From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality.

• Author: Lassiter, Matthew D.
• Position: Brief Article - Book Review

FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY. By Michael J. Klarman. New York: Oxford University Press. 2004. Pp. xii, 655. $35.

1. BACKGROUND

   More than a decade ago, in a colloquium sponsored by the Virginia Law Review, (1) scholars of the civil rights movement launched a fierce assault on Michael J. Klarman's (2) interpretation of the significance of the Supreme Court's famous school desegregation ruling in Brown v. Board of Education. (3) Klarman's "backlash thesis," initially set forth in a series of law review and history journal articles and now serving as the centerpiece of his new book, revolves around two central claims. First, he argues that the advancements toward racial equality generally attributed to Brown were instead the inevitable products of long-term political, social, and economic transformations that "would have undermined Jim Crow regardless of Supreme Court intervention." (4) Second, he credits Brown with a role in this historical process only through a chain of indirect causation: the Supreme Court decision galvanized massive resistance and racial violence in the South, which civil rights activists capitalized upon by engineering televised confrontations that mobilized public opinion across the nation, which created the climate for the passage of the federal civil rights and voting rights legislation of the mid-1960s, which directly and profoundly transformed southern race relations. (5) Although the contours of this general story are part of the standard historical narrative, firmly grounded in the secondary source literature and taught in almost every university classroom, Klarman's specific charge that civil rights scholars have greatly exaggerated the importance of Brown set off a bit of a firestorm. The first wave, which accompanied the 1994 Virginia Law Review article, included not only the expected differences of historiographical analysis but also criticism of a surprisingly personal nature.

   The response by David J. Garrow, titled Hopelessly Hollow History, ascribed Klarman's views on Brown to the "professorial urge for interpretive novelty," which often produces useful advancements but in some unfortunate cases results in "revisionist interpretations whose rhetorical excesses are quickly revealed for what they are when old, but indisputable historical evidence, is inconveniently brought back to the pictorial foreground." (6) Garrow highlighted Klarman's failure to acknowledge the "direct influence of Brown on the instigation of the 1955 Montgomery [bus] boycott," a causal analysis that emphasizes the crucial inspiration for southern black activists who finally had the moral authority and legal force of the Supreme Court on their side. (7) While conceding Klarman's point that Brown resulted in little school desegregation during the decade after 1954, Garrow blamed the Court itself for emboldening resistance to its decree through the infamous "all deliberate speed" implementation guidelines known as Brown II. (8) Under this scenario, primary fault for the limited reach of Brown rested in the justices' constrained vision of enforcement rather than in their premature placement of desegregation on the nation's political agenda. In the final sentence of his rejoinder, Garrow dismissed Klarman's entire project with undisguised condescension for the law professor treading on historians' turf: "[C]ommentators would be well-advised to keep their professional desire for interpretive novelty in check, for rhetorically excessive overstatements and oversimplifications oftentimes do turn out to be hopelessly hollow once a fuller understanding of the historical record is brought to bear." (9)

   Mark Tushnet's critique, published in the same issue of the Virginia Law Review, offered a different variation of Garrow's indictment of careerist zealotry:

   Lawyers are notorious for producing law-office history, the result of the professional deformation in which judgment must be awarded to one or the other side. Law-office history reduces complexity and contradiction [tropes favored by academic historians] to simplicity and provides a story in which all evidence points to a single conclusion. (10) Tushnet contended that Klarman's backlash thesis underplayed the historical magnitude of Brown when understood as a Supreme Court proclamation of a "fundamental principle of constitutional law"--that government policies designed to discriminate against black citizens are illegitimate--a proposition with momentous consequences that have extended far beyond the particular arena of southern school desegregation. (11) Turning to the details, Tushnet also charged that Klarman's inevitability framework represented "a largely determinist account of the transformation of race relations" and that the emphasis on the chain reaction of white violence in the South and white public opinion in the North "com[es] close to eliminating African Americans as historical agents." (12) He concluded with the announcement that "[t]o the extent that Professor Klarman appears to believe that he has established the unimportance of Brown [as a declaration of constitutional principle] ... and to believe that he has deepened our understanding of the limits of judicial power, he is mistaken." (13)

   Klarman's rebuttal, subtitled Facts and Political Correctness, struck back in kind. He began with the observation that "Brown v. Board of Education is today so politically sacrosanct that one cannot dispassionately discuss the decision's soundness as a matter of constitutional theory." (14) Although both Garrow and Tushnet had engaged Klarman almost exclusively on the immediate issues of historical causation and the evidentiary basis for these claims, his response quickly made it clear that a broader debate about the proper "limits of judicial power" undergirded his inquiry into the impact of Brown. (15) The "political correctness" that circumscribed this academic discussion "can only be lamented," Klarman continued, "as Brown was not an unambiguously correct decision either for the justices or the American public in 1954, and to formulate constitutional theories on the basis of ahistorical judgments is at the very least unconstructive, and possibly quite insidious." (16) Klarman then proceeded to marshal countervailing evidence against Garrow's claim that Brown directly inspired the civil rights demonstrations that followed, and he characterized Tushnet's accusation that the backlash thesis denied historical agency to black southerners as "not only inaccurate, but offensive." (17) But Klarman emphasized that his critics were battling him only on a secondary front, because "[t]he cultural or symbolic account of Brown's significance has become ... something of a fallback position for those committed to preserving Brown's status as a judicial icon while unable to identify concrete ways in which the decision mattered." (18)

   This debate, which has been reinvigorated with the publication of Klarman's lengthy and impressive book examining the Supreme Court and racial discrimination from Plessy to Brown, is deeply contentious in large part because its participants are starting from such different vantage points. (19) To oversimplify only slightly, most historians who specialize in the fields of civil rights and African-American, southern, and urban studies do indeed consider Brown to be "unambiguously correct" and are not that bothered by law school anxieties about its "soundness as a matter of constitutional theory." (20) (The most salient criticisms of Brown leveled by academic historians emanate from the left end of the spectrum, from scholars who question the assimilationist philosophy of the liberal integrationist agenda). (21) Historians generally measure Supreme Court decisions on a scale of whether they advance or harm the struggle for social justice and racial equality--meaning that there is an effective consensus within the profession that Dred Scott, Plessy, and Korematsu were wrongly decided, and a widely shared belief that the most important lesson of Brown is how far the nation still has to go to live up to its promises. (22) Many historians reflexively believe that judicial activism is necessary to achieve liberal policy outcomes, a stance undoubtedly shaped by the overall thrust of the Supreme Court decisions of the Warren era, and they tend to be suspicious that theories of constitutional law designed to limit judges from issuing countermajoritarian rulings are animated by original-intent conservatism or some other undertaking associated with the political right. In short, academic historians who specialize in modern American society and politics effectively have embraced a results-oriented rather than a process-oriented standard for evaluating constitutional law, including a firm belief that judges should expand and defend the rights of oppressed minorities and that countermajoritarian decisions are often an essential component of this mission. (23)

   Klarman has been a vocal proponent of political process theory, an approach to constitutional law that seeks to reconcile judicial review with democracy "by demonstrating that judicial review consists of something other than judges simply replacing legislative policy judgments with their own." (24) The "countermajoritarian problem," in Klarman's view, can be resolved only through a constitutional theory that limits judicial activism to those situations in which the outcome of such intervention can be demonstrated to be more democratic than the legislative choices of elected representatives. (25) In the early 1990s, Klarman carved out an exception that justified Brown within the political process framework, based on the argument that the nearly universal disfranchisement of black southerners characterized Jim Crow as an undemocratic system and the counterfactual (and qualified) hypothesis that "effective enforcement of black voting...