Thursday, July 24, 2003
Black, White, & Brown
posted by James
I took a class on constitutional law my senior year at Amherst. It was my first serious exposure to Brown v. Board, although of course I knew about the aftermath. Many things about the case surprised me, but most striking was the analysis of various constitutional scholars. Those who adhere to particularly austere interpretations found themselves struggling to come up with a justification for the ruling, and apparently this was a major source of frustration.
Certainly it must continue to be a major source of frustration for various legal scholars who seek to serve in the judiciary (I'm thinking here of Bork, except that he found a way to justify Brown). After all, to admit that you think the ruling in Brown was wrong is to abandon all hope for approval by the Senate. Similar, if less intense, pressure awaits anyone who disagrees with Griswold v. Connecticut (contraception), and perhaps someday the same will be true of Lawrence v. Texas (sodomy).
This is deeply ironic precisely because the results aren't supposed to matter, at least to someone who interprets the Constitution strictly. If the strictly interpreted Constitution tells you to let states segregate their schools, but you sympathize with the desegregationists, guess which way you're supposed to vote? This is fine, and in fact I think anyone would go along with the general notion that judges should transcend their personal politics. The problem is that this kicks responsibility up one level, not to the ruling in a particular case, but to the choice of judicial philosophy.
This isn't so much a problem for adherents of other judicial philosophies, such as pragmatism, in which the results are allowed to matter. It's very funny, though, to see people who claim that the results can never matter squirming to find ways of achieving the right results. The more successful they are, the more dubious is their claim to be able to provide convincingly “correct” answers to judicial questions, for their success illustrates the malleability of their method.
Of course, a serious defender of strict interpretation of the Constitution can simply say that Brown was wrong, that the public shouldn't expect the Supreme Court to fix its social problems by fiat, and that judicial appointees shouldn't be disqualified because of their opinions on a particular case. The truth is, though, that not only would such scholars never be appointed to federal court, they would have trouble getting the rest of us to take them seriously. No one wants to live in a world where Brown v. Board was decided the other way.
Certainly it must continue to be a major source of frustration for various legal scholars who seek to serve in the judiciary (I'm thinking here of Bork, except that he found a way to justify Brown). After all, to admit that you think the ruling in Brown was wrong is to abandon all hope for approval by the Senate. Similar, if less intense, pressure awaits anyone who disagrees with Griswold v. Connecticut (contraception), and perhaps someday the same will be true of Lawrence v. Texas (sodomy).
This is deeply ironic precisely because the results aren't supposed to matter, at least to someone who interprets the Constitution strictly. If the strictly interpreted Constitution tells you to let states segregate their schools, but you sympathize with the desegregationists, guess which way you're supposed to vote? This is fine, and in fact I think anyone would go along with the general notion that judges should transcend their personal politics. The problem is that this kicks responsibility up one level, not to the ruling in a particular case, but to the choice of judicial philosophy.
This isn't so much a problem for adherents of other judicial philosophies, such as pragmatism, in which the results are allowed to matter. It's very funny, though, to see people who claim that the results can never matter squirming to find ways of achieving the right results. The more successful they are, the more dubious is their claim to be able to provide convincingly “correct” answers to judicial questions, for their success illustrates the malleability of their method.
Of course, a serious defender of strict interpretation of the Constitution can simply say that Brown was wrong, that the public shouldn't expect the Supreme Court to fix its social problems by fiat, and that judicial appointees shouldn't be disqualified because of their opinions on a particular case. The truth is, though, that not only would such scholars never be appointed to federal court, they would have trouble getting the rest of us to take them seriously. No one wants to live in a world where Brown v. Board was decided the other way.
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