Mark V Tushnet*
The pioneering African-American historian Rayford Logan called the early years of the Progressive era the "nadir" of race relations in the United States.l Historians and political scientists who study the Supreme Court generally agree that Supreme Court decisions are rarely substantially out of line with the kind of sustained national consensus regarding race relations that Logan described. Professors Bernstein and Klarman point to popular culture, including the roaring success of D.W. Griffith's epic Birth of a Nation attacking Reconstruction and defending the Ku Klux Klan, and elite opinion such as the flourishing of scientific racism to demonstrate that there was indeed a broad national consensus favoring policies of racial subordination.2 What then are we to make of Progressive era decisions like Buchanan v. Warley?3
Professors Bernstein and Klarman offer slightly different explanations for those decisions, and slightly different accounts of their significance. Both agree that the result in Buchanan is best explained as resulting from the Court's jurisprudential commitments. For Professor Bernstein, those commitments were to what he calls "traditional," as distinct from sociological, jurisprudence,4 while for Professor Klarman, the commitments were to enforcing at least, but perhaps no more than, the minimal meanings of the Constitution's language.5 Similarly, both authors agree that Buchanan had little impact on residential segregation, and that the NAACP's success in that case might have had some organization-building effects that contributed to the development of the NAACP's vigorous litigation campaign in succeeding decades.6 Professor Bernstein emphasizes the impact a ban on publicly mandated segregation would in theory have on housing prices, and is a bit more sanguine than Professor Klarman about the possibility that a Court with a sustained commitment to "traditional" jurisprudence would have stood in the way of public policies that contributed to African-American subordination.
I agree with the main thrust of both Articles, and so these comments raise questions around the edges of their arguments. Professor Bernstein accurately describes sociological jurisprudence and explains how its method of balancing competing social interests systematically aligned the Court with views that prevailed in other domains of public life. The Court's refusal to follow the precepts of sociological jurisprudence in Buchanan, however, allowed it to perform what Professor Bernstein calls its "traditional role" as an elitist counterweight to popular control of public policy.7 But Professor Bernstein's description of the Court's "traditional" jurisprudence needs sharpening.8
According to Professor Bernstein, the Court's "traditional" jurisprudence centered on a substantive commitment against "class" legislation.9 This commitment had its origins in the Jacksonian attack on class legislation, which Jacksonians and their heirs understood to be the result of elite control of the organs of public policy.10 The classic example of class legislation for Jacksonian jurisprudence was the establishment of the Bank of the United States, which, as Jacksonians saw it, resulted from the impact of the concentrated power of wealth on the legislative process. The idea of class legislation became generalized as the century progressed. The specific emphasis on the concentrated power of wealth was transformed into a concern about the impact of all forms of concentrated power. After the adoption of the Fourteenth Amendment, the Court could fairly interpret the Amendment as making Jacksonian jurisprudence the law of the land.ll Those who followed and transformed Jacksonian jurisprudence believed that class legislation disadvantaged ordinary, and unorganized, people.12 That is how the maximum work-hour law invalidated in Lochner v. New York13 could be seen as exemplifying class legislation: The concentrated power of organized bakery workers overbore the interests of unorganized consumers and unorganized individual bakers. …