What can Brown® do for you?: Neutral Principles and the Struggle over the Equal Protection Clause

Duke Law Journal

Volumn 58, Issue 6, 2009, Pages 1049-1069

  Karlan, Pamela S ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 68049100113     PISSN: 00127086     EISSN: None     Source Type: Journal    
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References (131)

1. Brown v. Bd. of Educ. (Brown I), 347 U.S. 483 (1954).
2. Senator Specter used this phrase to refer to Roe v. Wade, 410 U.S. 113 (1973), during the confirmation hearings for Chief Justice Roberts, in light of the Court's having had numerous opportunities to overrule it.
3. See Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 145 (2005) (Statement of Sen. Specter, Chairman, S. Comm. on the Judiciary), available at http://www.gpoaccess.gov/congress/senate/judiciary/sh109-158/browse.html
4. cf. Pamela S. Karlan, Two Concepts of Judicial Independence, 72 S. Cal. L. Rev. 535, 543 (1999) ("Today, Brown v. Board of Education, which was a controversial decision in 1954 (and perhaps an unthinkable one in 1896), is the third rail of judicial nomination: touch it and you die." (footnote omitted)).
5. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).
6. See Fred R. Shapiro, The MoSt-Cited Law Review Articles Revisited, 71 Chi.-Kent L. Rev. 751, 759-60 (1996) (noting that Professor Wechsler's article is the sEcond moSt often cited article after R.H. Coase, The Problem of Social CoSt, 3 J.L. & Econ. 1 (1960)). Brown is nowhere near the moSt often cited opinion in Supreme Court history. That Distinction goes to the otherwise forgettable United States v. Detroit Timber & Lumber Co., 200 U.S. 321 (1906), a citation to which appears at the top of the slip copy of the syllabus to every Supreme Court opinion to remInd readers that the syllabus "Constitutes no part of the opinion of the Court but has been prepared. .. for the convenience of the reader." Ruth Bader Ginsburg, Communicating and Commenting on the Court's Work, 83 Geo. L.J. 2119, 2120 (1995) (alteration in original).
7. Wechsler, supra note 3, at 31-34
8. See David A. Strauss, Little Rock and the Legacy of Brown, 52 St. Louis U. L.J. 1065, 1071-73 (2008) (describing how Wechsler's critique-although "infamous for being obtuse"- contains the seeds of an important challenge to how courts adjudicate Constitutional cases).
9. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
10. See Wechsler, supra note 3, at 16-20
11. For reasons that I discuss, attention to the relationship between Brown and Neutral Principles was Revived by the Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District No. 1, 127 S. Ct. 2738 (2007)
12. see also, e.g., Goodwin Liu, "history Will Be Heard": An Appraisal of the Seattle/Louisville Decision, 2 Harvard L. & Pol'y Rev. 53, 64-65 (2008) (likening Wechsler's treatment of Brown in Neutral Principles to the plurality opinion in Parents Involved)
13. Martha C. Nussbaum, The Supreme Court, 2006 Term-Foreword: Constitutions and Capabilities: "Perception" AgainSt Lofty Formalism, 121 Harv. L. Rev. 4, 91 (2007) ("The pRevailing opinion in Parents Involved is... clearly Wechslerian. Exactly like Wechsler, the pRevailing opinion purported to be balanced and fairmInded- that is what the allusion to the legacy of Brown clearly expresses. Nonetheless, like Wechsler, the Court ignored the asymmetry between exclusion and inclusion....").
14. See, e.g., District of Columbia v. Heller, 128 S. Ct. 2783, 2789-804 (2008) (discussing the original underStanding of the language contained in the SEcond Amendment)
15. Boumediene v. Bush, 128 S. Ct. 2229, 2244-51 (2008) (discussing the scope of the writ of habeas corpus as underStood in 1789). Justice Thomas, in particular, has often argued for a repudiation of exiSting interpretations because they do not accord with what he sees as a Constitutional provision's original meaning.
16. See, e.g., Morse v. Frederick, 127 S. Ct. 2618, 2630 (2007) (Thomas, J., concurring) (arguing that "the history of public education suggeSts that the First Amendment, as originally underStood, does not protect Student speech in public schools" despite a long line of cases recognizing that Students possess some level of Constitutional protection)
17. Gonzales v. Raich, 545 U.S. 1, 58, 58-66 (2005) (Thomas, J., dissenting) (arguing that congressional power under the Commerce Clause should be returned to an eighteenth-century underStanding of "commerce" as Standing "in contraSt to productive activities like manufacturing and agriculture").
