Thursday, July 5, 2007

Mack, Which Side is Brown On?

UPDATE: Be sure to read Ken Mack's response in the comments following this post.

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.
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....
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:


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.

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.

For the full op-ed (recommended) click here.


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.

3 comments:

Kenneth Mack said...

First, let me take the time to thank Professor Dudziak for posting my op-ed and writing such a thoughtful response.

I just have two points to make in response:

First, I think Dudziak and I are actually in agreement on my main point. We seem to disagree because I believe she has not interpreted my piece quite properly. I don’t blame her for this; it may be a product of the limitations of the op-ed form, in which the LA Times editors cut out a substantial portion of my original draft.

Dudziak says that “[t]he 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.” Actually, I thought that the review was perfectly clear (or at least I intended it to be). I am answering the question of whether Roberts got the history of Brown right. He did not. Moreover, the other Justices who debated this issue did not get the history right, either.

My main point is one the I think Dudziak agrees with (this much seems clear from the rest of her post): it is quite difficult to take the historical actors cited by the Supreme Court forward in time and give a simple answer to the question: “How would they have decided the Seattle and Louisville cases?” Of course, we live in a different context than these historical actors did. The statements of Justice Harlan and (now Judge) Robert L. Carter that the Justices quoted and cited were made in the context of Jim Crow segregation, not today’s context.

With regard to Judge Carter, I make it fairly clear that what I am arguing is that one simply cannot take his 1950s statements forward in time and read him as saying something about what we face in the present. Moreover, as Dudziak says explicitly in her own post, African Americans during the Jim Crow era were deeply divided over some aspects of segregation. One would expect the historical Carter to have manifested some of that division. He was clear that de jure segregation was unconstitutional but beyond that it is impossible to tell what he would have thought, in the early 1950s, about racial controversies that erupted in the decades after Brown without doing violence to the historical method.

Contrary to what Dudziak has posted, I don’t think there is any basic disagreement between what Judge Carter said in his New York Times interview and what I say in my op-ed. Judge Carter says that the Court did violence to historical context by using him in the way it did, and so do I.

What the Court did wrong was to think that questions of historical speculation could be given definite and absolute answers. Thus I am answering the question of whether Roberts, and the other Justices, got it wrong. My point is a basic historians’ point, and I am sure the Dudziak agrees with it.

Second, I think Dudziak and I do disagree over what she calls the difference between the “right” and the “remedy” in Brown. As indicated in my op-ed, I am enough of a Legal Realist to be skeptical of most attempts to make much turn on the distinctions between rights and remedies. I believe that the historical Carter would have been also.

Some of the more well-known Jim Crow-era race cases (which Carter would have been intimately familiar with) turned on the Court’s manipulation of the distinction between rights and remedies. The pivotal disfranchisement case of Giles v. Harris, for instance, turned in part on the Court’s conclusion that if disfranchisement of black voters violated a right, it was left without a remedy. In Cummings v. Richmond County Bd. of Educ., Harlan himself rejected a challenge to a whites-only school by ruling that the plaintiffs hadn’t asked for the right remedy, before going on to indicate that school segregation didn’t violate rights guaranteed by the 14th Amendment. The historical Carter would have been quite familiar with these and similar manipulations of the right-remedy distinction in order to deprive African Americans of their constitutional rights during Jim Crow.

It is impossible to know for sure, but I think it is unlikely that in Brown, Judge Carter understood himself to be asking for a remedy that was distinct from the substantive right. The Court, of course, did famously separate these two questions in ultimately deciding the case, but that doesn’t mean that a sophisticated civil rights lawyer, as Carter was, would have believed in that distinction.

Mary L. Dudziak said...

Thank you to Ken Mack for this very thoughtful and helpful response. Just a brief comment from me at this point.

