BROWN’S UNDERSIDE

Any discussion of Brown’s underside must begin by acknowledging its sunny side. Brown didn’t achieve school integration or even mere desegregation in the relatively short run. What it did do, though, was validate the constitutional claims of the long civil rights movement.¹ That movement drew upon many sources of validation, of course, but Martin Luther King, Jr.’s powerful statement in 1955 showed that the Constitution (and the Supreme Court) mattered:

Patricia Williams’s classic article Alchemical Notes articulated the ways in which the very idea of rights—not their implementation—worked its way into the consciousness of civil rights activists.³ Without Brown there would still have been a civil rights movement, but it would have lacked an important rhetorical and motivational resource.

What does “without Brown” mean, though? Counterfactual speculation is risky, but I believe that a decision rejecting the direct challenge to segregation as such would have made two points. First, the equality component of the separate but equal doctrine had to be taken seriously. So, for example, the Court might have remanded Briggs v. Elliott, the South Carolina desegregation case, with directions that the lower court reconsider its decision that Governor James Byrnes’s program for upgrading the state’s schools for Blacks satisfied the equality requirement.⁴ Second, picking up on thoughts expressed (with a great deal of skepticism) by Justice Robert Jackson, the Court might have pointed out that Congress had ample power to require that schools (and other facilities) be desegregated.

I will take these in reverse order. As Justice Jackson recognized, the idea that a Congress that could not muster majorities to enact laws against lynching would enact a school desegregation statute was a fantasy in 1954. Southern politicians simply had too much power within the Democratic Party, enhanced by the filibuster in the Senate, for Congress to be able to act.

What of “real” separate equality? The Court’s remedial timidity after Brown suggests that it would not have enforced such a requirement with any vigor.⁵ I believe that the lower court in Briggs v. Elliott would have said, in effect, “What more do you want South Carolina to do? Byrnes’s program satisfies the equality requirement.” And I suspect that the Court would have thrown up its hands, letting the lower courts work out the equality requirement without substantial supervision. In the end, there might have been modest improvements in the quality of education for Blacks in the segregated South and somewhat greater improvements in border states, but no dramatic transformations.

Retrospectively we can impose on the Court the perception that even it would not be able to take “separate but equal” seriously. The reason is, as some civil rights activists came to put it, “green follows white.” That is, Blacks could get resources only if whites did as well. With regard to Brown, that meant that increasing the resources available to Black students would occur only if they were in the same schools as white students. Note the irony here: to achieve racial equality in material resources, we must acknowledge the racist social reality that green follows white.

One final possibility is worth mentioning. Building upon Williams’s insights, Douglas NeJaime has described how activists can win through losing (in court).⁶ Had Brown reaffirmed Plessy v. Ferguson, perhaps civil rights activists would have developed rhetorical and motivational tropes in the following form: “Jesus of Nazareth was no utopian dreamer. The Supreme Court was wrong (or the Constitution is wrong). The rot runs so deep that we must redouble our efforts to achieve justice.”⁷

In the world as it was, though, Brown did matter rhetorically and motivationally. That is its sunny side. What was on its underside?

Writing in Brown’s immediate aftermath, Zora Neale Hurston criticized the decision because, as she saw things, the outcome was bound to undermine the vitality of vibrant separate institutions that sustained a distinctive and valuable Black culture.⁸ That was one of the case’s undersides. A second emerged into view many decades after Brown. When the Supreme Court had turned gradually, then rapidly, into a bastion of conservative power, liberals and progressives continued to see Brown as an exemplar of the Court’s “true” role in promoting democracy.

Trained as an anthropologist, Hurston moved in Harlem’s intellectual circles in the 1920s and 1930s. She gradually became alienated from that community, and her general political orientation drifted to the right. By the 1950s she was quite conservative.⁹ Her letter to the Orlando Sentinel on Brown reflected that general conservatism, for example in its concern about “Govt by administrative decree.”¹⁰ Hurston described the letter as her “just thinking out loud,” and it was not a detailed exposition of a fully developed position. “[I]f there are adequate Negro schools and prepared instructors …, there is nothing different except the presence of white people,” she wrote, and she regarded the ruling that such schools were unconstitutional as “insulting rather than honoring my race.” She offered the metaphor of “the white mare” that every mule, “if not restrained,” would follow. She saw “no tragedy in being too dark to be invited to a white school social affair.”

As we might put it today, she rejected the view that whiteness is normative.¹¹ In that sense, separate (if materially equal) could be normatively equal as well. Though Hurston only hinted at the implications of that position, they were, I think, clear enough: the separate institutions that Blacks had developed under segregation were at least as valuable for Blacks as integrated institutions would be. This position was not opposed to integration as such. Black communities that chose to seek integrated schools were expressing a normative view emerging from those communities, but integration “by administrative decree,” not emerging organically from Black communities, was a different matter.

