Conservatives on the Brown Decision

19 05 2009

This is just ridiculous. In an ongoing series decrying U.S. Supreme Court decisions they do not like, Bench Memos, a conservative law blog run by the National Review, cited the Brown v. Board of Ed decision, which found that racial segreation violated “equal protection of the laws guaranteed by the Fourteenth Amendment,” as an instance of liberal judical activism.

And they did so on the 55th Anniversary of the court’s decision. 

1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”

For some reason I don’t people were scrambling to use “originalist justifications” to end segregation in the 50s. 

Interestingly enough, while Brown is rightly credited with dealing a huge blow to Jim Crow segregation few appreciate how it change the Senate’s posture toward the judiciary and Supreme Court nominees in particular. In a recent op-ed in the New York Times, Yale law professor Stephen Carter sums up the after effects this way: 

Before that 1954 case, it was virtually unheard of for a nominee to appear in person before the Senate. Only two had been called, each because of special circumstances surrounding the nomination. But there was always a sense that demanding testimony was somehow unseemly. The bar frowned on the practice, and the senators avoided it. Abraham Lincoln, questioned about his nomination of Salmon P. Chase as chief justice, responded, “We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it.”

Brown changed everything. Infuriated by the Supreme Court’s temerity in striking down public school segregation, the Southern Democrats who in those days still largely ran the Senate began to require that all potential justices give testimony before the Judiciary Committee. When the nominees appeared, the Dixiecrat Senators grilled them on Brown. The first was John Marshall Harlan in 1955, who declined invitations to discuss either specific cases or judicial philosophy as “a matter of propriety.” One by one, later nominees followed his example.

Some of them suffered for it. Justice William Brennan was roughed up at his hearing by Senator Joseph McCarthy, not even a member of the committee, who was permitted to make a special appearance to torment Brennan about his views on Communism. In the 1960s, Thurgood Marshall was grilled on minutiae about the history of the Constitution, part of an effort by opponents to demonstrate that the man who had by that time won 29 out of 32 cases before the Supreme Court was intellectually not up to the job.

 

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