Reexamining Brown v. Board: A Legal Dialogue: Part 8
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 8. Brown Has Lost Its Power to Advance the Cause of Racial Equality: Professor Mark Graber (see previous posts 1, 2, 3, 4, 5, 6, 7)
Professor Klarman and I for the past week have engaged in a tag team match against Brown v. Board of Education. While quibbling over details, we have agreed that the Warren Court’s decision was not nearly as heroic as commonly thought, not nearly as effective in securing racial equality as commonly thought, and far more motivated by self-interest than commonly thought. We are free to suggest these heretical sentiments, I wish to suggest, because Brown is no longer our case. Brown has become a constitutional celebrity, and as such, has lost all power to continue advancing the cause of racial equality.
Brown belonged to racial progressives during the 1950s and 1960s. Liberals in the courtroom and in electoral politics insisted that the Supreme Court had correctly ruled that segregation was unconstitutional and demanded that this ruling be enforced and expanded. Conservatives insisted that Brown was wrongly decided, should be overruled, or at least narrowed. Progressives won that fight. By the late 1960s or early 1970s a wide consensus existed in the United States that Brown was correctly decided, indeed that the case was a landmark in American constitutional jurisprudence. No jurist who believed otherwise could be confirmed for a federal judicial appointment. No politician who questioned this consensus could run for national office.
The canonization of Brown officially ended the Jim Crow Era. Neither politicians nor justices could assert that segregation was a legitimate means of promoting white supremacy. White supremacy, itself, was discredited as a national aspiration. This was a major achievement, given the tenacious hold racial theories had had on American consciousness from the framing to the 1960s. Nevertheless, canonization threatened irrelevance. Opponents of racial equality did not flee the scene in the 1970s. They simply changed their arguments. They began to insist Brown was rightly decided and supported their opposition to school busing and affirmative action. By the time the Rehnquist Court reached full bloom, Brown was as likely to be cited favorably by the successors to the White Citizens Council as by the NAACP Legal Defense Fund. The most recent Seattle and Louisville school cases demonstrate how Brown can be as effectively employed against proponents of racial equality as for their cherished vision of a multi-racial society.
A good history remains to be written about the appropriation of Brown (Reva Siegal and Robert Post hint at some of this history in their essay on “Roe Rage” in a recent Harvard Civil Liberties-Civil Rights piece). If I am correct, Brown became a canonical case only when racial conservatives stopped asserting that Brown wrongly decided and began insisting that Brown provided precedential support for the racial status quo in the United States. To be fair, some persons who supported Brown in 1954 reached similarly conservative conclusions about the case by 1970. Still, if my hunch is correct, historical research will demonstrate that most older conservatives who control the meaning of Brown today were opposed or indifferent to that decision during the 1960s. Brown became Brown, only when the case could be employed to defend alleged rights of white people. This is hardly surprising. As Pamela Brandwein asserts in Reconstructing Reconstruction, the Supreme Court by the late 1880s was firmly committed to the Northern Democratic interpretation of the 14th Amendment.
History can go so far. I think the national media might have noted that, when George Bush left “military service” to campaign, he did so for an Alabama Republican who accused Senator John Sparkman as being too liberal on racial matters. Perhaps that might have sparked a serious discussion on the origins of the modern Republican Party. Still, this no doubt would have been just another youthful folly, excused as we excused William Rehnquist, Strom Thurmond, Trent Lott, Robert Bork and other Republicans who did not exactly distinguish themselves during the time when Brown was controversial. The more important point is that citation of Brown no longer automatically advances progressive causes. For Americans to achieve greater racial equality, a new symbol will have to be forged.