Hurston’s final paragraph brought the point home concretely, though briefly. “It is a contradiction in terms to scream race pride and equality while at the same time spurning Negro teachers and self-association.”¹² That real desegregation would have severe adverse consequences for Black teachers was widely known even as the Brown litigation went forward.¹³ White parents, it was widely (and correctly) believed, would not put up with having their children taught by Black teachers.¹⁴ The effects would not be merely economic, though the loss of income was not to be ignored; they were institutional as well, because Black teachers were important figures in the organizational and imaginative life of Black communities.

Justice Clarence Thomas returned to Hurston’s themes in two cases involving the nearly final stages of the nation’s effort to achieve real integration. Perhaps most dramatically, he opened his concurring opinion in Missouri v. Jenkins with an express rejection of whiteness as normative: “It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.”¹⁵ Like Hurston, Justice Thomas brought the point home by referring to specifics about majority-Black institutions.¹⁶

United States v. Fordice dealt with Mississippi’s system of higher education and in particular with how a desegregation decree should deal with the state’s historically Black colleges.¹⁷ Justice Thomas’s concurrence took the Court’s determination that efforts to increase integration in that system could (should?) be founded upon “sound educational justification[s]” as opening up the possibility that the state might continue to “maintain[] historically black colleges as such,” the emphasis meaning, I take it, that they could be maintained for the very purpose of perpetuating their distinctive racial legacy.¹⁸ Justice Thomas quoted a 1971 report from the Carnegie Commission on Higher Education that described historically Black colleges and universities as “a source of pride to blacks who have attended them and a source of hope to black families who want the benefits of higher learning for their children” and quoted another author who described these institutions as “a symbol of the highest attainments of black culture.”¹⁹ He concluded his opinion, “It would be ironic … if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges.”²⁰ Justice Thomas reiterated this point in Missouri v. Jenkins, which involved elementary and secondary schools.²¹ “[B]lack schools,” he wrote, “can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.”²²

On the way to a conclusion about Brown’s impact on Black institutions and culture, I think it worth pausing briefly to see whether Justice Thomas’s discussion of historically Black institutions actually does support his views about maintaining these institutions “as such.” Most of his phrasings are backward-looking, describing what these institutions had done during the era of state-enforced segregation and how they had contributed to the development of Black communities. Going forward, though, might not these contributions continue if some schools were “merely” demographically majority-Black and other schools were demographically diverse with some Black principals and teachers? In the United States today we would describe school systems with these characteristics as multicultural,²³ and the very point of the ideology of multiculturalism is to treat each component as equally normative.²⁴

Shifting attention from Black institutions “as such” to Black institutions in a multicultural society helps us see why Hurston and Thomas were both right and wrong. They were right in seeing that Brown and some ways of implementing it threatened important Black institutions as they were and would be in the short run. Many Black teachers did indeed lose their jobs, for example. And, though Black schools persisted because Brown, to the extent that it promised real integration, failed to deliver on that promise, such schools became ideologically vulnerable. Within an envisioned world of integrated schools, there was indeed something wrong with Black schools, particularly Black schools as such.

Hurston and Thomas were wrong, though, in taking Black culture and institutions as fixed. For that reason, they were wrong in seeing transformation as destruction. Like all cultures and institutions, Black culture and institutions as of 1954 were always subject to destabilization and change resulting from developments “external” to them—the scare quotes indicating that nothing is truly external to a culture or its institutions. To take an obvious example, the Cold War changed Black culture and institutions as the U.S. government came to understand that it could gain international credibility by promoting and subsidizing Black artists and musicians—thereby elevating their place within the U.S. Black community.²⁵ The influence of the Black blues tradition and rock ’n’ roll on each other did the same. Like almost all thoughtful conservatives, Hurston and Thomas were nervous about cultural transformation; unlike the most thoughtful of them, they failed to distinguish between destruction and change.

One line of response might attempt to single out change induced by willful interventions, especially legal interventions, as a particularly problematic source of change. The CIA was wrong, one might think, to sponsor Black musicians, whereas Elvis Presley and Fats Domino were not wrong in appropriating cultural forms from each other’s communities. That example, though, shows how problematic the suggested line is: why was Presley not as willful as the CIA?

And, more generally, we know that law inevitably affects “hearts and minds”; that is, culture and institutions that we do not regularly describe as legal. Had Brown reaffirmed Plessy v. Ferguson, that too would have affected Black culture and institutions, almost certainly in some ways for good in the short run (even feeble enforcement of an equality requirement would have channeled more resources to the Black community) and in some ways for bad (some degree of demoralization until Black activists figured out effective strategies for winning by losing).

