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Monday, December 21, 2015

From Plessy to Brown and Back Again

PlessyI’m spending Christmas in New Orleans with my family this week, and today we took a rainy walk through St. Louis Cemetery No. 1. With the arguments in Fisher II fresh in my head, I paused for a while at Homer Plessy’s grave to read the plaque. I listened to a tour guide describe Plessy’s infamous train ride to Covington and the “separate but equal doctrine,” but she finished with what—for me at least—was a bit of a surprising take. “If it wasn’t for Homer Plessy, we wouldn’t have gotten Brown v. Board of Education and the end of segregation—even if he never lived to see it.” The guide’s narrative was of a long path (almost 60 years) to vindication; but what it made me think about was the 60 years since Brown, and the long journey the Court has taken back to Plessy­.

To me, the crucial passage in Justice Henry Brown’s opinion is when he explains that law—at least American law—is simply inadequate to the task of racial justice:

The [petitioner] assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the Negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals.

Bruce Ackerman has argued, quite persuasively I think, that this conception of law’s capacity shifted dramatically during the New Deal, when our government began to regulate market inequities in previously unimagined ways. It was only after this fundamental change had taken root in our constitutional ethos that Brown became possible.   Indeed, Earl Warren very much assumed that “social prejudices” could “be overcome by legislation” and the “enforced commingling of the two races.” That, after all, is the gravamen of Brown—law can combat racial inequalities and injustice through (among other things) enforced integration—or at least that was what Brown was all about until the late 1980s.

By the time of Robert Bork’s nomination hearings, if not well before, the case had become canonical, and its opponents had recognized that an argument that relies on Brown being wrong is … well … a bad argument.   Sophisticated advocates began to try to get Brown on their side—if you can’t beat ‘em, join ‘em—but that required some careful recalibration. Through a series of arguments and opinions (which I won’t recount in this short space) advocates and judges began slowly to change Brown’s meaning in our argumentative practice. The real lesson of Brown, for these folks, was not that government should endeavor to promote racial justice by bringing people together in common space and experience, but that the law must be “colorblind” and let the racial chips fall where they may.

This tack has been remarkably successful. So much so that by 2007, in Parents Involved v. Seattle, Chief Justice Roberts could hold up the new Brown as the centerpiece of his final rhetorical flourish. Relying primarily on language in Brown II, in which the Court pressed school districts “to achieve a system of determining admission to the public schools on a nonracial basis,” Roberts made an exultant return to Plessy’s central conviction about law’s inability to achieve racial equality: “The way to stop discrimination on the basis of race, is to stop discriminating on the basis of race.” In concurrence, Justice Thomas made the point even more clearly, “racial imbalance is not segregation,” and Brown was only about ending segregation, and not about law as means of achieving racial equality.

It is (I think) ironic that Roberts and Thomas should appropriate the “colorblind” spirit of Justice John Harlan’s iconic Plessy dissent (which is decidedly not Brown), even as they bring the Fourteenth Amendment back to pre-New Deal formalism. But, as we await a decision in Fisher II, I think that’s where things stand. For a majority of this Court, racial inequality is a social problem, not a legal problem. And so, though the tour guide at St. Louis No. 1 Cemetery may not have known it, it may have been 60 years from Plessy to Brown, but it’s been 60 years back again.

Posted by Ian Bartrum on December 21, 2015 at 11:11 PM | Permalink

Comments

"The [petitioner] assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the Negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals."

This is so Scalian - when Justices like a law, and have no arguments in its favor, they fall back on pretending that Marbury v. Madison never happened, and they're helpless to actually, you know - overturn laws.

Posted by: Barry | Dec 28, 2015 2:36:00 PM

likes them?

Posted by: Joe | Dec 26, 2015 11:09:25 PM

You are also arguing with Powell in Bakke, aren't you? Isn't your argument that (somehow) the equal protection clause permits a state to give preferential treatment to some groups because it likes them?

Posted by: Brad | Dec 26, 2015 10:24:14 PM

Prof. Ackerman was involved in a project, edited by Prof. Jack Balkin, to write alternative opinions of Brown v. Bd. I found it an interesting effort. One thing alluded to by one or more "opinions" there was that Justice Harlan himself went along with the Plessy opinion in respect to public education, even writing an opinion allowing what amounted to separate and unequal there. Those who appeal to Harlan at times skip over this part.

Posted by: Joe | Dec 22, 2015 12:15:53 PM

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