Sherrilyn Ifill is president and director-counsel of the NAACP Legal Defense and Educational Fund.
Since April 2018, more than two dozen executive and judicial nominees have declined to endorse the Supreme Court’s unanimous decision in Brown v. Board of Education. This week — one that marks the 65th anniversary of the landmark ruling that struck down legal apartheid in this country — the Senate is poised to confirm three of those judicial nominees to lifetime seats on the federal bench.
That is simply unacceptable.
Few of us — no matter our race, color or creed — would recognize our democracy or legal system without the changes touched off by this momentous civil rights case. For nearly 65 years, the legal consensus around Brown was unequivocal. With its transformational opinion eviscerating segregation and codifying the modern contours of equal justice, Brown remained above partisanship, ideology and everything else.
Even the most conservative judges affirmed its centrality to our nation’s democratic character. At his 2005 confirmation hearing, Chief Justice John G. Roberts Jr. repeatedly affirmed his agreement with Brown. That same year, Justice Samuel A. Alito Jr. explained that Brown “vindicated what the equal protection clause of the 14th Amendment was supposed to mean, which was to guarantee equal rights to people of all races.” Just last year, Justice Brett M. Kavanaugh described Brown as the “single greatest moment in Supreme Court history.”
But in April 2018, Trump judicial nominee Wendy Vitter bucked more than a half-century of unanimity by failing to offer support for the Brown decision. In response to Sen. Richard Blumenthal’s (D-Conn.) request for her position, Vitter said, “I don’t mean to be coy, but I think I get into a difficult area when I start commenting on Supreme Court decisions, which are correctly decided and which I may disagree with.” Judicial nominees such as Andrew Oldham, Neomi Rao and Michael Park followed Vitter’s lead.
This response simply doesn’t pass muster. The reluctance to speak about Brown cannot be explained by the rationale frequently offered by nominees who refuse to answer questions about Citizens United, for instance, namely that the case is one that might come back before the court. But no serious legal analyst thinks the issue of segregation will be relitigated ever again. In 2005, Roberts deemed Brown as unlikely to come back before the court as Marbury v. Madison, the 1803 case that established the principle of Supreme Court judicial review.
More recently, and more perplexingly, President Trump’s nominee for deputy attorney general also refused to answer the question. This is unprecedented territory for a Justice Department nominee during the Trump administration, and it appears to be new ground for a Justice Department nominee in any administration since the watershed decision. Jeffrey Rosen said he could not be expected to go through “thousands of Supreme Court opinions and say which ones are right and which ones are wrong.” But the deputy attorney general oversees the Justice Department’s Civil Rights Division, whose mandate is to enforce the nation’s civil rights laws and precedent, including Brown. We do, in fact, have a right to know his position.
So, what’s the real reason these executive and judicial nominees are suddenly demurring on Brown? The ugly truth is that declining to offer approval of Brown signals a willingness to question the project of democracy that Brown created — one in which African Americans and other marginalized groups compelled the federal courts to honor the spirit of equal justice embodied in the words of the 14th Amendment. And this isn’t just deeply troubling; it’s also downright dangerous.
Once positioned near the center of the canon of Supreme Court jurisprudence, it’s hard not to conclude that a move is afoot to move Brown to the margins. If distancing oneself from Brown becomes an accepted marker of conservative legal bona fides, something monumental will have shifted in American legal thinking and values.
But there has been little public outrage about this clearly orchestrated response by Trump nominees. That is a colossal mistake. Perhaps we have blown past so many norms and guardrails over the past two years that we have become numb to the onslaught. But we must awaken from this paralysis. This year, when so much is at stake, we must reclaim Brown. We must demand that all nominees to the federal bench offer their support of this central feature of the rule of law in the United States.
If we are to pass down to our children a system that will protect their rights for decades to come, we must reject nominees who reduce Brown to merely one among “thousands of Supreme Court opinions” rather than as a seminal case that anchors our very conception of modern American democracy.
Support for Brown should be regarded as a low bar to clear for any judicial or Justice Department nominee. That scores of Trump nominees have been confirmed despite a refusal to even approach this simple question is a shameful reminder of how far we have moved away from principles that once enjoyed broad consensus in this “new normal.” Nominees either support Brown, the rule of law and equality under the law, or they do not. And if they do not, they put our very democracy at risk.