The standoff has come to resemble a serious game of chicken. If the nominees say Brown was correctly decided, are they obligated to opine on more controversial precedents, in particular Roe v. Wade, which established a woman’s right to abortion? Some nominees say the Democratic senators are not content with statements calling segregation immoral.
The other side says the refusal to engage undermines the national consensus around equal protection under the law that underlies Brown.
That decision, announced 65 years ago Friday, is widely seen as one of the Supreme Court’s greatest moments, with the court’s unanimity sending a powerful message to a segregated nation.
The matter was especially pronounced in the nomination of Wendy Vitter, who was confirmed Thursday as a federal district judge in Louisiana without the vote of a single Democratic senator.
“I don’t mean to be coy, but I think I get into a difficult, difficult area when I start commenting on Supreme Court decisions — which are correctly decided and which I may disagree with,” Vitter said during her confirmation hearing. “If I start commenting on, ‘I agree with this case,’ or ‘don’t agree with this case,’ I think we get into a slippery slope.”
“I was stunned by her answer,” Sen. Richard Blumenthal (D-Conn.), who posed the question, said this week on the Senate floor. “Brown is woven into the fabric of our nation. How could anyone suggest disagreeing with Brown, as she did?”
Blumenthal, who regularly asks Trump district and circuit court nominees about Brown, said he assumes they are acting on orders from the White House not to give an opinion about any case on the books.
A Justice Department spokesman replied: “Nominees are not instructed on how to answer any question.”
Some conservatives say judicial nominees are right to avoid the question, suspecting that Democrats are trying to force nominees down a politically dangerous path.
“If they say yes, the next question is, what do you think of Roe v. Wade?” said John O. McGinnis, a law professor at Northwestern University’s law school. Indeed, Blumenthal typically asks about a variety of controversial cases along with Brown.
“Brown is widely regarded as a landmark decision implementing the equal protection guarantee. I think the left is playing games with it precisely because it does have this stature,” said Edward Whelan, president of the Ethics and Public Policy Center, a conservative think tank.
Civil rights activists are appalled by the nominees’ refusal to answer the question, saying their reluctance to engage on bedrock civil rights law undermines national consensus that has developed against school segregation.
The NAACP opposed Vitter and other nominees who refuse to affirm Brown. The Leadership Conference on Civil and Human Rights sent a letter to senators urging them to vote no on the 27 nominees it counts who have declined to answer the question. The group identified four nominees who endorsed the decision.
“The Brown decision ended legalized apartheid in America’s school system, and it set the stage for African-American integration into all facets of American life,” wrote Vanita Gupta, president and CEO of the Leadership Conference.
Brown v. Board of Education had a sweeping effect on U.S. schools, as the system of school segregation was dismantled and black and white students in some cities were bused to schools under court orders to achieve integration. The decision ushered in significantly more racial integration in other aspects of American life, too.
Now, some of that progress has been reversed. The busing that resulted from the decision was widely unpopular in some cities and triggered significant white flight to the suburbs. A study by the Civil Rights Project at the University of California at Los Angeles finds that progress made in educating black children with white children eroded after courts released school systems from desegregation orders.
The Supreme Court has been torn over the proper interpretation of Brown: whether it is a mandate for colorblind decision-making or a tool for integrating schools.
In considering cases from Seattle and Louisville in 2007, the court voted 5 to 4 to invalidate programs that used race as a factor in assigning students to schools. Chief Justice John G. Roberts Jr. wrote that classifying children by race for desegregation was constitutionally no different from classification by race for segregation.
“Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin,” Roberts wrote. “The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again — even for very different reasons.”
He then delivered one of his most memorable lines in his tenure as chief justice: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
If well-known, it was not universally well-received. Justice Anthony M. Kennedy joined the majority to invalidate the specific plans, but said he could not go along with Roberts’s broader pronouncements. “Fifty years of experience since Brown v. Board of Education should teach us that the problem before us defies so easy a solution,” Kennedy wrote.
The court’s liberals said that Roberts’s reading stood the intent of Brown on its head and that its work was not done.
“The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown,” Justice Stephen G. Breyer wrote in his dissent. “To invalidate the plans under review is to threaten the promise of Brown.”
Justice John Paul Stevens declared: “The chief justice rewrites the history of one of this court’s most important decisions.”
In a recent interview, Stevens repeated what he wrote in his dissent: that no member of the Supreme Court he joined in 1975 would have agreed with Roberts.
But during his own confirmation hearing in 2005, Roberts did not hesitate to endorse Brown. And he has repeatedly praised the “genius” of the spare decision that could be embraced unanimously by the court.
Justice Brett M. Kavanaugh, at his confirmation hearing, called the decision “inspirational” and the “single greatest moment in Supreme Court history,” although Justice Neil M. Gorsuch resisted efforts during his confirmation hearing to pin him down on any Supreme Court precedents.
Beyond confirmation questioning, Brown has proven to be a tricky question in the past for conservative jurists. That’s especially so for “originalists” such as the late Justice Antonin Scalia, who argue that the Constitution should be interpreted based on how its words and amendments were understood at the time they were enacted.
It is difficult to argue under an originalist approach that the promise of equal protection in the 14th Amendment required desegregation because it was adopted during a time of strict, state-sponsored segregation.
Scalia said he would have voted in dissent in Plessy v. Ferguson, the 1896 decision that upheld racial segregation and the policy of “separate but equal,” but he hated the question.
“Waving the bloody shirt of Brown again!” was Scalia’s common response when asked about it.