Yeomans Work

Brown, Upside-Down

February 14, 2019

Neomi Rao is the latest Trump judicial nominee to refuse to say whether she thinks Brown v. Board. of Education was correctly decided. She joins a growing list of Trump picks who refuse to endorse this iconic Supreme Court decision.

The stated reason is that they don’t want to start down a slippery slope of endorsing and rejecting decisions. That explanation is nonsense, since there are many sticky footholds along the descent from Brown to cases now pending in the courts.  The more credible reason is that they don’t want to have to embrace or reject Roe v. Wade. Nor do they want to have to explain why they would endorse Brown, but refuse to opine on Roe, thereby consigning Roe to a less secure class of decisions.

But, other recent, high profile Republican nominees, including Brett Kavanaugh, Neil Gorsuch, John Roberts, and Samuel Alito have been willing to praise Brown as an example of the Supreme Court at its best.  They all faced the same concerns about Roe, yet plowed ahead on Brown.  If they could do it, why not circuit court nominees Rao, Chad Readler, or Andrew Oldham, or a series of district court nominees?  Is there something more that is pushing them away from Brown or that makes its embrace no longer politically necessary?

The truth is that conservatives never fully embraced Brown.  The Court’s decision striking down laws requiring racial segregation of schools was met with massive resistance by people living in affected states, conservative politicians, and conservative intellectuals.  President Eisenhower was no fan. Barry Goldwater opposed the decision. William F. Buckley rejected the Court’s reasoning.  Prof. Herbert Wechsler decried its intrusion on the right of association.  Southern politicians roundly denounced and resisted the decision, preferring to impeach Earl Warren rather than accept Brown.

Appeals to resisters of Brown lay at the core of Nixon’s southern strategy.  The drive to appoint ideologically conservative judges was born, in significant part, out of reaction to Brown and Roe v. Wade.

After Brown, except for a brief assertion of judicial authority in Little Rock in 1958, the Supreme Court largely stayed away from school desegregation until 1968 when it told lower courts and jurisdictions the time had come to eliminate segregation “root and branch.”  Enforcement of Brown’s mandate reached its high-water mark in 1971 with the Court’s approval of a comprehensive desegregation decree for Charlotte-Mecklenburg, North Carolina that included busing and student assignments based on race.

Thereafter, an increasingly conservative Supreme Court majority issued a steady stream of rulings narrowing the reach of Brown and eventually redefining its meaning.  It clarified that Brown applied only to segregation mandated directly by the state and not to equally harmful segregation that resulted from more complex causes.  It made it nearly impossible for courts to order remedies that would include urban and suburban districts.  It loosened standards for ending court-imposed desegregation decrees.  And it failed to recognize fully the link between residential segregation and school segregation.

By 2007, conservative justices had reduced Brown to a nearly unrecognizable principle that could be weaponized to strike down the voluntary efforts of formerly segregated school districts to maintain inclusive schools.  Louisville had recently emerged from a decades long desegregation decree and wanted to maintain the racially inclusive schools the decree had created.  Seattle had adopted desegregation measures to preempt lawsuits.  The Court told each of them that their assignment plans could not survive Brown.  Chief Justice Roberts, writing for the four most conservative justices, stated that the evil addressed in Brown was the classification of children based on race.  For these justices, Louisville’s and Seattle’s limited consideration of race to create diverse schools was indistinguishable from laws that prohibited African American children from attending white schools.  In reality, of course, the harm addressed by Brown was a prohibition of African Americans attending schools with white children, which was central to the maintenance of white supremacy.

Conservative jurists, therefore, gradually converted Brown into the seminal statement of a colorblind Constitution, one that deplores any consideration of race.  That is the Brown conservative judicial nominees have embraced, rather than the Brown that promised desegregation.  Theirs is not the Brown that inspired so much hope that the country was at last on the road to overcoming the racial caste system so brutally enforced by Jim Crow laws.  The Brown they celebrate prohibits efforts at racial inclusion, including affirmative action.  Conservative nominees celebrate an upside down Brown that has left our schools more segregated than they were in 1954.

Throughout this evolution, however, Brown remained sufficiently iconic that judicial nominees felt an obligation to praise it.  Apparently, that political imperative has disappeared.  The change, in part, stems from the composition of the Senate, whose solid Republican majority has shown no interest in asserting its independence from the President, whose political career has relied heavily on racism.  Nominees may be following instructions from their White House handlers to steer clear of Brown.

The nominees who have refused to embrace Brown have come before the Senate Judiciary Committee with writings and records that raise serious doubts as to whether they will protect the rights of traditional victims of discrimination.  Their refusal to acknowledge the correctness of Brown speaks forebodingly about the direction of their jurisprudence and discouragingly about the state of our politics.

No senator who values the independent role of the Senate in confirmations and accepts the fundamental principle of racial equality can vote to confirm a judicial nominee who will not say that Brown was correctly decided.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.