Reexamining Brown v. Board: A Legal Dialogue: Part 4
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 4. The Court, Race and Public Opinion: Professor Mark Graber (see previous posts here, here and here)
The most frequently used phrase this week is likely to be “not in fundamental disagreement with each other.” Our basic agreements are rooted in a shared rejection of Alexander Bickel’s countermajoritarian difficulty as the starting place for understanding the role of the Supreme Court in American life. Bickel famously asserted that “when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of the representatives of the actual people of the here and now.” We believe the Yale political scientist Robert Dahl more accurately described the relationship between the Supreme Court and the rest of the political system when he declared, “it would appear . . . somewhat unrealistic to suppose that a Court whose members are recruited in the fashion of Supreme Court justices would long hold to norms of Right or Justice substantially at odds with the rest of the political elite."
A good deal of research in law and political science over the last decade has elaborated on Dahl’s insight that the Supreme Court is better conceptualized as an institution that normally shares rather than checks the values of the dominant national coalition. Professor Barry Friedman of NYU Law School and other distinguished law professors have tended to emphasize that judicial decisions tend to be “consonant with dominant public opinion.” Professor Klarman’s blog today illustrates that position. Such political scientists as Keith Whittington, Howard Gillman, Paul Frymer, Kevin McMahon, Cornell Clayton, Mitchell Pickerill, George Lovell, Gordon Silverstein and, from a comparative perspective Tom Ginsburg and Ran Hirschl, tend to focus more specifically on the relationship between the Supreme Court and the dominant political coalition within the elected branches of government. Our scholarship, which I shamelessly recommend to all, suggests a more sophisticated version of the Dahlian thesis than the crude claim that the Supreme Court simply follows election returns.
The basic idea is this. If the dominant national coalition is composed of groups A, B, and C, the Supreme Court is unlikely to advance policies preferred by group D. Nevertheless, the Supreme Court may not mirror the balance of A’s, B’s, and C’s in the rest of the political system. There is a randomness element associated with small groups. The president has more influence over the staffing of the federal bench than the Senate. Supreme Court justices are particularly likely to represent the elite wing of the dominant national coalition. If elites within the dominant national coalition have somewhat different values than the mass base of that coalition, then the Supreme Court will tend to side with the elites and not the dominant national coalition as a whole. “Whose public opinion,” rather than generic public opinion, becomes the crucial factor to investigate.
Let me suggest how what is sometimes called a “regime politics” approach may explain some developments in the constitutional politics of race. During the late nineteenth century Republicans in Congress were divided over the extent to which the federal government should continue protecting the rights of former slaves. David Blight in a wonderful book has demonstrated how Republican elites during this time period increasingly emphasized reconciliation with the south. Republicans on the Supreme Court after 1876 more consistently expressed the elite sentiment for reconciliation than the mass uncertainty about appropriate racial policy. During the mid-twentieth century, Democrats were badly divided over race and few Republicans were very interested. The Roosevelt, Truman, and Eisenhower Justice Departments tended to be controlled by the wing of each party most committed to liberal racial equality. The Supreme Court in Brown probably clearly reflected elite Republican and Democratic sentiment more than public opinion as a whole (in keeping with the mantra stated in the first paragraph, I should note that Professor Klarman offers a similar analysis of Brown in his writings).
The close relationship between the Supreme Court and the elite wing of the dominant national coalition suggests that racial retrenchment is particularly likely should Republicans retain control of national electoral politics. When Brown was decided and the Civil Rights Act of 1964 passed, surveys consistently found that Republican elites were far more committed to racial equality than the average Republican voter. Contemporary surveys suggest that John Roberts, Samuel Alito and other Republican elites are now actually more hostile than the average Republican to the policies needed for practical racial equality in the United States. The Roberts Court is unlikely to go outside the boundaries of the dominant consensus on race in the United States, but a regimes politics analysis suggests that, unless reinvigorated with liberal appointees, the Supreme Court for the foreseeable future will be on the very conservative edge of that consensus.