The Schoolhouse Gate

Last fall I heard Justin Driver give a superb lecture at Drake Law School on free speech in the public schools. The lecture was based on a book he was writing about constitutional law and public education. The book is now out and it is called "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind." It was published last month by Pantheon Books.

Yesterday SCOTUSblog posted an interview with Professor Driver about his new book. As he explains in the interview, the book "argues that the public school has served as the single most significant site of constitutional interpretation within the nation’s history." He contends that "when we disagree over what the Constitution means in public schools, we engage in an argument that is fundamentally about what sort of nation we want the United States to be."

One part of the interview that particularly caught my eye is Driver's revisionist account of Brown v. Board of Education. Here is an excerpt from the interview:

"Many observers have asserted that the Supreme Court’s unanimity was essential in Brown because a dissenting opinion would have stoked southern opposition. As subsequent events would demonstrate, however, southerners did not need any encouragement from the Supreme Court to resist Brown in a maximal form. In 1956, for example, 19 U.S. senators and approximately 80 congressmen joined forces to issue a document called the Southern Manifesto denouncing Brown as wrongly decided. Anti-Brown forces eventually coalesced around a rallying cry holding that they would accept racial integration exactly 'never!' Importantly, it seems quite plausible that Chief Justice Earl Warren, had he not felt compelled to placate Justice Stanley Reed — the last holdout for Jim Crow — could have written a more muscular opinion in Brown. Whatever modest gain Warren realized from Brown’s unanimity in the form of squelched dissent, in other words, could have been counterbalanced — and perhaps even outweighed — by the attendant loss of watering down the opinion’s condemnation of Jim Crow. Thus, rather than continuing to champion Warren’s behind-the-scenes maneuvering in Brown uncritically, one might more appropriately view those actions as well-intentioned but ultimately misguided." 

I have always admired Chief Justice Warren's skill in securing a unanimous opinion in Brown, but Driver's counterargument is compelling. His book looks absolutely great.  

Here is a link to the full SCOTUSblog interview with Professor Driver. And here is a link to the book's Amazon page.

Comments

[anon]

Of course, the law is irrelevant: for a Progressive, since Wilson's time, the law is just a pretense to pretend to cloak public policy choices in judicial garb.

In fact, this is all total bs. There was no more "muscular opinion" to go beyond the rule SCOTUS adopted that Plessy could not stand with respect to segregated public schools. The rule, on the case before the court, said it all, and, as noted, the outrage of some proves just how consequential that ruling was. But, of course, "progressives" want more.

It wasn't and isn't the role of the SCOTUS to make political speeches. some might wish that the opinion had engaged in a rhetorical "condemnation of Jim Crow" instead of deciding a case or controversy.

Those who so believe are not constitutionalists, and believe that their values and opinions should be proclaimed by the SCOTUS as "law." The constitution, as interpreted by the SCOTUS, did not permit "separate but equal" public education because, on the evidence before the court, separate was not equal. The political choices of the legislatures were curbed by the provisions of the Constitution, as interpreted by the SCOTUS>

Period. The rest of this argument isn't insightful; it is just more of the same old garden variety political trash that "progressives" love so much.

[r]

After reading this, I went back to read Brown. It had been awhile since I'd read the opinion, so I thought maybe I had forgotten something.

However, I just cannot imagine what a "more muscular opinion" would have looked like - what words would have been included that would have been both (i) directly relevant to the case before the Court and (ii) more beneficial towards granting equal rights?

The words actually used by the Court were rather muscular and unambiguous, especially the first two sentences of the conclusion:

"We conclude that, in the field of public education, the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."

The implementation of the decision certainly could have been stronger, but given the circumstances, it is highly questionable whether immediate implementation would have been the best course, or even enforceable.

Although the decision was fiercely resisted, as everyone knew it would be, a non-unanimous decision would have added much additional fuel to the fire. Altogether, I guess I just don't see what changes could have been made that could possibly have outweighed the benefits of unanimity. Neither the interview nor the available extracts from the book answer this question. Maybe someone else can elucidate why Professor Driver's argument is compelling?

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I am not sure a Brown "muscular" holding would have worked during the 50's. It's like asking why Roosevelt didn't bomb the tracks and Concentration Camps. Would America have sacrificed "everything" for four years of war after a Depression just to save Jews? Or did a broader appeal to defeat Nazis and Hitler work better? Would Eisenhower have sent the National Guard to Central High School if Brown was "in your face" or "muscular?" Even President Trump today is facing roughly the struggle as he deal with the Washington Post Journalist at the Saudi consulate. Trump's inviolate duty is to protect the US---he has to walk a tight rope here between condemnation of a horrific crime and the Best Interests of the US.