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.