African-American Rights After Brown

Abstract

African-American Rights After Brown GERALD N. ROSENBERG The preceding chapters in this volume have focused on the U.S. Supreme Court and AfricanAmerican rights in the years prior to the mid-twentieth century. That history shows the Court at its worst and at its best—as perpetuating racism and striving to overcome it. In this chapter, I will step back and ask ifthe Court’s attempts to overcome racism made much differenceto the lives of African-Americans. In particular, I will focus on the Court’s 1954 decision, Brown v. Board of Education,' which unanimously struck down race-based segregation in elementary and second­ ary schools as violating the Equal Protection Clause ofthe Fourteenth Amendment ofthe U.S. Constitution. Brown is an apt case for focus on the Court’s contribution to change because it has received praise across the legal spectrum and is celebrated by scholars and social critics as a landmark. As the legal historian Michael Klarman puts it, “constitutional lawyers and historians generally deem Brown v. Board ofEducation to be the most important U.S. Supreme Court decision ofthe twentieth century, and possibly ofall time.”2 The question I address in this article is whether the decision in Brown made the con­ tribution to American society that this com­ ment suggests. In asking this question, I mean to disparage no one. Civil rights lawyers like Thurgood Marshall, Jack Greenberg and count­ less others dedicated their careers, and some­ times their lives, to a principledbeliefinjustice for all. My question does not challenge their commitment nor their principles. It does ask whether litigationwas the right strategic choice to furthertheirgoals, whethertheirunderstand­ ing of the strengths and weaknesses of courts as agents of social change was subtle enough to guide them to the best strategy for change. Underlying this question about Brown is a broader question about the role of the Su­ preme Court in the larger society. Since the mid­ 202 JOURNAL OF SUPREME COURT HISTORY twentieth century, there has been a beliefthat courts can act to further the interests of the relatively disadvantaged. Starting with civil rights and spreading to issues raised by women’s groups, environmental groups, politi­ cal reformers, and others, American courts seemingly have become important producers of political and social change. Cases such as Brown and Roe v. Wade3 are heralded as hav­ ing produced major change. Further, such liti­ gation has often occurred, and appears to have been most successful, when the other branches of government have failed to act. Indeed, for many, part ofwhat makesAmericandemocracy exceptional is that it includes the world’s most powerful court system, protecting minorities and defending liberty in the face ofopposition from the democratically elected branches. Americans look to activist courts, then, as ful­ filling an importantrole in the American scheme. Courts, many also believe, canbring height­ ened legitimacy to an issue. Courts deal with rights. Judges, at their best, are not politically beholden nor partisan. Rather, they are inde­ pendent and principled, deciding not what policy they want but rather what the Constitu­ tion requires. This gives judicial decisions a moral legitimacy that is missing from the ac­ tions of the other branches. Court decisions can remind Americans of our highest aspira­ tions and chideus forourfailings. Courts, Bickel suggests, have the “capacity to appeal to men’s better natures, to call forth their aspirations, which mayhave been forgotten in the moment’s hue and cry.”4 For Rostow, the “Supreme Court is, among other things, an educational body, and the Justices are inevitably teachers in a vital national seminar.”5 Bickel agrees, viewing courts as “a great and highly effective educa­ tional institution.”6 Courts, one commentator put it, can provide “a cheap method ofpricking powerful consciences.”7 In the confines ofa single chapter, I can do little more than sketch out an answer to the question ofwhether Brown made a major con­ tribution to civil rights. Readers who wish to see a more fully developed argumentmightcon­ sult The Hollow Hope and otherwork ofmine.8 Reasons for Caution Before uncritically accepting this view of the Court as correct, there are at least three reasons to be skeptical. First, it is almost en­ tirely lawyers who make...