversed the criminal convictions of whites who had lynched blacks or perpetrated racial massacres. In 1883, the justices invalidated the last piece of civil rights legislation that Congress would pass until the 1950s. In the late nineteenth and early twentieth centuries, the Court on numerous occasions upheld laws segregating the races and disenfranchising blacks.

Over the last four decades--since the end of the Warren Court--more often than not the Supreme Court has invalidated affirmative action plans and legislative measures designed to increase minority political representation. The Court refused to permit remedies for school desegregation that was primarily a result of segregated housing patterns and gradually imposed such onerous requirements on school desegregation decrees as to make them impossible even in cases of proven de jure segregation. Only last summer, the Roberts Court ruled that the voluntary use of racial criteria in student allocation undertaken with the objective of promoting racial integration in public schools violated the Fourteenth Amendment--an extraordinary perversion of the original understanding of that amendment by justices who purport to employ an originalist methodology to questions of constitutional interpretation.

Only for the half century beginning with World War I was the Supreme Court a fairly dependable protector of the interests of racial minorities.

 
In my next post, I’ll discuss the relationship between the Court’s race rulings--both progressive and regressive--and public opinion.