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Summer 1996
   
Coming Clean About Brown
Richard E. Morgan
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Just as political and social institutions that appear as durable as the mountains can collapse almost overnight, leaving us to wonder how we didn't see it coming—think of the implosion of the Soviet Union—so, too, seemingly impregnable intellectual orthodoxies can suddenly stand revealed as so flawed that we're abashed at having accepted them for so long. America is on the edge of such a collapse of orthodoxy in our thinking about the proper role of judges and judge-made law in our governmental process. Central to this change is the demythologizing of the Supreme Court's 1954 desegregation decision, Brown v. Board of Education; and the importance of this development can hardly be overstated. The collapse of Brown as a model for judicial behavior will resonate through many of the most contentious areas of American public policy, from criminal justice and affirmative action to education and welfare reform: for Brown is the mother of contemporary judicial activism-policy making by judges acting essentially as legislators, without any real justification from such ordinary legal authorities as statutory and constitutional texts, history, and precedent. From the Warren Court of the 1960s to the New York State Court of Appeals under Chief Judge Judith Kaye today (see Peter Reinharz, "The Court Criminals Love," City Journal, Winter, 1996), Brown has been talismanic. The arrogant fashion in which Justice Anthony Kennedy, writing for the Court majority, overruled the people of Colorado in May with respect to homosexual rights (Romer v. Evans), without any serious attempt to offer a constitutional reason for doing so, is only the latest example of the Brown style of judging.

Just as with other sudden collapses, arguments undermining the authority of Brown as a model for judging have long been piling up. Right from the beginning, some of the country's most distinguished constitutional lawyers criticized Brown—and especially Chief Justice Earl Warren's opinion, which relied on essentially sociological reasoning to brush aside seventy years of precedent and settled understanding as to the meaning of the Fourteenth Amendment. In a famous article in 1955, Professor Edmond Cahn criticized the Warren opinion's reliance on social science, and very slender social science at that. What happens, Cahn asked, if these findings turn out to be wrong, like so many social science findings? In 1958 Judge Learned Hand noted the lack of a constitutional basis for the decision and gently rebuked the Court for substituting its educational policy judgment for that of the state legislatures. And the following year Columbia Professor Herbert Wechsler argued that the decision embodied no "neutral principle of constitutional law" and therefore lacked the essential characteristic that entitled judicial lawmaking to respect. Many other scholars privately voiced similar doubts and reservations.

But given the virulent segregationist reaction to Brown, commentators of good will felt they had to stifle their criticism. All the eminent early critics of Brown were clear that the outcome of the case was morally right and eminently desirable as public policy; and with the "Massive Resisters"—those Southern politicians and their allies in the press determined to prevent any school desegregation-disinterring arguments about "state sovereignty" and "interposition" thought to have perished at Appomattox, persons of good will had no choice but to rally round the Court. Even if some of the Southern arguments against Brown struck home—(how, for instance, if the Fourteenth Amendment had actually forbidden the states to maintain racially separate schools, had that fact gone essentially unremarked for almost a century?),it was best not to admit it, even to oneself.

But the moratorium on serious discussion could not last. It began to crumble because of scholarly works in the seventies (notably Richard Kluger's Simple Justice) detailing how the decision in Brown had come about. While the tenor of this literature was reverential, deeply troubling disclosures kept popping up.

Take, for instance, the late-life musings of the constitutional historian Alfred Kelly, who served as consultant to the NAACP legal team that prepared Brown for reargument in 1953, after the Court had instructed the plaintiffs to discuss the history of the framing of the Fourteenth Amendment. Kelly recalled that after his careful review of the historical purposes of the Amendment, "I didn't see a good argument that might be available to us" that the Amendment had been intended to forbid states from maintaining racially separate schools. After all, the same Congress that framed the Amendment went on to appropriate funds for the District of Columbia's segregated schools. As he worked on successive drafts of the brief, Kelly confessed, "I am very much afraid that . . . I ceased to function as an historian and instead took up the practice of law without license. The problem that we faced was not the historian's discovery of the truth, the whole truth, and nothing but the truth; the problem instead was the formulation of an adequate gloss on the fateful events of 1866 to convince the Court that we had something of an historical case. . . . It is not that we were engaged in formulating lies. . . . But we were using facts, emphasizing facts, bearing down on facts, sliding off facts in a way to do what [NAACP lead counsel and future Supreme Court JusticeThurgood] Marshall said we had to do—'get by those boys down there.'" Though Kelly and his colleagues finally did produce a very tendentious argument to the effect that the Fourteenth Amendment had aimed to forbid school segregation, the Court ended up ignoring it.

