The Justices in 1975
As has been widely noted already, Justice John Paul Stevens ended his dissent in today’s school assignment cases by writing:
“It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.”
Upon Justice Stevens’ appointment by President Gerald Ford, the Supreme Court in 1975 consisted of the following Justices (accompanied by the Presidents who appointed them and the years each served on the bench):
- (Chief) Warren Burger (Nixon, 1969-1986)
- William J. Brennan (Eisenhower, 1956-1990)
- Potter Stewart (Eisenhower, 1958-1981)
- Byron White (Kennedy, 1962-1993)
- Thurgood Marshall (Johnson, 1967-1991)
- Harry Blackmun (Nixon, 1970-1994)
- Lewis F. Powell (Nixon, 1971-1987)
- William H. Rehnquist (Nixon, 1971-2005)
We’ll never know if Justice Stevens’ assessment would have been true. But it is fair to say that one could reasonably debate whether then Justice Rehnquist would have opposed today’s opinion, given his votes against racial classifications in other Equal Protection cases – i.e. Bakke (1978), Adarand (1985), Metro Broadcasting (1990) and, most recently, Grutter (2003) and Gratz (2003).
Ben,
Great post and welcome to the blog. I agree with you that Justice Stevens’ ending to his reading of the dissent may have been more of a rhetorical flourish than actually grounded in fact. It may have been 8-1, but based on his body of work I really think that then-Justice Rehnquist would have joined (or written) today’s plurality opinion if given the chance.
Comment by David Stras — June 28, 2007 @ 6:53 pm
David,
It was not rhetorical flourish. Justice Stevens cites a case from 1978 in which Justice Rehnquist does just that:
If we look at cases decided during the interim between Brown and Adarand, we can see how a rigid adherence to tiers of scrutiny obscures Brown’s clear message. Perhaps the best example is provided by our approval of the decision of the Supreme Judicial Court of Massachusetts in 1967 upholding a state statute mandating racial integration in that State’s school system. See School Comm. of Boston v. Board of Education, 352 Mass. 693, 227 N. E. 2d 729. [FN5] Rejecting arguments comparable to those that the plurality accepts today [FN6], that court noted: “It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoals in the Fourteenth Amendment.” Id., at 698, 227 N. E. 2d, at 733 (footnote omitted).
Invoking our mandatory appellate jurisdiction, the Boston plaintiffs prosecuted an appeal in this Court. Our ruling on the merits simply stated that the appeal was “dismissed for want of a substantial federal question.” School Comm. of Boston v. Board of Education, 389 U. S. 572 (1968) (per curiam). That decision not only expressed our appraisal of the merits of the appeal, but it constitutes a precedent that the Court overrules today. The subsequent statements by the unanimous Court in Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 16 (1971), by then-Justice Rehnquist in chambers in Bustop, Inc. v. Los Angeles Bd. of Ed., 439 U. S. 1380, 1383 (1978), and by the host of state court decisions cited by JUSTICE BREYER, were fully consistent with that disposition. Unlike today’s decision, they were also entirely loyal
to Brown.
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FN 5 THE CHIEF JUSTICE states that the Massachusetts racial imbalance Act did not require express classifications. See ante, at 31-32, n. 16. This is incorrect. The Massachusetts Supreme Judicial Court expressly stated: “The racial imbalance act requires the school committee of every municipality annually to submit statistics showing the percentage of nonwhite pupils in all public schools and in each school. Whenever the board finds that racial imbalance exists in a public school, it shall give written notice to the appropriate school committee, which shall prepare a plan to eliminate imbalance and file a copy with the board. The term “racial imbalance” refers to a ratio between nonwhite and other students in public schools which is sharply out of balance with the racial composition of the society in which nonwhite children study, serve and work. For the purpose of this section, racial imbalance shall be deemed to exist when the per cent of nonwhite students in any public school is in excess of fifty per cent of the total number of students in such
school.” 352 Mass., at 695, 227 N. E. 2d, at 731.
