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David Kusnet to Mark Gearan; RE: Reinventing speechwriting (14
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�April 27, 1994
To:
From:
Subject:
Don Baer
Gene Sperling
Brown Anniversary Speech
Here is a quick outline and notes on the idea we were discussion today on a possible
40th anniversary of Brown speech.
l.Intro:
There has been much discussion over the years on Brown in terms of what it
has meant in a practical sense for desegregation and the role of the courts, and
those discussions will continue for some time to come.
What I want to talk about is what this has meant in terms of our values, our
national values and our personal commitment to fairness and justice.
Values that have strong resonance in our public and private lives. Free speech
is not just a law: it is belief in ideas, in freedom, in the power of ideas over
arbitrary power.
2. NationaVPublic Values:
Whatever the effect of Brown on specific cases, it said much about our national
values. It showed that we as a nation are always moving closer -- whatever
the historical diversions -- to living up to the ideals of the Founding Fathers
who believed in the dignity of all people: that all of us were created equal.
With a stroke of the pen, a unanimous Court made clear to the nation that our
constitutional values were on the side of those who wanted to move our nation
closer to the ideal of fairness, where people are treated by who they are and
not by the color of their skin, the sound of their last name or the birthplace of
their ancestors.
• Notes about the effect of Brown as shaping the conscience of the nation.
The Power of the court as a conscience. Great quote from Frederick Douglas,
about power of law can serve as 11 noble moral standard... banner on the outer
wall of American liberty. 11
•Anecdotes from the President about growing up in the South: things he
remembers.
• Paying Tribute to Marshall: Quotes from Thurgood Marshall -- noting his
fairly recent death, and his role as the chief litigator of Brown and the voice
for racial progress on the Supreme Court. Also mention, quote from Warren, a
�"
,r'..
....... ..
Republican Governor, and tell story of how Warren went out for night during
Brown considerations, and came back to find driver sleeping in car, since no
hotel would house him because of his skin color.
3. Private Values:
Some argue that discrimination can only be taken care of through laws: others
argue that it is always private. It is a false debate. We must make progress on
both.
Privately we have to be honest with ourselves. We have to admit that this is an
area, where none of us is perfect. All of us, no matter who we are, can fall
prey to stereotypes, conditioning -- even unconscious prejudice.
These things are human. But this does not mean that we can accept them or
tolerate such feelings within ourselves or others.
We must always be fighting on the personal front. We cannot tell ourselves
that this is just the way it is, or that it is okay for us to be fair to racial
minorities, but to hate people because of sexual orientation.
It is understandable and human to feel such ways, but it is not understandable
to accept them within ourselves or others. Like our nation, we as individuals
must always be striving to find our better angels, to move closer to our ideals.
For we can not forget the pain that we cause others when we deny them the
dignity that comes from being treated for who they are, and not from the color
of their skin.
Tribute to Ellision: That means all of us understanding, that there is no excuse
for not treating people as individuals. Recently we lost a great American
author, Ralph Ellision, who is most famous for his book the Invisible Man.
Yet, what made this book a classic was that it spoke not just to the AfricanAmerican experience, but to the anguish that any individual feels when they are
not seen for the individual that they are, but instead are not seen -- are
invisible -- because their viewers can only see the stereotype, the skin color,
the ethnic features.
4. Conclusion:
Brown, and the lives and words of Marshall and Ellison give us instruction and
guidance in moving toward our progress as a nation and as people-- citizens.
But on both counts, it is a never-ending journey toward personal and national
renewal and recommitment to our ideals.
�..
I
J
A Journal
for the
Liberal
Imagination
'i
Winter 1991
Number4
The Cultural Enemy Within
9
Contributors
5
Paul Starr
The Reaganites and the
Renegade
12
Letters
19
RobertS. Mcintyre
STA
What
CoNGRESS WITHOUT coHABITATION
The Democrats' Morning-After
Althoug
lives of
reap bro
The budget rebellion in October seemingly ended Congress's long night of unholy cohabitation with the Reagan and Bush administrations. But can the
Democrats really get out of bed?