Troubling too was the role played in managing the Brown litigation by Justice Felix Frankfurter. By 1980 several scholars had documented what constitutional law insiders had long known: that after Thurgood Marshall's first, unimpressive argument of the case in 1952, when only four Justices seemed prepared to strike down school segregation, Frankfurter tirelessly maneuvered to have the decision postponed and the matter reargued the following year. At the same time Frankfurter asked his clerk, the future Yale law Professor Alexander Bickel, to review the history of the framing, ratification, and traditional understanding of the Fourteenth Amendment. Bickel's mission: to find something to blunt the legal attack that John W. Davis, lead counsel for the defendant school boards, had launched against Marshall at the first argument. For Davis had had it all going for him—the history of the Fourteenth Amendment, the authoritative judicial interpretation of the Amendment contained in the legal precedents, the weight of scholarly literature. He could return again and again to the theme that a constitutional doctrine that had been in place for seventy years, since Plessy v. Ferguson—that states may establish separate facilities on the basis of race so long as the treatment accorded was otherwise equal—was entitled to be regarded as settled.

In response, Bickel concluded that while indeed there was no evidence that the Fourteenth Amendment had been intended to end school segregation, public education was a smaller and less important social enterprise in 1867 than in 1953. Therefore, Bickel argued, it could be urged against Davis that the original intention of the country in adopting the Amendment was "inconclusive" as to segregation. Frankfurter circulated Bickel's memo to the other Justices, and it was this characterization of history as "inconclusive" that eventually found its way into the amicus curiae brief of the United States, and into Earl Warren's opinion, as a way of rhetorically neutralizing all the historical (that is, legal) arguments that had proved so awkward for the plaintiffs.

The full story of how Frankfurter engineered all this only emerged in 1987 in a Harvard Law Review interview with Frankfurter's former law clerk and close friend Philip Elman, who, during the entire period of Brown, served as a high official in the Solicitor General's office, superintending civil rights matters. Elman had persuaded the Truman Justice Department to file an amicus curiae brief, largely Elman's own work, in the first argument of Brown, urging the Court to declare school segregation unconstitutional. Similarly, the following year he persuaded skeptical superiors in the new Eisenhower administration to file a brief, with himself as the principal author, for the reargument of Brown.

The interview revealed that a Justice of the Supreme Court and the attorney for the United States, participating in a case before that Court, engaged in a sustained collaboration to bring the other Justices around to the outcome they desired. Looking back, Elman recalled, "I knew everything . . . that was going on at the Court. He [Frankfurter] told me what was said at the conference [after the first argument] and who said it." Working secretly with Elman (they had code names by which they could identify and discuss the views of the other Justices), Frankfurter was able to shape the government's brief for the reargument of Brown in late 1953 to fit Bickel's line that the history was "inconclusive." Elman believed that this backstairs management was decisive. "In Brown nothing that the lawyers said made a difference," he opined. "Thurgood Marshall could have stood up there and recited `Mary had a little lamb,' and the result would have been exactly the same."

Erwin N. Griswold, longtime Harvard Law School dean and a former Solicitor General himself, observed of these disclosures that the Frankfurter/Elman relationship would have been "clearly regarded as improper at the time and would be clearly improper now." Elman himself said that he considered Brown "a cause that transcended ordinary notions about propriety in litigation." Had there been a solid constitutional basis for Brown, the impropriety of the collaboration would be only an interesting footnote. But the whole effort had been precisely to obscure the fact that such a constitutional basis was lacking.