Hurston’s and Thomas’s concerns were not frivolous. They did identify an underside to Brown that many then and now ignore.²⁶ They mischaracterized that underside, though, and in doing so they might have failed to understand that, or how, Brown’s successes offset its underside.

Fighting his way upstream, Charles Warren published “The Progressiveness of the United States Supreme Court” in 1913.²⁷ Warren’s Progressive friends pointed to Lochner v. New York as demonstrating that the Supreme Court “st[ood] as an obstacle to ‘social justice’ legislation.²⁸ To the contrary, Warren wrote, “[t]he National Supreme Court, so far from being reactionary, has been steady and consistent in upholding all State legislation of a progressive type.”²⁹ Warren counted 560 cases in which the Court dealt with the constitutionality of such legislation and found the legislation constitutionally valid in all but three.³⁰ Warren’s numbers were correct, but his analysis was not. His argument never worked its way into the public or academic understanding of what the Court was doing in the first decades of the twentieth century.³¹

Note, though, that the Supreme Court’s progressivism lay in its refusal to find “social justice” laws unconstitutional. The unstated assumption was that state legislatures would be progressive if only the Court let them—and that is what the Court was doing. That assumption carried through the early years of the New Deal: the Court was progressive in upholding Roosevelt’s actions with respect to “gold clauses” in contracts and in upholding Minnesota’s mortgage moratorium statute; it was reactionary when it struck down important components of the New Deal agenda.³² The assumption was consistent with what Joseph Fishkin and William Forbath recently described as the “democracy of opportunity” constitutional tradition.³³ “Opportunity” was to be inclusive—in particular, racially inclusive. The reason was that organizing against the economic oligarchy that impaired democracy required that Blacks and whites join together. The “social justice” economic legislation that they would then enact would open the way for social-justice racial legislation as well.

It did not turn out that way, of course. Ascriptive Americanism, as Rogers Smith calls it, impaired the effectiveness of cross-racial organizing.³⁴ What were the Progressives’ heirs to do? Over the course of the 1930s they began to look to the Supreme Court not merely to uphold economic social-justice legislation but to use free-speech principles to strike down laws that interfered with the ability of labor organizers to build their movement³⁵—which, once the Committee (later Congress) of Industrial Organizations came on the scene, was to be a multiracial one. They began to take a similar view of the Supreme Court’s role with respect to racial justice. The justices who decided the free-speech cases drew upon libertarian themes as well as progressive ones; those who decided the racial-justice cases were Progressives and (an overlapping group) Republicans who saw themselves as members of Abraham Lincoln’s party.

All this led to a restatement of the Court’s role in “Footnote 4.” That role came to be understood as combining judicial passivism with respect to economic social justice legislation and some degree of judicial activism with respect to racial social justice legislation. That restatement underwent some conceptually important but politically minor changes over the next decades, but it held up well. Brown was its triumph.

Brown provided Court-centered constitutionalists with their greatest symbol. Whatever the Court’s limitations, they said, Brown showed that the Supreme Court could do something about the central flaw of U.S. constitutionalism as practiced when the political branches were paralyzed.

As time passed, Brown’s symbolic power faded only a bit. Notably it—and the litigation campaign that led up to it—became central to the struggle to constitutionalize LGBTQ+ rights in the face of the same kind of legislative hostility and near paralysis that proponents of desegregation had faced.³⁶ The surrounding constitutional landscape changed substantially, though, in ways that made Brown increasingly problematic as a symbol of what the Court could contribute to the accomplishment of social justice.

The legacy of American Legal Realism, a jurisprudential movement associated with Progressives and liberals, ironically, contributed to that problem. The story is complex, but its main line can be summarized easily: Legal Realists contended that the law was a tool to be used to accomplish whatever those holding power thought socially desirable. It was in that sense politically neutral in its grand scheme though politically driven in every detail.

The law’s political neutrality, in that sense, made it a tool that could be used by anyone no matter what their political leanings were. In particular, the social-justice vision of the New Deal’s Progressives and their heirs was no longer inextricably bound up with “the Constitution.” Put another way, Brown was just one of many possible partisan visions of what the Constitution meant.

The rest of the story is simple. The New Deal-Great Society political order disappeared from the scene as its ideological and institutional commitments became increasingly difficult to sustain in the face of the guns-and-butter dilemma presented by the Vietnam War and the United States’ imperial role and in the face of the political opportunities persistent American racism opened up for conservatives. Conservative Republicans gained control of the ideological high ground with their critique of liberalism, a critique they implemented during the Reagan presidency and thereafter, and, importantly, through weakening and eventually displacing the liberal coloration of the federal judiciary.