Robert Kuttner
25
Sheila
s
Why
Child ca
dilemma
ECONOMIC IDENTITY CRISIS
Victorj
THEY ARE NOT us
Why American Ownership Still Matters
THE
You don't have to be a Japan-basher to want American-based firms to thrive. As
long as separate nation-states do business by different rules, it isn't One World
yet.
Laura D'Andrea Tyson
Children
vaccinesj
37
Phyllis)
Rejoinder: Who Do We Think They Are?
Robert B. Reich
49
Does~
I
An exclul
courts inl
THE
NEW INDUSTRIAL CULTURE
Journeys Toward Collaboration
The competitiveness of the U.S. economy depends on changes inside firms, particularly their willingness to take risks in reshaping four key relationships. Competitiveness, it turns out, depends on new kinds of collaboration.
Bennett Harrison and Maryellen R. Kelley
54
Up Fro
I
Somema
watchoui
1
�I
.
,
5
19
LITTLE KIDS, BIG PROBLEMS
62
STARTING RIGHT
What We Owe Children Under Three
Although America has begun to make significant commitments to improve the
lives of children, we still have done little for the under-threes. Other countries
reap broad social benefits from coherent family policies. Why can't we?
25
63
Sheila B. Kamennan
SMALL CHILDREN, SMALL PAY
Why Child Care Pays So Little
Child care is expensive, yet those who provide it are poorly paid. Solving the
dilemma may call for a Solomonic choice.
74
Victor R. Fuchs and Mary Coleman
THE ELUSIVE PROMISE OF VACCINES
Children are not getting vaccines now available, much less a new generation of
vaccines that the biomedical revolution has put within our ret~ch.
37
49
80
Phyllis Freeman and Anthony Robbins
Does the Supreme Court Matter?
Is Violent Crime Increasing?
An exchange on the significance of the
courts in the achievement of civil rights.
News reports of an all-time record crime
wave have set off a panic that America is
out of control. What are the retll facts?
Gene B. Sperling
Cass R. Sunstein
91
95
Christopher Jencks
98
54
Up From Humanism
Some may feel that"stronger," "deeper" forms of environmentalism must be better. But
watch out. Our great ecological awakening has led to some deeply anti-human philosophies.
--------
- - - · - - - - - - - - - - - - - - - - - - - -
�WINTER
Children at the
ident Bush was
e idea. In fact,
ch of combindiseases in a
edule would
unized inthiopia.
Nations and
to ambitious
olio by the year
tal tetanus by
easles deaths;
al toll of two
ventable dis-
000.
et systems are
t success, the
about market
enewsetof
n that public
central role in
t vaccine rection, and dishly cost-effecw investment.
hildren's Vac1 billion over
diture would
lobal basis. In
ve a hard task
the benefits of
d improved
conspire in
· · ed by atap between
ce on inded the reluc-
Does the Supreme Court
Matter?
·
Gene B. Sperling
ow important is the Supreme
Court to the advancement of
individual rights? Very important, many would contend, when the
people whose rights are being advanced
lack political power. Our constitutional
democracy rests, after all, on the notion
that people disdained and disfavored by
the majority can still find justice before
an independent Supreme Court.
Some critics and historians, however,
have always downplayed the Court's role.
They argue that progress apparently flowing from Court decisions would have come
eventually, or even sooner, through the
political process, and that reform might
been more effective or better crafted if the
elected branches had brought it about.
Much of this criticism has come from
those on the right who condemn the
Supreme Court protections of individual
rights as "judicial activism." In a different
vein, some on the left see the Court as an
elitist institution and view grass-roots
politics as the true sc>urce of social progress.
In "Constitutional Politics and a Conservative Court" (TAP, Spring 1990), constitutional scholar Cass Sunstein offers a new
rationale for downplaying the Supreme
Court's role in advancing individual rights:
optimism. Although the Court is currently
narrowing the scope of individual rights,
Sunstein counsels supporters of civil rights
against despair. History teaches us, in
Sunstein's view, that the Supreme Court's
role is not only unnecessary but often
counterproductive because it "stimulates
the tide of reaction that swamps the [positive] effect of the rulings."