How bad was Brown? Constitutionally it was indefensible. Did the American political community, by adopting the Fourteenth Amendment, bind itself by the rule that pupils might not be assigned to public schools based on race? Or, to put the matter more generally, was it the case that "we the people" took upon ourselves in 1868 the principle that government might never, in any of its actions, distinguish among persons on the basis of race?

The answer of the specialized literature is overwhelmingly "No" to both the narrow and the broader proposition. As one commentator recently put it: "In the fractured discipline of constitutional law, there is something very close to a consensus that Brown was inconsistent with the original understanding of the Fourteenth Amendment, except perhaps at an extremely high and indeterminate level of abstraction"—hardly a sufficient basis for the exercise of the power of constitutional review.

Professor Earl Maltz, of the Rutgers Law School at Camden, has put the matter best. He demonstrates that, with respect to certain familiar, well-understood nineteenth century "civil rights" (such as ownership of property, access to the courts, protection by the criminal law, and the legal capacity to enter into contracts), section one of the Fourteenth Amendment established "absolute" equality, allowing no distinctions by race. But with respect to other governmental activities (including, unhappily, public education), the command of equality was "limited," allowing the states some latitude to take race into account in shaping their laws.

This is not to deny that there was a doughty and articulate minority among the framers and ratifiers of the Fourteenth Amendment who did support a broad non-discrimination principle. But the Supreme Court of the early 1950s was not constitutionally entitled to declare the minority position the official one simply because it seemed morally superior to the views that prevailed more generally in the country at the time of ratification. The architects of the Brown decision knew all of this, but they were determined to act in spite of it.

When one turns to the opinion for the unanimous Court written by Earl Warren the picture darkens further. Because the constitutional evidence was powerfully against him, Warren had to resort to writing the kind of opinion he did. He relied on Thurgood Marshall's social scientific studies, already suspected to be methodologically flawed and now quite discredited, purporting to show that black children are psychologically damaged by racial separation in school. (For a recent and devastating assessment of this material, see Justice Clarence Thomas's concurring opinion in Missouri v. Jenkins, decided in the spring of 1995.) In effect, Warren was simply advancing a policy argument for desegregated schools. The actual holding of the Court was that "in the field of public education the doctrine of `separate but equal' has no place." No general principle of constitutional law was advanced (how could it be? the Warren opinion offered no constitutional reasoning on which such a principle might rest); indeed, the 1896 precedent of Plessy v. Ferguson, which had enshrined "separate but equal," appeared on the face of Warren's opinion not to have been overruled-an exception had simply been made to it as regarded schools. The New York Times headline announcing Brown read: "A Sociological Decision: Court Founded Its Segregation Ruling On Hearts and Minds Rather Than Laws." Relying neither on text, nor history, nor precedent, Earl Warren was, in effect, claiming for the Court the authority to revise the meaning of the Constitution based on assertedly better understanding of the values involved and the way things worked in the contemporary world.

But even if Brown was constitutionally wrong, wasn't it historically essential? After all, in 1954 Jim Crow was a long-established feature in the American social and legal landscape, assumed constitutional for over half a century. Warren contemplated its dismantling from the top down by unelected judges. Didn't he accomplish this with Brown, triggering the modern civil rights revolution, even if the role his opinion implicitly claimed for the Court went beyond both American constitutionalism and democratic theory? Wasn't this a luminous instance—indeed the luminous instance—of the proper role of the Supreme Court, the one now broadcast in thousands of high school civics courses, the one we encounter in freshman term papers, and the one prevalent in the mass media: that it is the Court's job to "keep the Constitution up to date" and "to deal with divisive problems that the political branches can't solve?" Without Brown, isn't it true that the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the entire structure of state and federal law breaking down public and private racial discrimination would never have happened?

This view has been endlessly repeated and written into textbooks to such an extent since the late 1960s that it has become one of those things that "everybody knows." Yet it has been discredited by recent scholarship.