18. See James E. Fleming, Fidelity to Our Imperfect Constitution, 65 Fordham L. Rev. 1335, 1347 (1997) ("Originalism is an ism, a conservative ideology that emerged in reaction againSt the Warren Court. Before Richard Nixon and Robert Bork launched their attacks on the Warren Court, originalism as we know it did not exiSt." (emphasis omitted)).
19. See Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291 passim (2007).
20. See Constitutional Accountability Ctr., What Is Constitutional Accountability?, http://www.theusConstitution.org/page.php?id=91 (last visited Jan. 27, 2008). In a forthcoming book, Professor Goodwin Liu, Professor ChriStopher Schroeder and I argue that while the original application of Constitutional provisions is one important source for contemporary interpretation, other sources-such as Constitutional Structure and development, changed public underStanding, and the interaction of Constitutional principles with current conditions-are also critiCal.
21. See Goodwin Liu, Pamela S. Karlan, & ChriStopher Schroeder, Keeping Faith with the Constitution (forthcoming 2009).
22. For an attempt to discuss the REConstruction-era underStanding of the government's role in providing or encouraging racially integrated education, see Brief of HiStorians as Amici Curiae in Support of Respondents at 6-15, Parents Involved, 127 S. Ct. 2738 (Nos. 05-908, 05-915), 2006 WL 2922647.
23. Attorney General Meese's 1985 address to the American Bar Association, which in some important ways signaled the emergence of the modern focus on originalism, Called for a "Jurisprudence of Original Intention." See Edwin Meese III, U.S. Att'y Gen., Address to the American Bar Association (July 9, 1985), available at http://www.Fedsoc.org/resources/id.49/default.asp. Jack Balkin refers to this approach as "original expected application" interpretation: it "asks how people living at the time the text was adopted would have expected it would be applied." Balkin, supra note 13, at 296.
24. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007).
25. Brown v. Bd. of Educ. (Brown I), 347 U.S. 483, 486-88 (1954).
26. For two detailed accounts of this process, see Michael J. Klarman, from Jim Crow to Civil Rights: the Supreme Court and the Struggle for Racial Equality 292- 312 (2004)
27. Richard Kluger, Simple Justice: The history of Brown V. Board of Education and Black America's Struggle for Equality 582-616 (1975).
28. Kluger, supra note 19, at 614.
29. Brown v. Bd. of Educ., 345 U.S. 972, 972 (1953).
30. Klarman, supra note 19, at 301
31. Kluger, supra note 19, at 614-16
32. Justice Frankfurter's law clerk, Alexander Bickel, had reported to him after a summer of reading the legislative history of the Fourteenth Amendment that "it is impossible to conclude that the 39th Congress intended that segregation be abolished
33. Impossible also to conclude that they foresaw it might be, under the language they were adopting." Klarman, supra note 19, at 304.
34. See generally Alexander M. Bickel, The Original UnderStanding and the Segregation Decision, 69 Harv. L. Rev. 1 (1955) (setting out Professor Bickel's underStanding of the legislative history). The Court apparently agreed with this underStanding.
35. Brown v. Bd. of Educ. (Brown I), 347 U.S. 483, 492-93 (1954).
36. See id. at 490 n.5.
37. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
38. Strauder v. West Virginia, 100 U.S. 303 (1880).
39. Professor Klarman's discussion of the Court's internal discussion confirms this point. See Klarman, supra note 19, at 302 (noting that Chief Justice Warren opened the discussion by Stating that the Court could uphold segregation "only" on the premise, rejected by the Fourteenth Amendment, "that the Negro race is inferior").
40. Brown v. Bd. of Educ. (Brown I), 347 U.S. 483, 494 (1954).
41. The canoniCal citation for the proposition that racial classifications are Constitutionally suspect is Korematsu v. United States, 323 U.S. 214, 216 (1944). Although the Court cited Korematsu in Bolling v. Sharpe, 347 U.S. 497, 499 (1954) ("Classifications based solely upon race muSt be scrutinized with particular care, since they are contrary to our traditions and hence Constitutionally suspect."), in which it Struck down racial segregation of public schools in the District of Columbia as a violation of the due process clause of the Fifth Amendment, it did not cite Korematsu or discuss what has come to be known as the anticlassification principle in Brown itself.
42. Wechsler, supra note 3, at 12
43. Cf. Munn v. Algee, 924 F.2d 568 (5th Cir. 1991) (Reviewing a wrongful death case involving a Jehovah's Witness in which the defendant essentially argued that the victim's religion should preclude her executor from recovering).