In support of his thesis, Sunstein points
H
to Brown v. Board of Education, the landmark
1954 school desegregation case in which the
Court declared that laws relegating AfricanAmericans to second-class citizenship violated the equal protection clause of the
Fourteenth Amenc4nent. While dearly an
admirer of the Brown decision, Sunstein
contends that it had little practical impact,
because a decade later, in 1964, only 2 percent of Southern schools were integrated; he
credits the progress we have made solely to
the political action and organizing that led
to the Civil Rights Act of 1964 and the
Voting Rights Act of 1965. "Martin Luther
King," Sunstein writes, "may well have
been a more important source of constitutional change than all of the Warren Court's
race decisions."
et to ask whether the Supreme
Court or Martin Luther King had a
greater impact on civil rights is to
ask the wrong question. The Court's
decisions and the civil rights movement
energized each other. While Brown v. Board
of Education would have led to little progress
without a mobilized popular movement,
the successes of that movement equally
depended on the Court.
Sunstein misses this critical point by
focusing only on the Court's shortcomings
in providing an immediately effective judi.cial remedy to school segregation. He ignores the tremendous power of the Brown
Court's declaration of rights in creating a
political and moral climate that enabled the
civil rights movement to flourish. For while
the judicial remedy of school segregation in
the decade after Brown was nearly a total
failure, the rights and constitutional values
Y
�WINTER
92 THE AMERICAN PROSPECT
proclaimed in Brown provided the basis for
crucial political victories, as the Supreme
Court struck down segregation in public
facilities, transportation, and courtrooms.
Two years after Brown II, Congress passed
the 1957 Civil Rights Act, creating the Civil
Rights Division in the Justice Department,
and laying the administrative groundwork
. for future executive enforcement In Simple
Justice, Richard Kluger noted that "the mass
movemenf sparked by Brown was unmistakably thriving as soon as six months after
the Court handed down the implementation decree."
The most poignant illustration of the interplay between the right declared in Brown
and the success of political action is the
event that many, including King himself,
considered the critical moment in the nonviolent, civil rights movement: the Montgomery bus boycott.
In his first address to the Montgomery
Improvement Association, only days after
Rosa Parks's arrest, King inspired the
potential boycotters with the moral force of
Brown: '1f we are wrong, the Supreme
Court is wrong. If we are wronSt the Constitution of the United States is wrong."
Eleven months later, on the very day that
a distraught King thought the historic
citizen boycott was about to be broken by
obstructionist maneuvers, the Supreme
Court, relying on Brown, declared Montgomery's bus segregation policy unconstitutional. ''The darkest hour of our struggle," wrote King, "had indeed proved to be
the finest hour of victory." The Montgomery bus boycott thus presaged the truth
of King's later words: ''Direct action is not
a substitute for work in the courts and the
halls of government ....Indeed, direct action
and legal action complement one another;
when skillfully employed, each becomes
more effective."
Although massive resistance could
prevent the Supreme Court from turning its
words into remedies, the Court's interpretation of constitutional rights forced
many Americans to confront the discrepancy between our constitutional ideals and
racist social practices. The Court's ruling
against racial exclusion compelled white
America to acknowledge the hypocrisy of
this rights-reality gap and created a positive
tension pressuring other institutions to
respond. King played on this tension like a
.maestro. like other civil rights leaders, he
did not try to convince Americans to
change their values. Rather, he used the
promise of Brown as he did the promise of
equality in the Declaration of Independence to stir dissonance in America,
showing white Americans that only by
changing their treatment of blacks could
they stay true to their country's ideals.
Thus, it is pointless to speculate about
the relative importance of Brown and the
legislative victories of 1964 and 1965, because Brown itself was an integral part ofthe
prelude to those legislative achievements.
Judge Jay Harvey Wilkinson wrote in From
Brown to Bakke that "Brown was the catalyst
that...culminated in the two major civil
rights acts." Without Brown, the very
protest against segregation would have
seemed to many to be battle between
law-breaking protesters and law-abiding
segregationists. With the stroke of a pen, the
Supreme Court shifted the moral weight of
the Constitution-and of law generallyfrom those who sought to preserve the caste
system to those who sought to dismantle it.
a
e can also see the Supreme
Court's influence in the arrested development of rights
that have not advanced, and have even
been set back. Consider the litigation in the
1970s over racial segregation in Northern
inner cities. Minority plaintiffs claimed that
racial ghettoization in Northern cities
stemmed from an interlocking network of
discriminatory governmental and private
actions that were as unconstitutional as the
Jim Crow laws that had required segregation in much of the South. The Court chose
not even to give these claims a full hearing.