In 1991 Gerald N. Rosenberg, a University of Chicago political scientist, published The Hollow Hope: Can Courts Bring About Social Change? Rosenberg's answer to the question his title posed was an emphatic "No," and his prime exhibit was the Court's initiative in Brown v. Board. To summarize his well-evidenced argument: very little actually changed in the segregated South in the decade between Brown and the passage of the Civil Rights Act. The impact of Brown in the border states and the District of Columbia was somewhat greater, but (and this is now a commonplace of the scholarly literature) it was the passage of the Civil Rights Act in 1964, the Elementary and Secondary Education Act in the same year, and the Voting Rights Act the next year that provided the federal government with the statutory muscle to undertake the heavy lifting involved in dismantling Jim Crow.

But if Brown did not, in and of itself, remove the American color bar, isn't it still true that Brown was the inspiration that eventually led to congressional and executive branch action in civil rights? Here again, the conventional wisdom appears to be wrong. Michael J. Klarman of the University of Virginia Law School, in two major articles published in 1994, made a powerful case that, far from advancing positive change in American race relations, Brown may even have set progress back temporarily.

In the 1940s American attitudes toward race were changing, more slowly in the deep South, but even there. World War II and the revulsion against Nazi racial theories generated one powerful force for change, and the perceived imperatives of world leadership in the Cold War provided another. (President Truman called racial discrimination "an invitation to Communism.") Even more important was the Great Migration, which during the 1920s and 1930s, and particularly during the war years, saw African Americans leaving the South (where 90 percent had lived in 1900) for northern cities. And these cities were largely in seven states (New York, New Jersey, Pennsylvania, Ohio, Michigan, Illinois, and California) that account for nearly 80 percent of the electoral votes necessary to elect a president. Blacks became a pillar of the Roosevelt coalition, enabling the Democrats to become competitive in key states that had been comfortably Republican for decades. This newfound black support, as Klarman shrewdly observes, "left [the Democrats] freer to compete for northern black votes at the risk of alienating the South."

Finally, the increasing economic integration both of races and of regions in the post-war period generated its own powerful pressure. The economic isolation of the South was breaking down, and the costs of maintaining Jim Crow were rapidly mounting. (University of Chicago law professor Richard Epstein, in his 1992 book Forbidden Grounds, has made an eloquent case for the power of the marketplace in eroding segregation by raising the costs of discrimination.) After detailed examination of these trends, Klarman concludes, that "a transformation in American race relations was, by mid-century, a virtual inevitability." At the very least, we can say that the decentralized processes of normal American democracy were beginning to work on segregation. Brown, by dramatically increasing racial tension in the South, froze progress, at least in that region.

As Klarman sees it, the only way Brown contributed to positive change was a perverse way: by provoking an ugly, sometimes violent, resistance to the desegregation of schools, it stimulated a northern backlash, which may in turn have hastened somewhat the passage of new national civil rights legislation. As for inspiring the civil rights movement of the 1960s, Klarman asks, "If Brown gave a vital inspirational spark to the civil rights movement, why did the volume of civil rights protest activity decrease during the 1950s?" And he notes that the "1957 prayer pilgrimage commemorating Brown, which seems to confirm the decision's symbolic importance, was noteworthy mainly for its `disappointing' turnout."

Late last year an important book by Paul Craig Roberts and Lawrence M. Stratton appeared, pulling all these scholarly bits and pieces together into a polemical indictment of Brown that it will be hard even for the legal establishment to ignore. The New Color Line traces the real intellectual roots of the desegregation decision to 1944—to the influential argument of Gunnar Myrdal's An American Dilemma that, as Roberts and Stratton put it, "America's racist impulses were so strong that segregation could not be overturned through the democratic process. . . ." Dramatic reform from the top down appeared to Myrdal the only hope, and the Supreme Court, applying what he called the "spirit of the Reconstruction Amendments," was his candidate for that job. The Court's acceptance of the invitation, well meaning as it was, attempted to dismantle segregation (a profoundly important end) by means that were profoundly wrong. Not only did this judicial fiat traduce democracy, substituting the will of the judges for decision by the people and their representatives; it disregarded fundamental constitutional forms (federalism, separation of powers, and the procedures for amending the Constitution prescribed by Article V). Brown was breathtaking elitism in the name of "rights," and Roberts and Stratton are surely correct that this launched the modern era of judicial "reform," in which purportedly noble ends can justify even the most constitutionally suspect means. Brown launched "The Warren Court," with all that epithet implies.