FN 6 Compare ante, at 39 (”It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954), with Juris. Statement in School Comm. of Boston v. Board of Education, O. T. 1967, No. 67759, p. 11 (”It is implicit in Brown v. Board of Education of Topeka, 347 U. S. 483, that color or race is a constitutionally impermissible standard for the assignment of school children to public schools. We construe Brown as endorsing Mr. Justice Harlan’s classical statement in Plessy v. Ferguson, 163 U. S. 537, 539: “Our constitution is
color-blind, and neither knows nor tolerates classes among citizens” ‘).
It is therefore hard to justify Justice Rehnquist striking down today’s voluntary plans on the basis of the 1964 Act.
Comment by Jacques McKenzie — June 28, 2007 @ 9:11 pm
Jacques,
Fair point, but the plurality characterize the in-chambers opinion by then-Justice Rehnquist differently than Justice Stevens in footnote 10 of Chief Justice Roberts’s opinion. Of course, the point is debatable as Stevens and Roberts have different views on the significance of the Bustop case.
Comment by David Stras — June 28, 2007 @ 9:31 pm
Stevens has given every Monday morning quaterback and historical buff a gift: pondering the unanswerable “what if.” For lawyers, this is like sitting in a NY bar and asking what if Dimaggio had not lost lost playing years in WWII. But back to Rehnquist. Perhaps most telling would be his position in Bakke, where he agreed that that California violated Bakke’s civil rights through a quota program. But then again, Rehnquist was a true federalist and often gave states and municipalities much more flexibility in these areas. But the real response to Stevens’ sour grapes missive is “so what?” If the decision had been rendered three years ago or in 1965, it would have gone the other way too. Could you imagine the reaction if, say, Justice Harlan, announced from the bench in 1965, after Miranda, that if his grandfather were sitting on the court with his fellow eight justices circa 70 years ago, this decision would go the other way. Well, who cares. And I guess if Al Gore or John Kerry had beaten Bush, the decision would have gone the other way too. But wait a minute, if Ralph Branca had a thrown a change up instead of ……..ENOUGH!
Comment by Dennis Bedard — June 29, 2007 @ 8:56 am
David,
It isn’t just a fair point. It’s a whizzing ace. Once you grant there is no plausible or coherent account of why Justice Rehnquist would — based on, say, the Civil Rights Act of 1964 — overturn a 1967 decision he affirmed in 1978 on the basis of the 14th Amendment, then you cannot weight Stevens’ and Roberts’ descriptions of the cases equally, because the point of Stevens’ dissent is to show how unprincipled and dishonest Roberts is. The question we are left asking is: Is there any way — based on the specifically applicable precedent that Justice Stevens cites in his dissent — that CJ Roberts’ plurality is not raw judicial activism?
Therefore, to refute the historical description of the relevant precedent in Justice Stevens’ dissent, you’d have to go outside of Roberts’ plurality. (You won’t find any such support in Justice Thomas’s concurrence, because that was aimed at Justice Breyer and ignored Justice Stevens.)
In the discussion of the cases on generally right-wing websites, the only attempt at a refutation of Stevens’ dissent appears to be pointing out that “not only blacks were victims of segregation, Chinese children were discriminated against, too.” But I fail to see how such a factual correction counts as either a refutation of Stevens’ description or the point of the historical description, which is not so much that Roberts’ opinion is inaccurate, but rather that it is unprincipled and dishonest.
Given that you clerked for a principled conservative Justice on the Supreme Court, David, let me ask you a normative question about how you drafted opinions. Don’t you think if your plurality seeks to overrule a directly applicable precedent, you mention it? Don’t you think that if you describe a historical trend, you actually look at the history? To do otherwise would be negligent, no? Do you think that because Chinese people were victims of white supremacy in addition to blacks that means Roberts has described the historical trend correctly? If anything, doesn’t that tend to support the white/nonwhite categorizations used by the school districts?
Whether Thomas or Breyer has the better argument on policy is one thing, but I see nothing in Thomas’s concurrence to lay a hand on Breyer’s facts. Nor do I see anything in Roberts’ plurality to lay a hand on Stevens’ facts.
I see rhetoric used to clothe an exercise of power; I see Roe v. Wade. And I like Roberts.