In the new era, then, celebrating Brown as the symbol of what the Supreme Court could do meant celebrating the Court’s power to advance a conservative political agenda. Liberals could eke out occasional narrow victories in race-related cases, but the last school desegregation case decided in favor of Black litigants came in the early 1990s. Here the underside of Brown was the myth that the Court was inherently or (somehow) permanently on the side of social justice as liberals understood it.

By the 2020s, if not earlier, many liberals and progressives had come to see that they admired a mythical Court that no longer existed (if it ever had). Brown and the liberal decisions of the Warren Court, many came to see, were aberrations in the record of Supreme Court decisions that over the entire course of U.S. history were on balance quite conservative even, or especially, on issues of racial justice.³⁷

What, though, could replace the myth of a liberal Court? Here are a few possibilities. They are not entirely satisfactory either one by one or taken as a whole.

(1) Take what you can get. Brown (and Obergefell and the constitutionalization of women’s rights) show that liberals can sometimes get something from the Court, and something is better than nothing. This analysis focuses, so to speak, only on the line starting at zero and going up without paying attention to what is happening on the negative side of the line. Perhaps the losses liberals incur on other issues more than offset the gains they can occasionally win. So, for example, liberals take what they can get in cases involving serious injustices against individual Black criminal defendants, but at the cost of having a Court that substantially undermines efforts by liberal cities to protect their citizenry against gun violence. Against that on-net-liberals-are-losing-more-than-they-ever-win argument is the proposition that we really cannot net out wins and losses in this way. Today’s liberal political vehicle is a coalition of groups. Perhaps one or more groups within that coalition actually do benefit on net from the take-what-you-can-get strategy.³⁸ If so, division within the liberal coalition will make it quite difficult to replace completely the myth of a liberal Court.

(2) Brown was a happy accident, the product of a confluence of contingencies favorable to liberals that is unlikely to recur. We might call this a “take what you got” account: accept Brown’s outcome but do not mythologize it into some systematic theory of how the Supreme Court can be a liberal ally more generally. This account fits comfortably with the story of a Court that historically has been allied with political conservatives.

The happy-accident story might lead liberals to favor conceptual and institutional changes that would sharply limit the Court’s role in constitutional politics. The conceptual move would be to return to a Thayer-ian understanding of the Court’s proper role: invalidating only statutes that fall outside a generously defined range of reasonableness. Such an understanding would have stood in the way of Brown (and Obergefell and other scattered examples of happy accidents). Though future accidents are inevitable, liberals cannot rely on the prospect that they will be happy ones. The accidents might instead be worse than can be expected from the routine decisions of a conservative Supreme Court.

Institutional moves are more difficult to identify. They might involve changes in liberal nomination politics, though at least today the politics of liberal nominations has almost nothing to do with identifying constitutional projects going forward. I have suggested the possibility of a congressional joint resolution asserting Congress’s view that the Court should (or may) find a statute unconstitutional only if it is not defensible under any reasonable interpretation of the Constitution.³⁹

(3) The Court responds to external pressures, so keep the pressure on. Here there is an implicit systematic account of what the Court responds to. As told by both liberals and conservatives, the account relies on a confluence of social movement pressures with elite interests.⁴⁰ A realistic account of politics and institutions in the real world replaces the myth of a liberal Court.

The danger here is that the myth of a liberal Court will be replaced by a different myth, that of the inevitable success of liberal social movements (and the inevitable failure of conservative ones). Such a myth—call it the myth of progressive politics—ignores the role that elite interests play in structuring and limiting the degree of progressiveness in outcomes in the real world of constitutional politics.⁴¹

At least within the legal academy, the myth of the liberal Court remains strong.⁴² Nothing else, I believe, can account for liberal anxiety about “delegitimizing the Supreme Court,” which often expressly invokes Brown (without considering the happy-accident possibility). All three strategies I have described can do something to weaken that myth’s hold, although I personally am not optimistic.⁴³

Seventy years can be a long time in a nation’s constitutional history. Seventy years after the U.S. Constitution’s adoption, the nation was on the brink of fracture. A few years later Abraham Lincoln invoked temporality in describing the United States as “conceived in liberty, and dedicated to the proposition that all men are created equal.” For Lincoln, over seventy years after the founding, what mattered were not the details of the nation’s constitutional design but rather the ideology that animated it.

As my earlier mention of Rogers Smith’s account of the nation’s civic ideals indicates, though, Lincoln’s description of that ideology was partial. The nation’s ideology had its sunny side and its underside. So too with Brown. To understand Brown we must see it in full—its contributions to racial justice and its undersides. Perhaps Brown’s immediate adverse effects on Black cultural institutions have dissipated—or have been transformed—in the past seventy years. Its support for the myth of a liberal Court remains strong, though. I believe that confronting that myth while acknowledging the importance of what Brown did remains an important task for today’s progressive legal thinkers.