Consider this simple question: why does judicial activism still abound? For example, only last spring a federal appeals court declared unconstitutional New York's law prohibiting physician-assisted suicide. This issue is one of the most divisive in America today, and only the most tortured reasoning can suggest that it is foreclosed by anything in the Constitution of the United States. Perhaps the law needed changing (I happen to think so myself) but surely the people of the State of New York were entitled to have the question debated and decided by a vote of their elected representatives. Instead, three federal judges told them what was best.

After decades of conservative electoral outcomes and hundreds of state and federal judicial appointments intended to end "judicial legislation," and with public opinion sullenly resistant to much of the social engineering ordered from the bench, how is it that legally unjustified judicial interventions into policy making and administration still occur routinely? Why does our sprawling "rights industry" continue to grow and succeed so often in persuading judges to establish policies that cannot be put in place through the normal democratic processes of election and legislation? No single factor satisfactorily accounts for the powerful persistence of judicial activism in a period in which it is intellectually discredited and widely unpopular. The atavistic radicalism common in law faculties is certainly part of the answer (see Heather Mac Donald, "Law School Humbug," City Journal, Autumn, 1995). But a neglected key to understanding why judicial activism has proved so hard to stop is the aura of legitimacy bestowed on it by Brown.

The most famous and dramatic of twentieth-century Supreme Court decisions, Brown ushered in the modern era in constitutional law-the vaulting experimentation in policy innovation by judges that has more recently spread from the federal judiciary to the states. In the wake of Brown,  constitutional law came to exercise the same sort of appeal to progressive reformers as economics did in the 1930s. Courts were now seen as a source of governmental power that could force unpopular changes that could not be secured through representative institutions—a shockingly illiberal proposition when made explicit, but wonderfully exciting as long as it is cloaked in euphemisms about helping democracy overcome "deadlocks." If judges could sidestep the electoral and legislative processes, bypassing the very forms of the Constitution, in order to serve the higher good of ending Jim Crow, then judges could do many things about which the country was deeply divided.

It was after Brown that "progressive" elites (their ranks already beginning to swell with the post-war expansion of the law and graduate schools) came to "regard the Constitution not as a form of government but as a means of getting what they want," as Professor Harvey Mansfield of Harvard puts it. Over the last four decades the corpus of constitutional law has increased vastly as courts have removed issue after issue from the arena of popular decision and subjected them to judicial control. The law schools reflect that change. Constitutional law, usually a one-semester elective for second-year law students in 1960, today has migrated into the required first-year curriculum, and the great national law schools offer 20 to 30 second- and third-year courses devoted to the subject. And what do they learn? One popular con law text book actually begins with Brown instead of Marbury v. Madison, in which Chief Justice John Marshall first laid out the Court's much more modest claim of judicial review in 1803.

There has been opposition to all this, of course, but opponents are hobbled by fear of what has come to be called "the Brown card." The scenario is familiar: after arguing that some particular judicial initiative or other is without foundation in text, or original understanding, or history, and is therefore illegitimate, the critic of judicial activism is faced with the question, "Well then, you must be opposed to Brown v. Board of Education." Instantly darkness descends; the critic feels the stab of panic. For affirming the correctness of Brown is now conventionally understood to be a minimum qualification for being taken seriously in polite society: to criticize Brown is to risk being called a racist. Suddenly the issue is not one of intellectual disputation but of social respectability. Therefore the critic scrambles: "Yes, I support Brown as a marvelous achievement of judicial statesmanship; it is just looking to Brown as the model for constitutional judging that I condemn." So ingrained has this reflex become on the part of critics of judicial activism that it is often offered in an anticipatory fashion, so as to ward off attack and embarrassment.

