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“What Can Brown Do For You?”

Below, Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford Law School and founding director of the school’s Supreme Court Litigation Clinic, writes on Brown v. Board of Education for SCOTUSblog’s program on Race and the Supreme Court.

Much of the Supreme Court’s moral capital rests on two Warren Court decisions, Brown v. Board of Education and Reynolds v. Sims.  (An interesting sidelight: according to John Hart Ely, “Chief Justice Warren used to say that if Reynolds had been decided before 1954, Brown would have been unnecessary.”)  Thus, it is hardly surprising that the Court often wraps itself in the mantle of these decisions, particularly when announcing controversial results.  (Think Bush v. Gore.)

Riffing off Cole Porter’s song, Justice Scalia once mockingly referred to the “shocks the conscience test” as the “Napoleon Brandy, the Mahatma Gandhi,” of subjectivity. But Brown really is the “the top” – the Supreme Court dancing with the “nimble tread/of the feet of Fred/Astaire.”   A constitutional theory that is inconsistent with Brown is unlikely to attract much support in the marketplace of ideas.

Particularly in light of the general ascendance of some form of originalism, one of the striking features of the modern conservative position on race-conscious government decisionmaking is its decided non-originalism. The Rehnquist and Roberts Courts have devoted pages upon pages of their opinions to plumbing the meaning that constitutional provisions possessed at the time of their framing and ratification. But whatever originalism means with respect to other constitutional issues, when it comes to the Equal Protection Clause and its application to questions of racial justice, the Court seldom looks back beyond Brown.  Put simply, the Court has abandoned “Framers’ originalism” in favor of “Brown originalism,” in which Justices claim fidelity, not to what the Equal Protection Clause meant in 1868, but rather to what the Supreme Court did in 1954.

Even that understanding of Brown has evolved over time.  To treat Brown as the embodiment of race neutrality is deeply ironic in light of its tangled relationship to the most influential scholarly invocation of neutrality, Herbert Wechsler’s 1959 Harvard Law Review article, Toward Neutral Principles of Constitutional Law, which in fact devoted its final pages to arguing that Brown could not be squared with the demands of principled adjudication.

As I read Brown, the evil at which the decision was directed was not an arbitrary or irrelevant use of race to separate similar children from one another—as would have been the case had a school system assigned children to different schools on the basis of astrological signs, for example.  Rather, the problem was an invidious use of race: school segregation reinforced blacks’ subordinate status and perpetuated an exclusion from civic institutions that dated back to the time of slavery.

Wechsler, by contrast, started from the premise that the Court would act as an illegitimate “naked power organ” if it decided the case based on the race of the plaintiffs.  This forced him to cast about for some “neutral” principle that could justify judicial intervention.  He latched onto the idea that the problem with segregation was not that it injured black people, but that it denied everyone, white or black, the right to associate across racial lines.  This produced perhaps the most notorious passage in Neutral Principles:

I think, and I hope not without foundation, that the Southern white also pays heavily for segregation, not only in the sense of guilt that he must carry but also in the benefits he is denied. In the days when I was joined with Charles H. Houston in a litigation in the Supreme Court, before the present building was constructed, he did not suffer more than I in knowing that we had to go to Union Station to lunch together during the recess.

To paraphrase Professor Charles Black’s masterful 1960 response to Wechsler, here is where the curves of self-satisfaction and obtuseness “intersect at their respective maxima.”  A man who cannot see the difference between his having to walk a couple of blocks out of his way at most a few times a year and the daily pervasive insult that blacks when they couldn’t enjoy the most basic civil rights, well …. it might give one pause about his theory more generally.

In any event, having come up with this somewhat cockamamie description of what was wrong with segregation, Wechsler compounded it by then throwing in the towel and finding himself unable to provide a principled way for courts to prefer the claims of those who wished to “associate” (that is, black schoolchildren seeking to attend schools from which they had been excluded) over those who wished not to associate (namely, whites who opposed integration).  If instead he had treated the central issue as one of equal civic status, rather than equal government accommodation of individual preference, Wechsler would have had no problem in seeing that whites’ desire to subordinate blacks and blacks’ desires for equality were constitutionally different from one another.

But whether or not Brown was principled in the sense that Wechsler used that term in Neutral Principles, the decision marks the Supreme Court’s greatest triumph. Precisely because Brown has become the crown jewel of the United States Reports, every constitutional theory must claim Brown for itself.

And so we come to the Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1.  Like the ghost of Hamlet’s father, Brown the opinion makes only a very few, albeit critical, appearances. Although Brown—and what the promise of Brown was—looms over the entire case, it is not until the antepenultimate page of the slip opinion that the Chief Justice’s lead opinion actually cites the 1954 opinion Brown.  (It also occasionally cites the 1955 remedy opinion, but I haven’t the space here to comment on those citations.)  And then, in the course of explaining why Brown demands color blindness, the Chief quotes only a fragment of a single sentence from the opinion.  Referring to segregation, he writes that “[t]he impact is greater when it has the sanction of the law.”  That fragment, the Court claims, supports the view that “[i]t 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.” But re-placed in its context, the quotation from Brown shows how partial, in both senses of the word, his account is.  The sentence immediately preceding the quoted fragment reads, “Segregation of white and colored children in public schools has a detrimental effect upon the colored children.” And the remainder of the quoted sentence itself drives this point home: “The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group.” The vice to which the Brown Court was pointing was neither the provision of inferior tangible facilities nor the simple separation of groups. It was subordination. The reduction of a direct quotation from Brown to a single misleading sentence fragment illustrates the problem the Parents Involved Court faced in trying to enlist Brown: none of Brown’s really quotable language provides any support.

So the Chief Justice and Justice Thomas took an even more extraordinary step in their attempt to claim ownership of Brown: they relied not on what the Court said but on what counsel for the plaintiffs had argued.  Justice Thomas in his concurrence quoted at length from the briefs and oral argument transcripts to assert that “my view was the rallying cry for the lawyers who litigated Brown.  And the Chief Justice offered this example:

As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”

He saw “no ambiguity in that statement”: “What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?”

There’s a phrase in trademark law for what the conservative members of the Court were trying to do: “palming off.”   Palming off occurs when the seller of a product tries to pass off his product as that of a competitor.

Bad move here.   The lawyer who made the statement on which the Court relied, Robert Carter, is still around – and a distinguished federal judge besides.  When he was asked for his reaction to the Court’s reliance on his oral argument, he blasted the Court for turning his argument “on its head.”  So much for Brown originalism as having anything to do with the people who actually brought us Brown.

Now I’m not suggesting that Judge Carter, or Jack Greenberg, or the Legal Defense Fund sue the Court for trademark infringement.  But it does seem important during Black History Month to resist conservatives’ attempts to recast themselves as the true heirs of the Civil Rights Movement.  That movement has tremendous resonance with the American people: just as many individuals choose in the marketplace of things among brands on the basis of their understandings of the manufacturers’ labor or environmental policies, so too many Americans will choose in the marketplace of ideas to align themselves with what they understand to be the legacy of the civil rights movement.  So we should worry that the “neutral principles” the Court now claims to be the message of Brown were once its antithesis.

If you’re interested in reading a more extensive version of these arguments, check out the following articles: Constitutional Law As Trademark, 43 U.C. Davis L. Rev. 385 (2009) and What Can Brown7 Do For You?: Neutral Principles and the Struggle for Ownership of the Equal Protection Clause, 58 Duke L.J. 1059 (2009).