Comment by Jacques McKenzie — June 29, 2007 @ 10:17 am
Excellent posts, Jacques. Roberts is not yet smooth either in asking questions during oral argument or writing opinions, the sharp points of his ideology stick out. Which may explain why Roberts wrote so few opinions and Alito got assigned more 5-4s — with many more years on the appellate bench, Alito’s writing has a more measured inevitability by which to put his ideology into law.
Comment by Roger Friedman — June 29, 2007 @ 10:32 am
Jacques,
The answers to your general questions are yes. If there is a directly on-point precedent, you deal with it and either overrule it honestly and directly or you distinguish it in a principled manner. And as you know from his opinions, Justice Thomas is not at all afraid to overrule cases or entire lines of cases if he feels that a different rule is warranted either by history or text. See, e.g., Lopez.
Leaving aside the school cases, which I still want to spend more time on before I make a final judgment on the opinions, I do think that the Court generally has really reached this Term in distinguishing precedent. The Hein case is a great example, and I can think of a few others. Again, I want to spend more time with the school cases and not reach a quick judgment, but your point is well taken.
Comment by David Stras — June 29, 2007 @ 10:55 am
What amazed me about this comment is the idea that the 1975 Court was some high water mark of jurisprudence. Just a few years after Roe v. Wade, the Court is chock-a-bloc with people like Marshal and Brennan who do not care what the Constitution says about anything if it stands athwart the Left agenda. The 1970’s is looked upon by many people as the nadir of American culture, law and politics. It is no accident that the demographic cohort born between 1964 and 1969 that came of age at that time is one of the most conservative extant. Many of us have worked assiduosly for twenty years to make sure that no Supreme Court ever looks like that 1975 Court. Originalism was opposed by that Court and the idea that words might mean what they said, never considered. That was a Court that came one vote away from declaring that the Constitution required the federal government to pay for abortions. It did strike down every death penalty in the Country. Its members created the “Lemon Test.” In short, it was a nightmarish accretion of Leftists, mediocraties and timid timeservers well out of their depth. Stevens was, if continuity of quality was the goal, an apt choice. He might just as well have said, “No member of the Court when I joined in 1975 would have stood for wearing such narrow lapels as this Court dons.”
Comment by jjv — July 1, 2007 @ 6:50 pm
Ah yes, the me generation. No historical knowledge at all, not even in regard to lapels. Thanks for your input, jiv.
Comment by Roger Friedman — July 2, 2007 @ 8:04 am
Jjv, we’ll all be waiting eagerly to learn about precisely how you personally were responsible for ensuring that “no Supreme Court ever looks like that 1975 Court.” Oddly enough, no source that I’ve consulted credits you with that development.
Comment by Marc Shepherd — July 2, 2007 @ 9:26 am
Messrs Friedman and Shepard:
1. I plead guilty on all fashion conscious attacks. I tend to remember very large collars,annd wide ties, and if memory serves, lapels. Insert something about pantsuits if you prefer.
2. I said “many of us have worked assiduosly” to make sure the Court never again looks like it did in 1975. I did not make the ludicrous claim of sole and individual responsibility. There is a reason Scalia, Thomas, Alito, and Roberts are on the bench and it is largely the intellectual and political reaction to that halcyon 1970’s line-up. I’m one of the tiny drops of water making up the Tsunami that has made the Court a winning conservatve issue in Senate and Presidential elections for 20 years. That is all that I meant. I hereby renounce any assertion that I have whispered in the ear of any President on who to pick for the Supreme Court,or have provided winning strategies to any Senate candidate. However, I am reliably informed that George W. Bush won Florida by less than 500 votes in 2000. It is possible the op-eds I wrote on this subject and that election swayed that many Floridians. I doubt it but it would be amusing. In any event,we shadowy, Cheney-supporting illuminati keep our malign, but all pervasive influence, out of the press and any sources Mr. Friedman is likely to have consulted.
3. Finally, heap all the snark you like upon my admittedly visceral post but I do not see defenses, in ringing tones, of the 1970’s being in actuality “some high-water mark of jurisprudence.”
Comment by jjv — July 2, 2007 @ 12:08 pm