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Thursday, November 08, 2012

Recognizing Your Biases

In Brown v. Board of Education, the Supreme Court held that segregation in public schools violated the Equal Protection Clause.  Brown was a major blow to the separate but equal regime ratified by the Supreme Court’s decision in Plessy v. Ferguson.  Brown is (rightfully) one of the most important constitutional cases ever decided, but it is still contested to this day whether Brown is consistent with the original understanding of the Fourteenth Amendment.  Nonetheless, any legitimate theory of constitutional interpretation has to justify Brown, or it will not be taken seriously. 

This is true for many of the decisions that we often view as "progressive" or that significantly changed the way in which society operates.  In the years after Brown, various minorities groups turned to
the Court to effectuate broad changes in society.  Civil rights, women’s rights, fairness in the
criminal justice system – the Warren Court, in particular, remade the landscape of America in a series of decisions in the 1950s and 1960s.  As an African-American and a woman, I am especially proud of what they accomplished, but for constitutional law theorists, it is often difficult to justify many of these decisions as consistent with the "original" understanding of the Constitution or the Court's decision to intervene as consistent with the constitutional text and structure.  Some scholars have been successful (in my view), but we still argue over these issues in the legal scholarship. 

Despite my pride in certain Warren Court decisions, I have to be honest and admit that when I teach cases like Plessy v. Ferguson or the Civil Rights Cases or Parents Involved or Washington v. Davis, I question whether it is wise to give courts the ability to "remake" the landscape of America.  Talk about outcome oriented expedient, right?   Not surprisingly, like most people (though they won’t admit it), I only like the Court to intervene when it furthers something I believe in.  But I find this view to be problematic for a legal scholar, and as a result,  I go to great lengths when I am writing to try to neutralize this bias. 

Indeed, my scholarship is my attempt to overcome this weakness and be as intellectual honest as I can.   Sometimes, the result is that I make "liberal" and "conservative" arguments, but at the end of the day, it is my honest assessment of what I think the constitutional text and structure require rather than advocating for judicial intervention to achieve my desired outcome.  Plessy and cases like it make me realize that the Court does not always get it right, and sometimes, because of the limitations of its power, cannot get it “right” (see Giles v. Harris as a particularly egregious example).   The problem for me and my particular bias is that, if one is intellectually honest, you have to take the good with the bad.  Take the Plessy with the Brown, so to speak.  This does not mean that I have to believe Plessy was decided correctly; rather, in advocating for judicial intervention, one has to recognize that sometimes you might get a Plessy.  Other times, you might get a Brown but you have to believe that judicial intervention is justified in both instances (Lochner and Roe is another tough one).    

But the risk of a Plessy makes me wonder why we, as a society, are comfortable with the idea of the Supreme Court as being the change agent and in the process, promoting judicial intervention in lieu of the political process.  I am always taken back by how pro-Court my students are.  After teaching constitutional law for almost four years, it is not immediately obvious to me that this is right - that the Court, rather than the political process, should be the one to effectuate change.  And that is why, in my scholarship, I focus on the constitutional text and the structure so I won’t have to decide if this is right (because I fear that my answer might be “yes, it is right if I like the outcome”).  I recognize that the text and structure will only get us so far in deciding tough questions, but I leave it to others braver than I to formulate theories of constitutional interpretation to fill in the gaps.         

Posted by Franita Tolson on November 8, 2012 at 12:52 PM | Permalink


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Justice Souter in his Harvard speech had a realistic take of Plessy being a not overly egregious ruling in respect to the times. By now, we accept the courts to have a role in public policy matters up to a point, and it is a fact of life. It is best more of a "nudge" with certain moments when it is more. I respect your attempt at neutrality. As to Lochner, note even Justice Harlan -- who wrote or joined some "Lochner-like" opinions such as to yellow dog contracts -- dissented. There is a reason why it is seen as a symbolic bridge too far.

Posted by: Joe | Nov 8, 2012 3:35:17 PM

"[I]f one is intellectually honest, you have to take the good with the bad." This sums up my approach to my own scholarship ... and the conflicting feelings that I experience when my intellectual honesty butts up against my lived experience. Thank you for your thoughtful post, Franita.

Posted by: Nadia N. Sawicki | Nov 8, 2012 7:16:27 PM

Bias is various forms is with all of us. Bias is not evil most of the time. Hans Georg Gadamer's "Truth and Method" impressed me very much, especially with discussion of the Hermeneutical Circle that some, perhaps many, of us use in the process of decision making. The Hermeneutical approach to interpretation/construction of ancient texts can be applied to our not so ancient Constitution.

I recently read and was impressed with Stephen M. Griffin's "Book Review Colloquy: How Do We Redeem the Time?" reviewing Jack Balkin's two recent (2011) books "Constitutional Redemption: Political Faith In An Unjust World" and "Living Originalism." It is available at SSRN:


The Holy Grail of Constitutional Interpretation/Construction remains to be discovered, assuming it exists. In the meantime, I take comfort in the "Horseshoes Theory": close enough counts, as least for the time being. But the word "Justice" serves as conscience.

Posted by: Shag from Brookline | Nov 9, 2012 7:35:02 AM

Talking about bias, I just skimmed "The Oath," the recent book on the Supreme Court and the chapter on Sotomayor's nomination comes to mind. In effect, it suggests Sotomayor's infamous "wise Latina" speech addressed the reality that everyone has some sort of "bias" though it not a comfortable thing to accept (the critics had their own biases all the same). Humans have biases, they are 'partial,' though they are cabined in various ways, including when interpreting law. It also helps to have multimember courts (or academies) where things hopefully balance out some.

Posted by: Joe | Nov 9, 2012 9:55:28 AM

I agree with you Franita. The problem is that the legislature has passed laws that are biased and invidiously discriminatory on their face.

Would you support a Constitutional Amendment that strictly prohibited the mention of sex, age, race, national origin, marital status, breeding status, etc., in any law of the land?

As it is, our laws are rife with sex preferences that generally favor women. With age preferences that deny the vote or choice of sex partner to minors. With marital- and family-status preferences that severely punish folks for being non-married or non-breeders. With funding rules for national parks and forests that Amerikans of color don't visit and for public schools that can't begin to educate them.

If the country were run by Walmart, apart from equal access to great products, low prices and full employment, we'd have a place where gays and straights, marrieds and singles, Blacks and Whites, breeders and non-breeders, young and old, citizens and non-citizens, atheists and Romanists, would be treated equally once inside the door.

Posted by: Jimbino | Nov 9, 2012 1:10:06 PM

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