An example is an otherwise excellent article by Harvard law professor Mary Ann Glendon in a recent issue of Commentary. Glendon deplored the "expansion of the role of the judiciary in American life" exemplified by Justice William Brennan. Quite correctly, she saw Brown as ushering in the style of judging to which she was objecting. But she was at pains to distinguish between the "effects of Brown on the legal profession and on the legal order as a whole" and the Brown decision itself. She held that "although scholars may argue about its foundations in constitutional text and tradition," Brown was indeed "a great act of statesmanship."

The truth, of course, is that scholars do not argue very much about Brown's "foundations in constitutional text and tradition." Agreement is widespread that solid foundations did not exist. But if nevertheless Brown is still to be elevated as an act of great statesmanship, then how was Justice Brennan wrong to believe that the Court possesses both the power and the duty "to promote social and political change," the view that Glendon opposes? Perhaps Glendon would argue that the Court was justified in 1954 in acting in an extra-constitutional fashion because of the moral gravity and magnitude of the issue, but that one is still free to deplore the later extra-constitutional rulings of the Court, modeled on Brown, because these respond to matters of lesser import. Many commentators resort to this position, but it is untenable. Once one admits a role in one case for the Court as extra-constitutional promoter and architect for social change, it is impossible to explain why that justification should not apply to other situations.

But if we accept the "wrongness" of Brown as a model for judging, won't the sky fall? In fact, all the changes in the universe of American public law would be positive. Jim Crow would not come winging back. As far as discriminatory action by government goes, the Civil Rights Act of 1964, which is color-blind in its prohibitions, covers much of what government does. Private sector discrimination was never thought to be controlled by Brown or section one of the Fourteenth Amendment. All the prohibitions on private sector discrimination (in everything from restaurants to colleges) are statutory-stemming from either the Civil Rights Act itself or from state law-and would remain firmly in place.

To be sure, judicial activism in the Brown mold has created a problem with the way these laws are now being enforced. This is especially true of the Civil Rights Act, which was born color-blind but has since acquired a profound race-consciousness. Today judges widely interpret it to allow the continuation of affirmative action programs that are in fact quite illegal. Rejecting the Brown model will put us in a stronger position to put things right again.

Nothing could be clearer than the language and the legislative history of the 1964 Act: there was to be no discrimination by race-no choosing on the basis of race by any covered entity, governmental or non-governmental. Yet in the case of United Steelworkers v. Weber, in 1979, a majority of the Supreme Court, speaking through Justice Brennan, managed to hold that an affirmative action program that reserved 50 percent of the openings in a company training program for black employees did not violate the Act. In dissent, Justice William Rehnquist remarked that: "[By] a tour de force reminiscent not of jurists such as Hale, Holmes, and Hughes, but of escape artists such as Houdini, the Court eludes clear statutory language, 'uncontradicted' legislative history, and uniform precedent in concluding that employers are, after all, permitted to consider race in making employment decisions." But Brennan was only following the precedent Earl Warren set in Brown. At the time of the passage of the Civil Rights Act in 1964, color-blindness was considered by virtually all involved, including civil rights professionals, the proper public policy for America. By the time of Weber fashionable opinion among legal and civil rights elites had changed, and race-consciousness was increasingly thought desireable. Brennan was simply "bringing the Civil Rights Act up to date"—conveniently overlooking what the country had adopted in 1964, in order to allow what he considered a more enlightened policy. That a pious fraud has been perpetrated on the Act should not, however, be allowed to obscure the fact that it remains an altogether adequate guide for the judiciary, if they would but follow it.

But what of those governmental actions not covered by color-blind statutory law? What about such things as racially gerrymandered congressional districts and federal contract set-asides that are subject only to the Fourteenth Amendment? The answer is straightforward: since the Amendment did not embody a general principle of color-blindness (that's why Brown was wrong in the first place), we cannot ask courts to hold all governmental race-consciousness unconstitutional. For conservatives to presume to find in the Fourteenth Amendment a sweeping prohibition of affirmative action is just as objectionable as yesterday's liberals presuming to find in it a prohibition of school segregation.

