Brown and Lawrence (and Goodridge).

AuthorKlarman, Michael J.
PositionHistoric rulings and how judicial decisionmaking influences social reform movements

TABLE OF CONTENTS I. WHY BROWN AND LAWRENCE WERE HARD CASES II. COURT AS VANGUARD OR LAGGARD? III. JUDICIAL STRATEGIZING--EVADING THE MARRIAGE ISSUE IV. CONSEQUENCES A. Brown's Backlash B. The Backlash Against Same-Sex Marriage C. Why Backlash? V. THE FUTURE VI. CONCLUSION: THE COURT'S LEGITIMACY One year shy of the fiftieth anniversary of Brown v. Board of Education, (1) the Justices issued another equality ruling that is likely to become a historical landmark. (2) In Lawrence v. Texas, (3) the Court invalidated a state law that criminalized same-sex sodomy. This article contrasts these historic rulings along several dimensions, with the aim of shedding light on how Supreme Court Justices decide cases and how Court decisions influence social reform movements.

Part I juxtaposes Brown and Lawrence to illustrate how judicial decisionmaking often involves an uneasy reconciliation of traditional legal sources with broader social and political mores and the personal values of the judges. Part II considers what these landmark decisions teach us about the relationship between Supreme Court decisions and movements for social reform. Part III examines the light these rulings shed on the strategic aspect of judicial decisionmaking: how courts sometimes temper their decisions in light of political constraints. Part IV considers the consequences of Brown and Lawrence (and Goodridge v. Department of Public Health (4)) and, especially, the political backlashes they ignited. Part V analyzes the rulings from the perspective of Supreme Court Justices attempting to predict the future. A brief conclusion speculates as to what such decisions--and history's verdict upon them--teach us about the source of the Supreme Court's legitimacy.

  1. WHY BROWN AND LAWRENCE WERE HARD CASES

    Legal scholars and political scientists have long debated how to understand judicial decisionmaking. (5) One school, that of the "formalists," argues that judges decide cases by interpreting legal sources, such as texts (statutes and constitutions), the original understanding of such documents, and legal precedents. According to an extreme version of this view, judges engaged in constitutional adjudication "lay the article of the Constitution which is invoked beside the statute which is challenged and ... decide whether the latter squares with the former." (6) In its more moderate (and more plausible) form, formalism holds that judicial decisionmaking is significantly constrained by legal sources such as text, original understanding, and precedent, even though some room for judicial discretion remains. (7) A competing school, that of the "realists" or the "attitudinalists," argues that judicial interpretation mainly reflects the personal values of judges. (8) In its crudest form, this perspective explains judicial decisionmaking as a reflection of what the judge ate for breakfast. (9) In its subtler (and more plausible) form, this view is encapsulated in a famous statement by Justice Oliver Wendell Holmes: "The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed." (10) Brown and Lawrence demonstrate the extent to which judicial decisionmaking is influenced by nonlegal factors. (11)

    Most people today would be surprised to learn that Brown was a hard case for the Justices: If state-mandated segregation in public schools is not unconstitutional, what is? That the ruling in Brown was unanimous, moreover, suggests that the Justices found the case to be easy. Yet appearances can be deceptive. In fact, the Justices were at first deeply divided on how to resolve Brown. (12)

    In a memorandum to the files that he dictated the day Brown was decided, Justice William O. Douglas observed that a vote taken after the case was first argued in December 1952 would have been "five to four in favor of the constitutionality of segregation in the public schools." (13) Justice Felix Frankfurter's head count was only slightly different: He reported that a vote taken at that time would have been five to four to invalidate segregation, with the majority writing several opinions. (14)

    Brown was difficult for many of the Justices because it posed a conflict between their legal views and their personal values. The sources of constitutional interpretation to which they ordinarily looked for guidance--text, original understanding, precedent, and custom--indicated that school segregation was permissible. By contrast, most of the Justices privately condemned segregation, which Justice Hugo Black called "Hitler's creed." (15) Their quandary was how to reconcile their legal and moral views.

