By Cristian A. Farias, Former Writer-in-Residence at the Thurgood Marshall Institute of the NAACP Legal Defense Fund
When the Supreme Court decided the seminal Brown v. Board of Education, the justices made it plain that the “original meaning” of the Constitution’s guarantee of equal protection had little bearing on their decision to end school segregation once and for all.
Chief Justice Earl Warren, writing for a unanimous court, did acknowledge that the “circumstances surrounding the adoption of the Fourteenth Amendment in 1868 … cast some light” on the amendment’s meaning at the time it was ratified. But then he went on to say that those things were “not enough to resolve the problem with which we are faced.”
“At best, they are inconclusive,” Warren wrote, and then added: “We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.”
In other words, the Supreme Court didn’t look to the past for a rule of decision, but to the present legal reality. To the black schoolchildren who were harmed by a regime that kept them separate from their white peers. Decades later, the late Justice Antonin Scalia and other judicial conservatives tried to insist that Brown was, in fact, an originalist decision. But even in the wake of all the academic debate the ruling generated, one thing remained undebatable: No serious American, lawyer, or student of history — no matter their background or political stripe — could contest that the landmark case transformed the Constitution, if not the nation itself, by breathing new life into a constitutional provision that, since 1868, had been little more than dead letter.
Today, thanks to Brown, legal apartheid is dead and gone in the United States. Today, thanks to Brown, there isn’t a person in this country — black or white, male or female, gay or straight, citizen or immigrant — who hasn’t been touched by its central holding. Its promise, proclaimed 64 years ago this week, lives on.
Excepted from this general, common-sense understanding, it seems, is the recent spate of judicial nominees put forth by Donald Trump, a number of whom have become online sensations for all the wrong reasons. You may have seen the viral video of Wendy Vitter, a nominee to the federal bench in Louisiana, declining to tell Sen. Richard Blumenthal (D-Conn.) whether she agrees that Brown was correctly decided. She turned herself into knots to answer that simple yes-or-no question — Vitter’s most charitable comment about the decision was she’d be “bound” by it.
And yet she and others who have appeared before the Senate Judiciary Committee, including 5th Circuit nominee Andy Oldham, have declined to say in so many words that the ruling is the law of the land and part of our accepted constitutional canon.
Oldham tried to weasel his way out of the question by noting, without evidence, that “even the most universally accepted Supreme Court case is outside the bounds of a federal judge to comment on.” In further defense of his nondefense of Brown, Oldham also tried to compare his answer to that of Justice Neil Gorsuch, who in his own confirmation hearing didn’t quite come out say that Brown was correctly decided — at most, he called it “a correct application of the law of precedent.” But after being pressed on the issue he nonetheless praised the ruling and observed that it “corrected one of the most deeply erroneous interpretations of law in Supreme Court history, Plessy v. Ferguson, which is a dark, dark stain on our court’s history.”
And so we’ve come full circle. From a period when every Supreme Court nominee, liberal or conservative, had no qualms with holding Brown in high esteem to today’s aberration: a shyness, if not downright refusal, to stand up for the centerpiece of American jurisprudence. Our most cherished of precedents.
You would think inquiring about Brown is just limited to those nominees in the hot seat. But earlier this month, a coalition of court advocates met in Iowa with staff for Chuck Grassley, the chairman of the Senate committee that vets judicial nominees. When confronted with what seems to be the new normal for Trump nominees and Brown, Michael Davis, Grassley’s chief counsel for judicial nominations and a former Gorsuch law clerk, seemed to take umbrage at the question.
“I think it’s cheap political games and cheap racial politics going on with the Brown v. Board of Education discussion,” Davis told the court advocates, according to a video capturing the meeting. Davis added that that line of inquiry, otherwise common for judicial nominees in the past, amounted to “gutter politics.” If that’s how one of the top lawyers helping a leading senator discharge his advice-and-consent duty feels about even bringing up Brownduring a hearing, then we shouldn’t be so surprised at the nominees’ own shameful silence.
I grant that it’s a stretch to accuse these would-be judges of secretly supporting the return of de jure racial segregation. But to accept the canard that it’s improper for them to talk about precedent that no respectable jurist anywhere thinks is at risk of being challenged strains credulity. Brown is not going anywhere, and anyone suggesting its validity may one day reach her courtroom as an actual case or controversy can’t possibly be taken seriously as a legal thinker.
Here’s what will most certainly happen, though: Voting discrimination will still run rampant. School districts will still try to re-segregate. Affirmative action may yet again come under attack. Policies explicitly targeting people of color will be enacted — and have been. And you can expect people of good conscience to raise the 14th Amendment as they litigate around these issues.
And here’s another prediction: None of those cases will call Brown into question. But I can guarantee you that those cases will require judges to have a foundational understanding of Brown and the decades of jurisprudence that followed, so that those core principles may be applied to a fresh set of facts.
And just like the Supreme Court did in 1954, judges will continue applying the 14th Amendment’s equality guarantee as the justices did then — not with an eye toward some nebulous original meaning, but to the realities as they exist today. To expect anything less of judicial candidates who will be hearing some of the most pressing issues of our day would be a disservice to both the country and the rule of law.
