A dubious effort to use Brown v. Board of Education to attack the current Supreme Court

May 23

In an Atlantic article advocating term limits for Supreme Court justices, American Enterprise Institute scholar Norm Ornstein makes some extremely dubious statements about the present Court and how it might have decided Brown v. Board of Education:

[W]hat would have happened if the current Supreme Court were transported back to decide Brown. Two years of deliberation? No way. Unanimous or even near-unanimous decision? Forget it. The decision would have been 5-4 the other way, with Chief Justice John Roberts writing for the majority, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—leaving separate but equal as the standard. The idea that finding unanimity or near-unanimity was important for the fabric of the society would never have come up.

Almost everything in the above statement is wrong. To start with the most obvious point, a Supreme Court justice who believes that the government should “stop discriminating on the basis of race” would have no trouble striking down school segregation laws, regardless of whether the separate schools were “equal” or not. Jim Crow segregation laws were nothing if not blatantly obvious examples of discrimination on the basis of race.

It is also incorrect to suggest that the present Supreme Court often fails to reach unanimous decisions because the justices don’t believe that unanimity is beneficial or are less willing to compromise than those of the 1950s. As Ornstein partially recognizes elsewhere in his article, Chief Justice John Roberts is actually a strong advocate of unanimity. The reason why today’s Court is less likely to reach unanimous decisions in major cases than the Brown Court was is because today’s Court has much greater ideological and methodological diversity. Eight of the nine justices who decided Brown were New Deal Democrats appointed by FDR or Harry Truman, and the ninth (Chief Justice Earl Warren) was a liberal Republican who largely accepted the New Deal approach to constitutional law. It’s much easier for the justices to reach unanimous agreement when they don’t disagree very much to begin with. If one party had controlled the presidency and Congress for 18 of the last 20 years (as was true when Warren was appointed in 1953) and many of the other party’s legal elites largely accepted the dominant party’s positions on constitutional law, we would see a lot more unanimity on the Supreme Court today.

It’s also far from clear that unanimous agreement is necessarily better than division. Is it really preferable, for example, that the Court be unanimously wrong about an important issue than closely divided? In some case, a closely divided decision that states a clear rule may be better than a unanimous one where consensus has been achieved only by convergence on a vague lowest common denominator that provides little effective guidance to lower courts. Unanimity may be a bad deal if it comes at the expense of clarity.

Brown itself might have been a better decision had the justices been willing to forego unanimity in order to write a stronger and clearer opinion. In part because of Earl Warren’s desire to achieve unanimity, the Brown opinion does not actually overrule Plessy v. Ferguson or recognize that the Southern states had adopted Jim Crow segregation primarily because of racist hostility towards African-Americans. As a result, the opinion failed to set up clear rules for what kinds of racial classifications are unconstitutional or even clearly indicate how soon southern states were required to desegregate their schools. The justices hoped that a unanimous and relatively opaque decision would diminish political backlash. But southern segregationists engaged in “massive resistance” anyway, resistance that took many years to overcome. The resistance was so extensive that it seems unlikely that things would have been significantly worse had the Court decided the case by an 8-1 or 7-2 margin (as might have happened if Warren had written a stronger opinion). Regardless of what the Court said or how many justices supported it, there was no way to abolish a deeply rooted institution like racial segregation without significant conflict and social upheaval.

There is a serious case to be made for Supreme Court term limits. I have some sympathy for the idea myself. And there are plenty of serious criticisms of the Roberts Court. But Ornstein’s use of Brown doesn’t do much to further either cause.

UPDATE: I should note that the fact that Roberts’ theory of the Equal Protection Clause can easily justify Brown does not mean that it is necessarily correct. There are many different interpretations of the Clause that are compatible with Brown, some of which would also allow judges to uphold affirmative action programs of the kind Roberts believes to be unconstitutional. My point here is not to prove that Roberts’ position is correct, but to show that it is absurd to attack it on the basis that it would require him to uphold the school segregation laws that Brown struck down.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" (forthcoming) and "Democracy and Political Ignorance: Why Smaller Government is Smarter."
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