    Frankfurter's preferred approach to adjudication required that he separate his personal views from the law. He preached that judges must decide cases based upon "the compulsions of governing legal principles," (16) not "the idiosyncrasies of a merely personal judgment." (17) In a memorandum he wrote in conjunction with the first flag-salute case in 1940, (18) Frankfurter noted that "[n]o duty of judges is more important nor more difficult to discharge than that of guarding against reading their personal and debatable opinions into the [c]ase." (19)

    That Frankfurter abhorred racial segregation cannot be doubted; his personal behavior clearly demonstrated his egalitarian commitments. In the 1930s he had served on the legal committee of the National Association for the Advancement of Colored People ("NAACP"), and in 1948 he had hired the Court's first black law clerk, William Coleman, Jr. (20) Nonetheless, he insisted that his personal views were of limited relevance to the legal question of whether segregation was constitutional: "However passionately any of us may hold egalitarian views, however fiercely any of us may believe that such a policy of segregation ... is both unjust and shortsighted.... [h]e travels outside his judicial authority if for this private reason alone, he declares [it] unconstitutional." (21) The Court could invalidate segregation, Frankfurter believed, only if it was legally as well as morally objectionable.

    Yet Frankfurter had difficulty finding a compelling legal argument for striking down segregation. His law clerk, Alexander Bickel, spent a summer reading the legislative history of the Fourteenth Amendment, and he reported to Frankfurter that it was "impossible" to conclude that its supporters had intended or even foreseen the abolition of school segregation. (22) To be sure, Frankfurter believed that the meaning of constitutional concepts can change over time, (23) but as he and his colleagues deliberated, public schools in twenty-one states and the District of Columbia were still segregated. He could thus hardly maintain that evolving social standards condemned the practice. Furthermore, judicial precedent, which Frankfurter called "the most influential factor in giving a society coherence and continuity," (24) strongly supported it. Of forty-four challenges to school segregation adjudicated by state appellate and federal courts between 1865 and 1935, not one had succeeded. (25) Indeed, on the basis of legislative history and precedent, Frankfurter had to concede that "Plessy is right." (26)

    Brown presented a similar dilemma for Justice Robert H. Jackson, who also found segregation anathema. In a 1950 letter, Jackson, who had left the Court during the 1945-1946 term to prosecute Nazis at Nuremberg, wrote to a friend: "You and I have seen the terrible consequences of racial hatred in Germany. We can have no sympathy with racial conceits which underlie segregation policies." (27) Yet, like Frankfurter, Jackson thought that judges were obliged to separate their personal views from the law, and he was loath to overrule precedent. (28)

    Jackson revealed his internal struggles in a draft concurring opinion that began: "Decision of these cases would be simple if our personal opinion that school segregation is morally, economically or politically indefensible made it legally so." (29) But because Jackson believed that judges must subordinate their personal preferences to the law, this consideration was irrelevant. When he turned to the question of whether existing law condemned segregation, he had difficulty answering in the affirmative:

    Layman as well as lawyer must query how it is that the Constitution this morning forbids what for three-quarters of a century it has tolerated or approved. ... Convenient as it would be to reach an opposite conclusion, I simply cannot find in the conventional material of constitutional interpretation any justification for saying that in maintaining segregated schools any state or the District of Columbia can be judicially decreed, up to the date of this decision, to have violated the Fourteenth Amendment. (30) That the nine Justices who initially considered Brown would be uneasy about invalidating segregation is unsurprising. All of them had been appointed by Presidents Franklin D. Roosevelt and Harry S. Truman on the assumption that they supported, as Jackson put it, "the doctrine on which the Roosevelt fight against the old court was based--in part, that it had expanded the Fourteenth Amendment to take an unjustified judicial control over social and economic affairs." (31) For most of their professional lives, these men had criticized untethered judicial activism as undemocratic--the invalidation of the popular will by unelected officeholders who were inscribing their social and economic biases onto the Constitution. This is how all nine of them understood the Lochner (32) era, when the Court had invalidated protective labor legislation on a thin constitutional basis. The question in Brown, as Jackson's law clerk William H. Rehnquist noted, was whether invalidating school segregation would...

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