Our resort in those areas not covered by color-blind statutes must be political rather than judicial, and the prospects for political success just now are good. For instance, the Dole-Canady Bill now before Congress would eliminate race preferences in federal employment and contracting. It is certainly passable, and perhaps even passable over President Clinton's likely veto. As to racially gerrymandered districts, a simple amendment to the Voting Rights Act would do the trick.

Most important, we must seek to secure passage and ratification of a constitutional amendment specifically barring government at any level from making decisions that either advantage or disadvantage persons based on race. This would finally complete the work of Reconstruction, align the text of the Constitution with our national ideals, and bury Jim Crow the way he should have been buried in the first place-by votes in legislative assemblies. The support currently enjoyed by the California Civil Rights Initiative and similar color-blind measures now making progress in other states suggests the political feasability of such a course. Moreover, a national amendment can be sent to the states for ratification by two-thirds votes in the House and the Senate and would not require the assent of President Clinton.

Achieving these goals would leave us better off in several important ways. First, we could be honest about where we are and how we got there. We would no longer need to tell lies about the dead. Second, a color-blind constitutional provision would put Plessy v. Ferguson unambiguously behind us. We would have at least a principle of constitutional law with respect to race-something far superior to the Supreme Court's present muddled treatment of the subject, which boils down to the position that choosing by race is usually not allowed except when a majority of the Court thinks the justification sufficiently persuasive. Third, the principle would be the morally correct one and would embody the policy favored by a substantial majority of the American people. Even proponents of affirmative action agree that color-blindness is the ultimately desirable policy, arguing only that we aren't quite ready for it yet.

Finally, and most important, we would be freed to mount a truly comprehensive attack on judicial activism. Brown would lose its capacity to intimidate. It would become an example of precisely what judges should not be doing. The judge as social engineer, accommodator of social change, adjuster of mores, updater of constitutions, breaker of political deadlocks, moral educator, midwife to future moral and political consensus (which may or may not emerge)—all these would cease to be legitimate because Brown v. Board of Education was so right and would become suspect because Brown was so wrong. This is a rhetorical point, but it bears remembering that rhetoric is central to the process of politics and political change. Changes in public discourse resonate even in judicial chambers. We have traveled a long way as a society from the 1960s, when judicial social engineering based on the Brown model took hold. Huge new bodies of judge-made law constrain us on all sides. New restrictions on what Americans can do in their communities, state legislatures, and the national Congress, are being fabricated apace. It is no accident that this period of imperial expansion by the judiciary coincides with a period of precipitous increase in American social problems and a decline in the quality of life, especially in our cities. The courts did not cause the decline, but they often have made it more difficult for communities, through the processes of self-government, to cope with their problems. In the decades since Brown we have seen our churches and other voluntary institutions (ligaments of what it is now fashionable to call "civil society") increasingly isolated from the public square; we have seen our schools destabilized, our law enforcement enfeebled, the maintenance of order in our streets undermined, and major public sector institutions taken over and run by judges. Prisoners' rights cases raise the costs of incarceration and spin the revolving doors of the criminal justice system ever faster. Students' rights cases render the public schools unmanageable. ACLU lawyers fight youth curfews, and "advocates" for the homeless, the mentally ill, and "undocumented aliens" buzz around the courthouse. We are constrained by many rules and taxed for many costs which we as self-governing people did not choose for ourselves but were chosen for us by judges who thought they knew better.

If the political mobilization of the past few years directed at arresting and reversing American social decline is to succeed, we must curtail judicial activism-that is, we must persuade courts (meaning judges) through the appointment process, through reasoned argument, and through mobilized public opinion, to conform to a more traditional conception of their role and to abandon the more heroic role that Brown popularized. This will not be easy. Judicial activism is a way of life for the interest-group lawyers, law professors, and judges who take part in it. But getting on with the job of curtailing judicial legislation is an absolutely essential part of reinvigorating self-government and arresting social decline in America at the end of the century. Its precondition: coming clean about Brown.

 

 

 
Time to tell the truth about the case that corrupted our constitutional law—and to pass a color—blind constitutional amendment at last.
City Journal Summer 1996.
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