Ken Mack, Harvard Law School, who is writing a greatly anticipated history of civil rights lawyers, had this to say in the Los Angeles Times on Wednesday:
AS THE Supreme Court wrestled with race-conscious school assignments in Seattle and Louisville, Ky., last week, the justices drew historical figures into the debate. In the most heated bits from the various opinions, each side accused the other of contradicting the objectives of the individuals who laid the groundwork for Brown vs. Board of Education.Mack uses Justice John Marshall Harlan, author of the famous dissent in Plessy v. Ferguson, and Charles Hamilton Houston, the initial architect of the legal strategy leading to Brown as two examples. Then he continues:
In his opinion, Chief Justice John G. Roberts Jr. quoted Robert L. Carter — the black plaintiffs' attorney in Brown — to support the proposition that the Constitution prohibits school districts from taking race into account in student assignment. Justices John Paul Stevens and Stephen G. Breyer, on the other hand, argued that the principles of racial integration expressed in Brown required the high court to uphold the school districts' use of race.
Roberts' argument carried the day. But the justices' disagreement illustrates a problem well known to generations of law school students: When trying to decide a hard case, you can find two valid, established legal principles that will lead to two diametrically opposing conclusions. This observation was first articulated by an early 20th century group of reformers called "legal realists." The hardest cases, they noted, are the products of long-standing, unresolved societal conflicts — so precedents often support both sides. As one phrased it, legal principles "are in the habit of hunting in pairs."
The same problem plagues historical interpretations. But that doesn't prevent supporters and opponents of race-consciousness from buttressing their stances with references to the principles held by famous civil rights figures. "History will be heard," asserted Roberts. But if history speaks on this subject, it does so in two voices....
Even Carter, invoked to great effect by Roberts, presents a similar historical problem. Carter, 90, is a federal judge in New York, and he recently published an autobiography. One cannot read it without concluding that he followed a set of lifelong moral principles that were utterly opposed to racial segregation. When Brown was wending its way through the courts, it was certainly possible to find him arguing that any use of race in school assignment is constitutionally suspect.For the full op-ed (recommended) click here.
Yet Carter later admitted that his efforts in Brown were focused on overturning Plessy's separate-but-equal doctrine, not at formulating a legal rule to guide future attempts to create racial equality. Indeed, within a decade of the Brown decision, he confessed to having mixed feelings about the use of race-conscious remedies to achieve integration, though he eventually firmly endorsed them....
History has a lot to tell us, but it rarely provides a clear signpost. In hard cases, historical precedents, just like legal ones, are in the habit of hunting in pairs.
The implications of the review seem to be that the question of whether Justice Roberts got the history of Brown right is so wide open, that it is not possible to answer the question. While Mack is right that questions of historical interpretation are not straightforward, and, by implication, the invocation of history by courts and lawyers is problematic, I disagree with Mack about whether the history of Brown was so muddled back in 1954.
Robert Carter himself was very clear about it when interviewed about Roberts' use of his Brown oral argument, after the opinion was released. As the New York Times reported, “All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use is now.”
The difference between Mack's take on the issue and Carter's may not be a failure of memory, although it is the case that historical figures remember the past differently as time continues to unfold. Perhaps it is in part a question of focus: on the right, or on the remedy. Judge Carter and his colleagues worked for an interpretation of the right -- 14th amendment equality -- that would invalidate laws that were a product of a history of racial subordination. They worked to overturn a system of discrimination informed by an ideology that one race (whites) was superior to others. As an initial remedy, they sought to have the bar to African American enrollment in white schools come down. Even this remedy was postponed, for most students -- even named plaintiffs -- for many years.
There was always a difference of opinion within communities and among leaders about what the world might look like when enforced segregation was a thing of the past. It was W.E.B. DuBois, for example, who angered his NAACP colleagues in the 1930s when he argued that what African American children needed was not integrated schools, but a good education. These questions legitimately arise in contemporary school cases once the barriers to entry are abolished, but the impact of unconstitutional racial subordination must be remedied.
But Roberts' opinion was not about how best to remedy racial subordination. His opinion was about the substance of the 14th amendment right. He used Carter's words to support an argument that Carter did not make in Brown: that when School Boards consider racial balance as part of their educational policies, having the goal of improving the education of everyone, they are engaging in the kind of behavior Carter sought to eradicate in Brown.
The equivocation that Mack finds in Carter's past words is equivocation about remedies. When it came to the meaning of the right itself, I'll take my cue from the chorus of Brown's surviving participants. “The plaintiffs in Brown were concerned with the marginalization and subjugation of black people,” Jack Greenberg said. And from William T. Coleman: “to say that the people Brown was supposed to protect are the people it’s now not going to protect....It's dirty pool."
Shavar Jeffries at BlackProf offers his take on the Brown opinion itself here.