44. U.S. Sentencing Comm'n, Guidelines Manual § 3A1.1 (2007) ("Hate Crime Motivation or Vulnerable Victim"). Indeed, many hate-crime Statutes turn on the identity of the victim.
45. See, e.g., Gall v. United States, 128 S. Ct. 586, 593 (2007) (discussing the District court's decision in setting the defendant's sentence to take into account, among other things, "his age at the time of the offense conduct" (quoting Joint Appendix at 117, Gall, 128 S. Ct. 586 (No. 06- 7949), 2007 WL 3071558)).
46. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2006).
47. Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (2006).
48. Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.).
49. See 5 U.S.C. § 2301(b)(2) (providing that Federal employees should be evaluated "without regard to politiCal affiliation, race, color, religion, national origin, sex, marital Status, age, or handicapping condition")
50. 29 U.S.C. § 623 (prohibiting discrimination againSt workers on the basis of age)
51. 42 U.S.C. § 2000e-2 (prohibiting discrimination on the basis of race, color, sex, or national origin).
52. Similarly, the Fifteenth Amendment, which prohibits denial of the right to vote "on account of race," turns entirely on whether the challenged disenfranChisement was because of the plaintiff's race. If the plaintiff was excluded for some other reason, the amendment is not implicated.
53. See Louis H. Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler, 108 U. Pa. L. Rev. 1, 23 (1959) (responding to Wechsler's criticism of the White Primary Cases, in which Wechsler asks whether their rationale would pRevent a religiously based party from excluding nonbelievers by pointing out that "the fifteenth amendment speaks only to racial Distinctions").
54. Wechsler, supra note 3, at 33
55. Wechsler argues that the position that "racial segregation is, in principle, a denial of equality to the minority againSt whom it is directed.... presents problems" because, among other things, "is there not a point in Plessy" that that is juSt the Construction that minorities choose to put on it? Id.
56. John Hartely, Democracy and DistruSt: A Theory of Judicial Review 55 (1980)
57. see also Strauss, supra note 6, at 1070-71 (arguing that Wechsler was incorrect in claiming that Brown could not be juStified with neutral principles)
58. Pollak, supra note 45, at 31
59. See, e.g., Hernandez v. Texas, 347 U.S. 475, 478 (1954) (Stating that "[t]he Fourteenth Amendment is not directed solely againSt discrimination due to a 'two-class theory'-that is, based upon differences between 'white' and Negro," but also reaches discrimination againSt Mexican Americans)
60. Oyama v. California, 332 U.S. 633, 640-44 (1948) (holding that California's Alien Land Law denied equal protection to citizens of Japanese descent by making it harder for them to own land than it was for Individuals whose parents were "American, Russian, Chinese, or English").
61. Wechsler, supra note 3, at 34. For Stinging recent exegesis of this passage, see Liu, supra note 10, at 64-65
62. Nussbaum, supra note 10, at 28-30
63. Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421, 422 n.8 (1960) (Stating that "[t]he curves of Callousness and Stupidity intersect at their respective maxima" in the Statement that if segregation communicates a belief in black inferiority this is "solely because the colored race chooses to put that Construction upon it" (emphasis omitted) (quoting Plessy v. Ferguson, 163 U.S. 537, 551 (1896))).
64. Wechsler, supra note 3, at 34
65. Buck v. Bell, 274 U.S. 200, 208 (1927).
66. See Pamela S. Karlan, Equal Protection: Bush v. Gore and the Making of a Precedent, in the Unfinished Election of 2000, at 159, 194-95 (Jack N. Rakove ed., 2001).
67. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971).
68. Robert H. Bork, The Tempting of America: The PolitiCal Seduction of the law 77 (1990)
69. see also Brad Snyder, How the Conservatives Canonized Brown v. Board of Education, 52 Rutgers L. Rev. 383 passim (2000) (describing Brown's apotheosis).
70. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2824 (2007) (Breyer, J., dissenting) (describing the policies as reflecting the view of "democratiCally elected school boards... as to how best to include people of all races in one America").
71. As far as I can tell, the Court's moSt recent decisions had been in Missouri v. Jenkins, 515 U.S. 70 (1995), and Freeman v. Pitts, 503 U.S. 467 (1992). Both of those cases had turned primarily on the queStion of the Federal courts' power to remedy continued racial isolation in the schools. Jenkins, 515 U.S. at 101 (directing that "the District Court should apply our threepart teSt from Freeman v. Pitts" when "deciding whether a pReviously segregated District has aChieved partially unitary Status")
72. Freeman, 503 U.S. at 491 (holding that "[a] court's discretion to order the incremental withdrawal of its supervision in a school desegregation case muSt be exercised in a manner consiStent with the purposes and objectives of its equitable power" and articulating three "factors which muSt inform the sound discretion of the court").
73. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & Pub. Aff. 107 (1976).
74. E.g., Jack M. Balkin, Plessy, Brown, and Grutter: A Play in Three Acts, 26 Cardozo L. Rev. 1689, 1711 (2005).
75. Parents Involved, 127 S. Ct. at 2757 (Roberts, C.J., announcing the judgment of the Court) (alteration in original) (quoting Miller v. Johnson, 515 U.S. 900, 911 (1995)).
76. Korematsu v. United States, 323 U.S. 214 (1944).
77. See Pamela S. Karlan, Easing the Spring: Strict Scrutiny and Affirmative Action After the ReDistricting Cases, 43 Wm. & Mary L. Rev. 1569, 1569-70 (2002).
78. City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989).
79. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
80. See id. at 235
81. Croson, 488 U.S. at 493-94.
82. See Pamela S. Karlan, The Law of Small Numbers: Gonzales v. Carhart, Parents Involved in Community Schools, and Some Themes from the First Full Term of the Roberts Court, 86 N.C. L. Rev. 1369, 1385-91 (2008).
83. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2767 (2007) (Roberts, C.J., announcing the judgment of the Court). Somewhat earlier, the Court quotes from the sEcond opinion in the Brown litigation, the remedial decision handed down a year later.
84. See id. at 2765 (quoting Brown v. Bd. of Educ. (Brown II), 349 U.S. 294, 300 (1955)). For a discussion of that reference, see infra text accompanying notes 83-84.
85. Parents Involved, 127 S. Ct. at 2767 (alteration in original) (quoting Brown v. Bd. of Educ. (Brown I), 347 U.S. 483, 494 (1954)).
86. Brown I, 347 U.S. at 494 (emphasis added) (quoting a lower court opinion).
87. Brown v. Bd. of Educ. (Brown II), 349 U.S. 294 (1955).
88. Parents Involved, 127 S. Ct. at 2765 (Roberts, C.J., announcing the judgment of the Court) (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995)).
89. See Brown II, 349 U.S. at 300.
90. Parents Involved, 127 S. Ct. at 2767 (Roberts, C.J., announcing the judgment of the Court).
91. See id. at 2782-86 (Thomas, J., concurring).
92. Towne v. Eisner, 245 U.S. 418, 425 (1918).
93. Justice Thomas asserted the opposite: MoSt of the dissent's criticisms of today's result can be traced to its rejection of the color-blInd Constitution. The dissent attempts to marginalize the notion of a colorblInd Constitution by consigning it to me and Members of today's plurality. But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan's view in Plessy: "Our Constitution is color-blInd, and neither knows nor tolerates classes among citizens." And my view was the rallying cry for the lawyers who litigated Brown. Parents Involved, 127 S. Ct. at 2782 (Thomas, J., concurring) (citations omitted) (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting)). Justice Thomas cited several of the briefs filed in Brown as well as Judge Constance Baker Motley's Statement at the Court's memorial proceedings for Justice Thurgood Marshall that the "Bible" to which Marshall had turned as a lawyer was Justice Harlan's dissent. Id. But as Professor Goodwin Liu shows, Harlan's view is far more nuanced than the anticlassification view propounded by Justice Thomas. See Liu, supra note 10, at 55-60 (proposing that Justice "Harlan's declaration that '[o]ur Constitution is color-blInd' does not clearly State a categoriCal principle againSt classification by race" but rather means that "the Constitution does not permit government to validate or perpetuate a race-based syStem of social hierarchy"). And as Professor Liu also emphasizes, although Justice Harlan's ringing phrase Still has resonance, his dissent in Plessy is hardly a model for contemporary equal protection law. See id. at 54-56 (noting that Harlan "besmirched" his dissent by "attempting to underscore the inJustice of segregation to blacks with the observation that 'a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana' cannot" (quoting Plessy, 163 U.S. at 561 (Harlan, J., dissenting))). And whatever the lawyers who litigated Brown may have thought about that one phrase from Harlan's dissent, surely they would not have embraced the First three sentences of the paragraph in which it appears: The white race deems itself to be the dominant race in this country. And so it is, in preStige, in aChievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds faSt to the principles of Constitutional liberty. Plessy, 163 U.S. at 559 (Harlan, J., dissenting).
