Reexamining Brown v. Board: A Legal Dialogue, Part 3
ACSBlog is pleased to present 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. We hope readers enjoy the conversation, and encourage your comments.
Part 3. The Court, Race and Public Opinion: Michael Klarman Responds (see previous posts here and here)
Mark Graber and I are not in fundamental disagreement about the indeterminacy of the Constitution on most issues bearing on racial equality. I agree with the claim in his terrific, recent book on Dred Scott that the traditional sources of constitutional law supported the outcome in Dred Scott at least as well as they supported the position of the dissenters. I have made similar arguments with regard to Brown v. Board of Education (that is, that the traditional legal sources supported the pro-segregation position at least as well as the anti-segregation position). That said, I will stick with my assertion that self-proclaimed originalists have no respectable argument that the Fourteenth Amendment, as an historical matter, embraced a norm of color-blindness. Republican supporters of the amendment repeatedly denied that it would forbid black disfranchisement, exclusion of blacks from jury service, school segregation, or prohibitions on interracial marriage. The supporters of the amendment (or their constituents) were, in a word, too racist to have embraced the color-blind principle that justices such as Scalia and Thomas have read into the Constitution.Because our differences on this point are relatively small, let me move the discussion in a slightly different direction. My claim yesterday was that the Supreme Court has been on the regressive side of questions of racial equality as often as it has been on the progressive side. My claim today is that all of Court’s race decisions—both regressive and progressive—have been consonant with dominant public opinion.
Space limits me to a few of the most salient examples. In the 1930s, the Court twice reversed death sentences imposed by Alabama juries on the “Scottsboro Boys,” nine black youths falsely accused of raping two white women on a freight train in northern Alabama in the spring of 1931. The defendants’ trials were legal lynchings: Mobs surrounding the courthouse demanding a lynching; the defendants had no legal representation to speak of; blacks had been systematically excluded from their juries; the trials lasted a couple of hours each, and the juries deliberated for a matter of minutes. Most Americans were appalled by Alabama’s efforts to execute black teenagers based on such farcical trials, especially given substantial contemporaneous doubts as to their factual guilt. The Court’s rulings reversing their convictions were greeted with widespread acclaim outside of the Deep South.
Similarly, when the Supreme Court in 1944 invalidated the southern white primary—the exclusion of blacks from the only elections that mattered in the one-party South—contemporaneous opinions polls (taken on the analogous issue of anti-poll tax legislation) revealed that roughly 70 percent of the country favored federal intervention against southern electoral devices for disfranchising blacks. Finally, opinion polls conducted soon after the Court’s decision in Brown v. Board of Education (1954) showed that just over 50 percent of the nation endorsed it.
Although the myth of the Court as heroic defender of the rights of oppressed racial minorities is deeply entrenched, in fact virtually all of the Court’s progressive race rulings in the twentieth century were consonant with dominant national opinion (though, of course, they were fiercely opposed by most southern whites).
To be fair, if one is not going to give the Court much credit for its progressive rulings, it is hard to award it much blame for its regressive ones, which equally reflected dominant public opinion on race.
When the Court ruled in Dred Scott (1857) that free blacks had no rights that whites were bound to respect, it was clearly reflecting dominant opinion in the nation. In 1857, blacks could vote only in five New England states, which, together, held only 6 percent of the North’s free black population. Blacks were segregated in public schools or excluded entirely almost everywhere in the antebellum North. Several states in the Northwest actually had constitutional provisions barring free blacks from migrating there.
In 1896 when the Court ruled in Plessy v. Ferguson that state-mandated racial segregation was permissible under the Fourteenth Amendment, it was, once again, accurately reflecting dominant national opinion. By 1896, even the Republican party—the party of Lincoln and emancipation--had largely abandoned blacks. National newspapers—other than black ones--barely noticed Plessy, much less criticized it.The New York Times reported the decision in a page-3 column on railroad news. The country greeted it with a yawn of indifference.
As a final illustration of this point, note that when the Roberts Court this past summer invalidated the use of racial criteria in student allocation policies designed to promote racial integration in public schools, at most 5 to 10 percent of the nation’s school districts still used such policies. The Court essentially invalidated schemes to promote integration in public education after most of nation had abandoned integration as a goal to be pursued by government action.
In the race area as well as elsewhere, the Court is a rough barometer of national opinion. We shouldn’t blame it too much for regressive decisions that reflect the very different mindsets and values of previous eras. But neither should we delude ourselves into believing that the Court has the capacity or inclination to be a heroic defender of minority rights. The Court protects those minorities that public opinion deems worth of protection.