First, for those who aren't already familiar, before the book is out there great work of Ken Mack's to read on civil rights lawyers, particularly his article, Rethinking Civil Rights Lawyering and Politics in the Era Before Brown, which can be found on-line in the Nov. 2005 Yale Law Journal, here: http://www.yalelawjournal.org/115/2/256_kenneth_w_mack.html

Second, Ken's response, and the use of history in the case, help us to think through what the relationship should be between history and contemporary legal practice and judging. I think the two of us are framing the question of what the Court did in the PICS case differently. Ken puts it this way: "it is quite difficult to take the historical actors cited by the Supreme Court forward in time and give a simple answer to the question: 'How would they have decided the Seattle and Louisville cases?'" About this, we agree.

But the way I read the use of history in the case, members of the Court asked a different question: what happened at time A (Brown), and how does what happened at time A affect what we do at time B (PICS case).

This is why there has been such a reaction to the quotations from Judge Carter. His words at the time of Brown were relied on for an interpretation of what he was doing in time A (time of Brown).

I agree with Ken that history can be manipulated by courts. This is why I'm going to write a paper that compares the judicial use of history to the field of "public history." That seems the right analogy. http://legalhistoryblog.blogspot.com/2007/07/new-paper-law-as-public-history-in.html

But even when acknowleging what is perhaps the necessary politicization of history when it appears in law, I'm not sure that we would want judges to abandon the practice of looking to the past in order to understand what principles of equality should mean, or what the implications are of a departure from precedent.

I hope there will be more discussion of these issues, in broader fora. It strikes me that there are at least two conversations to be had, beyond the important historiographic questions we discuss within the legal history community:

First, if judges are going to draw upon history, what should inform their use of history? How do they get it "right," when historians themselves wouldn't boil down historiographic questions to yes or no answers?

Second (and I was thinking of a separate post on this): since history has been important in many Supreme Court opinions, how do we equip our students? Most law students graduate without any practical exposure to how to critically evaluate claims about history in legal arguments. In comparison, students at many law schools are exposed to the methods of economic analysis in the first year curriculum, so that any second year law student should be able to appreciate and critique (on some level) the use of economic reasoning in an opinion. Is it time to make history and historical method an important part of the law school curriculum, rather than seeing legal history as a marginal "enrichment" course?

Kenneth Mack said...

That’s quite useful, and it does clarify some of the stakes and the assumptions behind the discussion between Professor Dudziak and myself. We do agree on a great deal, and let me clarify a couple of places where I think we may be in more agreement than what the exchange so far has indicated.

Like Dudziak, I do not want to ask judges to abandon the practice of looking to the past to define what equality means today. As I indicated (briefly due to space constraints) at the end of my op-ed piece, history does have a great deal to tell us about modern legal questions and problems. I am just skeptical about history providing a definitive answer, by itself, particularly to problems (like those in Louisville and Seattle) that could not have been imagined by the lawyers and justices who participated in Brown, much less Justice Harlan in Plessy.

What I objected to most was the Justices’ attempt have history give a definitive answer to the modern questions before it, as when Chief Justice Roberts quotes Robert Carter’s argument in Brown and argues that “there is no ambiguity in that statement.” Roberts seems to believe that we can simply line up Carter’s argument then and the questions before the Court now, and that such an exercise can provide a definitive answer to the question before the Court now.

Even more objectionable is Justice Thomas’ flattening of history to make Justice Harlan’s context in Plessy to be the same as the NAACP lawyers’ context in Brown and the same as the context of the Seattle and Louisville cases. What I tried to show briefly is that each of these historical contexts, on its own, is ambiguous about certain questions that would concern us as moderns, and that none of them is analogous to what the Supreme Court faced in Louisville. The neat Harlan – NAACP – Seattle/Louisville is story both shoddy history and shoddy legal analysis (for instance by ignoring portions of Harlan’s opinion that don’t fit within that neat progression).

Thus I think Professor Dudziak and I are in agreement that history remains useful in such cases. I suspect that we also agree much (although perhaps not all) on what a decent use of history might be in such a case, although perhaps we disagree over just how the Court used history in deciding the case.

Thank you for a productive exchange, and I look forward to its continuance.