94. Adam Liptak, News Analysis: The Same Words, but Differing Views, N.Y. TIMES, June 29, 2007, at A24. The other surviving lawyer who had argued for the schoolChildren in the consolidated cases "Called the Chief Justice's interpretation 'prepoSterous.'" Id. As I suggeSt elsewhere, Judge Carter's reaction is reminiscent of the classic scene in Woody Allen's Annie Hall in which Allen's character is Standing in line outside a movie theater and overhears the man behInd him spouting off about Marshall McLuhan's views of television. [Allen] declares: "You don't know anything about Marshall McLuhan's work," to which the man replies, "Really? Really? I happen to teach a class at Columbia Called TV, Media and Culture, so I think that my insights into Mr. McLuhan, well, have a great deal of validity." At that moment Woody says, "Oh, that's funny, because I happen to have Mr. McLuhan right here," and McLuhan says, "I heard, I heard what you were saying. You, you know nothing of my work. How you ever got to teach a course in anything is totally amazing." Karlan, supra note 75, at 1395-96.
95. Parents Involved, 127 S. Ct. at 2768 (Roberts, C.J., announcing the judgment of the Court).
96. See Wechsler, supra note 3, at 34 (observing, based on the difficulty Wechsler and HouSton, an African American, encountered when trying to have lunch in a segregated District of Columbia, that "the Southern white also pays heavily for segregation")
97. Parents Involved, 127 S. Ct. at 2798 (Stevens, J., dissenting) (alteration in original).
98. see also id. ("[N]o one can fail to be impressed with the one pervading purpose found in [all the REConstruction amendments]... we mean the freedom of the slave race." (quoting The Slaughter-House Cases, 83 U.S. at 71))
99. Strauder v. West Virginia, 100 U.S. 303, 306 (1880) ("[The Fourteenth Amendment] is one of a series of Constitutional provisions having a common purpose
100. namely, securing to a race recently emancipated... all the Civil rights that the superior race enjoy.").
101. Parents Involved, 127 S. Ct. at 2836 (Breyer, J., dissenting). Thus, it was "a cruel Distortion of history" to "equate the plight of LInda Brown (who was ordered to attend a Jim Crow school) to the circumStances of Joshua McDonald (whose requeSt to transfer to a school closer to home was initially declined)." Id.
102. Winston S. ChurChill, Their FineSt Hour, Speech Before the House of Commons (June 18, 1940), in Blood, Sweat and Tears 305, 314 (1941). I expect that the Battle of Britain is about to begin. Upon this battle depends the survival of ChriStian Civilization. Upon it depends our own British life, and the long continuity of our inStitutions and our Empire. The whole fury and might of the enemy muSt very soon be turned on us. Hitler knows that he will have to break us in this Island or lose the war. If we can Stand up to him, all Europe may be free and the life of the world may move forward into broad, sunlit uplands. But if we fail, then the whole world, including the United States, including all that we have known and cared for, will sink into the abyss of a new Dark Age made more siniSter, and perhaps more protracted, by the lights of perverted science. Let us therefore brace ourselves to our duties, and so bear ourselves that, if the British Empire and its Commonwealth last for a thousand years, men will Still say, "This was their fineSt hour." Id.
103. The sentence does not appear in Justice Breyer's written dissent, but can be heard in the dissent he read from the bench. Oral Opinion of Justice Breyer at 19:03, 32:54-33:03, Parents Involved, 127 S. Ct. 2738 (No. 05-908), available at http://www.oyez.org/cases/2000-2009/2006/2006_05_908/opinion
104. cf. Winston S. ChurChill, The War Situation I, Speech Before the House of Commons (Aug. 20, 1940), in Blood, Sweat and Tears, supra note 99, at 341, 347-48. The gratitude of every home in our Island, in our Empire, and Indeed throughout the world, except in the abodes of the guilty, goes out to the British airmen who, undaunted by odds, unwearied in their Constant challenge and mortal danger, are turning the tide of the World War by their prowess and by their devotion. Never in the field of human conflict was so much owed by so many to so few. Id. For an extensive discussion of the function of oral dissents, with particular emphasis on Justice Breyer's dissent in Parents Involved
105. see Lani Guinier, The Supreme Court, 2008 Term-Foreword: Demosprudence Through Dissent, 122 Harv. L. Rev. 6, 7-13 (2008).
106. William Shakespeare, The Merchant of Venice, act I, sc. 3.
107. Parents Involved, 127 S. Ct. at 2767 (Roberts, C.J., announcing the judgment of the Court).