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Tuesday, November 15, 2011

Chief Justice Roberts, Formalism, and Parents Involved

One of the points of my previous pragmatism posts is to contrast its various meanings with formalism. In Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), Chief Justice Roberts authored an opinion finding unconstitutional the voluntary efforts at racial integration undertaken in Seattle and Louisville. He emphasized the principle of color-blindness as the key to the ruling. He even quoted from the Supreme Court oral argument in the Brown case by Robert Carter, now a federal judge with senior status. He said that Carter's argument demonstrated that Brown was about the importance of color-blindness. He quoted Carter's assertion back then that, "no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Id. at 747.

Yet within a few days, Judge Carter explained that Roberts was badly mistaken. Adam Liptak, The Same Words, but Differing Views, N.Y. Times, June 29, 2007, at A24 (“All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use is now.”) I have always thought Carter's response highlighted the risk of the formalistic invocation of a supposed constitutional principle by a Justice. By contrast, a more contextual pragmatic approach would have easily seen the clear differences in the cases and circumstances. Joel Goldstein and others have written law review articles about the Roberts view of history in the case. But then I wonder how could someone with more formalist views of constitutional jurisprudence defend Roberts' statement? I suppose they could argue that the recent Carter views should not be considered dispositive proof of what he meant earlier. Or they could argue that this error does not show a pragmatic approach is superior on such issues. Neither of these persuade me. But if someone has other responsive arguments, I am all ears.

Posted by Mark kende on November 15, 2011 at 08:08 PM in Constitutional thoughts | Permalink


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Indeed, Joe. What is truth?

Posted by: Jay | Nov 17, 2011 10:50:24 PM

Are you saying that theoretically Brown could be overruled -- and "separate but equal" allowed -- if a certain "pragmatic" circumstance presented itself? That's what it sounds like.

Posted by: Joel | Nov 16, 2011 1:26:16 PM

In reference to the first two comments, it appears what the "objective meaning" of the words are is pretty debatable, as seen by the 5-4 ruling. It also helps show the value of looking at history at a whole, not what someone said at a single point in time (ironic given Brown itself said original history didn't decide the question), is the way to go.

Posted by: Joe | Nov 16, 2011 9:50:11 AM

Just as we enforce the law that legislators actually wrote rather than what they now tell us they wish they'd said, surely it is sometimes reasonable to look at what people actually argued historically, rather than to let them tell us now that whatever they said, they wish they'd said something else.

Posted by: clerk | Nov 15, 2011 11:52:03 PM

I don't think Roberts' point was about the subjective intent behind Carter's words, but rather an endorsement of their objective meaning.

Posted by: Jay | Nov 15, 2011 8:58:45 PM

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