T HE litigation campaign against segregation that culminated in 1 Brown v. Board of Education' remains an important subject of study. Brown continues to be controversial because Americans remain uncertain about what its substantive commitments were, and, perhaps more important, how those commitments, as we now understand them, fit together with the other values and institutions that provide the structure of contemporary politics. This Essay will follow up on three aspects of the litigation campaign preceding Brown in an effort to show how Brown and its legacy illuminate enduring features of the organization of the U.S. political system. Part I of this Essay will begin with a discussion of the very idea of a litigation strategy. Brown came to exemplify the possibility that lawyers could structure and execute a litigation strategy designed to produce substantial changes in the law. Liberals, and then conservatives, were captivated by the idea of coordinated litigation campaigns, even though the NAACP's legal campaign against segregation, when examined in detail, does little to support the proposition that strategic litigation campaigns matter.2 Part I will continue with an examination of the ways in which later litigation campaigns were modeled on, in modified form, the one that ended (provisionally) with Brown. A litigation campaign can matter only if its outcome-the decisions it generates, the forces in civil society it mobilizes-matters. The second question this Essay will take up is whether Brown matters. Professor Gerald Rosenberg's critique of Supreme Court adjudication as a vehicle for social reform uses the aftermath of

The most important and illuminating early writing on Brown v. Bd. of Education is a nine-page essay by Charles Black. Black memorably shows that segregation was a crucial part of a racial caste system. At the same time, he cuts through legal abstractions that made it difficult to answer the question whether the Court’s decision was sufficiently “neutral.” At the same time, Black’s argument suffers from two serious problems: formalism and institution-blindness. Black writes as if his interpretation of the equal protection clause can be simply read off the clause, and he does not engage the complex institutional problems that were raised by the Court’s decision. Nonetheless, the legal culture needs more voices like Black’s. Of all the early writing on Brown v. Bd. of Education, the most striking is a ninepage essay by Charles Black. Black’s essay is striking because of its simplicity, its concreteness, and its realism—its clear statement of what the system of segregation did and meant, and of the relationship between that statement and Black’s reading of the Constitution. For three reasons, Black’s essay is worth careful consideration today. First, it gives a vivid sense of the social realities that Brown actually confronted—a sense that was entirely missing from the legal culture at the time, and one that often seems to have been lost in contemporary discussions of the Brown problem. Second, Black’s essay offers a distinctive understanding of what the equal protection clause should be taken, above all, to forbid: the maintenance of a caste system. That understanding of the clause seems to me correct, and it bears on a number of issues today. Third, Black provides a sophisticated and morally committed version of a certain approach to constitutional * Karl N. Llewellyn Distinguished Service Professor, University of Chicago Law School. 1 347 US 483 (1954). argument, one that retains considerable influence. I think that for all its virtues, his approach suffers from the serious vices of formalism and institutional blindness. In particular, Black’s approach suffers from its failure to see the issues that have arisen as a result of the institutional turn of post-1980s constitutional law. We can learn a great deal about Brown by reading Black sympathetically. We can learn something about constitutional interpretation by reading him skeptically. Let us begin by listening to him. I. The Sovereign Prerogative of Philosophers Black begins with a two-part argument that he describes as “awkwardly simple.” First, the equal protection clause is best read to forbid state law from significantly disadvantaging the Negro race as such. Second, segregation counts as a massive intentional disadvantaging of the Negro race as such. “No subtlety at all. Yet I cannot disabuse myself of the idea that that is really all there is to the segregation cases. If both these propositions can be supported by a preponderance of argument, the cases were rightly decided.” Black attempts to support the first proposition by reference to precedent. In several cases, the Court had seemed to endorse it. To be sure, Plessy v. Ferguson appeared to be “a faltering from this principle.” But even in Plessy, the Court did not repudiate the principle. On the contrary, the Court found it necessary to show that any disadvantaging from segregation was produced not by state law, but by the “choice” of those who construed it as a form of disadvantaging. Hence the fault of Plessy lay not in 2 See Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale LJ 421 (1960). 3 See Cass R. Sunstein and Adrian Vermeule, Interpretation and Institutions, 101 Mich L Rev 885 (2002). The institutional turn has many strands and can be found in many places. See, e.g., Gerald Rosenberg, The Hollow Hope (1993) (emphasizing limitations of courts in producing social change); Mark Tushnet, Taking the Constitution Away from the Courts (1999) (raising doubts about judicial review); David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996) (emphasizing common law approach toward Constitution). For my own views, see Cass R. Sunstein, One Case At A Time (1999). 4 Id. at 421. 5 Id. 6 163 US 537 (1896).

Amy Stuart Wells, Anita Tijerina Revilla, Jennifer Jellison Holme, Awo Korantemaa Atanda, The Space between School Desegregation Court Orders and Outcomes: The Struggle to Challenge White Privilege, Virginia Law Review, Vol. 90, No. 6, 50 Years of Brown v. Board of Education (Oct., 2004), pp. 1721-1751

SUPREME Court opinions like Brown v. Board of Education' reveal their consequences and yield their secrets only with the passage of time. The Supreme Court candidly recognized this reality seventeen years after it delivered Brown: Nothing in our national experience prior to 1955 prepared anyone for dealing with changes and adjustments of the magnitude and complexity encountered since then.2 Fifty years have now elapsed since May 17, 1954, and the passage of time allows us to put perspective into a reexamination of the opinion that launched American society into the desegregation era and became the catalyst for astonishing changes in race relations not only in public education, but throughout American society. In 1954, the Supreme Court came to a fork in the road in its school segregation jurisprudence when Brown became the first case to force the Court to articulate the harm generated by segregation per se.3 Chief Justice Warren defined the primary harm of segregation to be the negative psychological impact on African-

Scholars who grapple with the Rehnquist Court's activism understandably have relied on the work of those who grappled with the Warren Court's activism several decades ago. In particular, they have built upon the work of Alexander Bickel, responding to the countermajoritarian difficulty by emphasizing just how much courts should leave unresolved. But this contemporary emphasis on judicial minimalism overlooks half of an important tradition. From the time of the Founding right up until Bickel, judicial power was defended based not only on its narrowness, but also on the expectation that judges would base their decisions on law. The other half of this tradition, captured by Herbert Wechsler in his famous Neutral Principles article, has been largely overlooked. The goal of this Article is to correct the current imbalance between the neutral-principles and minimalist traditions. The Article employs institutional and historical analysis both to cast doubt on the wisdom of the recent shift toward minimalism and to support a jurisprudence of principled minimalism in its place.