Kennedy, Randall L., The Yale Law Journal
ESSAY CONTENTS INTRODUCTION I. WHAT DID BROWN SAY? II. HOW SHOULD WE ASSESS THE BROWN OPINION? III. WHAT WAS THE RELATIONSHIP OF THE BROWN OPINION TO THE CIVIL RIGHTS ACT OF 1964? IV. WHAT ROLE SHOULD BROWN PLAY IN PROGRESSIVE MOVEMENTS?
The judicial decision that Professor Bruce Ackerman discusses most intensively in his sprawling, creative, and instructive account of the civil rights revolution (1) is Brown v. Board of Education. (2) In Brown and its companion case, Bolling v. Sharpe, (3) the Supreme Court invalidated government action authorizing or requiring the racial separation of pupils in primary and secondary public schools. I pose four questions about Brown, relating my answers to Professor Ackerman's analysis.
I. WHAT DID BROWN SAY?
According to Professor Ackerman, Chief Justice Earl Warren's opinion for the Court in Brown deployed "judicial situation-sense" to tell "the commonsense truth," which was that white "southerners were humiliating black children by refusing to allow them to attend common schools with their white peers." (4)
Is that characterization a realistic portrayal or translation of Warren's Brown? I think not. Warren penned an opinion that, with regard to the regulation of race relations, said as little as possible beyond concluding that "in the field of public education the doctrine of 'separate but equal' has no place" and that "[s]eparate educational facilities are inherently unequal." (5) Conspicuously absent from the opinion is any account of white Southerners' humiliating black children. This omission was deliberate. Warren wrote privately that he sought to craft an opinion that was "short, readable by the lay public, non-rhetorical, unemotional, and, above all, non-accusatory." (6) Warren succeeded. His Brown opinion manages to invalidate de jure segregation without castigating or indeed even mentioning the officials who imposed Jim Crow oppression.
To be sure, Warren's opinion deals very differently with segregation than previous opinions of the Court. In Plessy v. Ferguson, (7) the Court's most influential affirmation of segregation's constitutionality, a majority of the Justices scoffed at the idea that a governmentally imposed regime of separate but equal facilities could reasonably be viewed as an unfriendly, indeed stigmatizing, form of discrimination against blacks. According to the Plessy Court, if blacks felt insulted by the requirement of a separation of the races, the insult arose "not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." (8) Subsequently, scores of jurists, including some of the most esteemed of the twentieth century, complacently affirmed the baleful notion of separate but equal, accepting the blatant lie that state-mandated racial separation could somehow be squared with equality before the law. (9) By contrast, Warren's Brown gave no rhetorical support to segregation.
Still, the Chief Justice's description of segregation in Brown is strikingly wan. It says remarkably little about segregation's origins, ideology, implementation, or aims. A reader of Brown alone, with no knowledge of American race relations, might well be mystified by the hurt and anger of those protesting against segregation, simply because Warren's opinion is so diffident. Warren avers that "[t]o separate [blacks] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." (10) He embraces the finding of a lower court that "the policy of separating the races is usually interpreted as denoting the inferiority of the negro group." (11) He also asserts in Bolling v. Sharpe that "segregation is not reasonably related to any proper governmental objective." (12) But Warren's opinion says nothing about the aims of segregation. …