Many would contend the Court was correct to resist such claims because the
judiciary lacked the power to remedy per-
W
1991
vasive segregi:ttiCI
Court did not,
ledge its
developed a
that made it
plaintiffs to
patterns of notlSII1
employment
constitutional
Brown triggered
Court's decisions
of constitutional
segregation.
Had the
the COI1tStitutic>~
segregation, it at
the majority to
a byproduct of
Today's civil
would have
Court's declaratio1
and wrongs, just a:
rights-reality gap E
lowing Brown.
The Supreme C
v. Hardwick (whel'
statute that defines
between consentil
another example o
inaction has hurt tl
an unusual adr
Powell, who provi
for the Court's rna
that his vote was a
sought to play dol'
vote on the ground
jail.
Yet, the Suprem
bigotry toward he
day in the public«
lions of Americans
fifth vote, any <
homosexual empl<
defended in state
sodomy'' laws as
crimination, but fn
activities.Furthern
liance for Justice, n
ing violations of <
denied on the basif
�WINTER
e Court's ruling
compelled white
the hypocrisy of
created a positive
r institutions to
this tension like a
rights leaders, he
e Americans to
er, he used the
·d the promise of
ation of lndece in America,
that only by
of blacks could
try's ideals.
speculate about
Brown and the
and 1965, betegral part of the
achievements.
n wrote in From
was the catalyst
o major civil
, the very
would have
attle between
d law-abiding
ke of a pen, the
oral weight of
w generallyethecaste
o dismantle it.
the Supreme
e in the arent of rights
d have even
'gation in the
in Northern
claimed that
1991
DOES THE SUPREME COURT MATTER?
vasive segregation single-handedly. The
Court did not, however, simply acknowledge its limited remedial power; it
developed a series of evidentiary hurdles
that made it nearly impossible for minority
plaintiffs to demonstrate how interlocking
patterns of housing, school, real estate, and
employment discrimination produced unconstitutional racial segregation. While
Brown triggered political progress, the
Court's decisions in the 1970s put a stamp
of constitutional legitimacy on inner-city
segregation.
Had the Court of the 1970s recognized
the constitutional infirmity of Northern
segregation, it at least would have forced
the majority to see inner-city segregation as
a byproduct of governmental policies.
Today' s civil rights and political leaders
would have been empowered by the
Court's declaration of constitutional rights
and wrongs, just as the tension created by a
rights-reality gap empowered Dr. King following Brown.
The Supreme Court's decision in Bowers
v. Hardwick (where it approved a Georgia
statute that defines private homosexual acts
between consenting adults as a crime) is
another example of how the Court's recent
inaction has hurt the cause of civil rights. In
an unusual admission, Justice Lewis
Powell, who provided the crucial fifth vote
for the Court's majority, recently admitted
that his vote was a mistake. But Powell also
sought to play down the significance of his
vote on the grounds that no one was sent to
jail.
Yet, the Supreme Court's legitimation of
bigotry toward homosexuals is felt every
day in the public and private lives of millions of Americans. Due to Justice Powell's
fifth vote, any act of bigotry toward
homosexual employees or tenants may be
defended in states with draconian "antisodomy'' laws as arising not from discrimination, but from criminal homosexual
activities. Furthermore, according to the Alliance for Justice, more than 100 cases alleging violations of civil liberties have been
denied on the basis of Hardwick.
93
Worst of all, by putting its constitutional
stamp of approval on laws targeting
homosexuals, the Supreme Court told
Americans that they need not question
whether their private prejudice or public
opposition to gay rights laws· could be
squared with their respect for the Constitution and the ideals of individual liberty. The
Court's decision in Bowers v. Hardwick told
gay Americans who had suffered the physical and emotional scars of discrimination,
that the pain inflicted upon them did not
implicate our constitutional values.
unstein takes his argument one further step. He says that particularly
strong Supreme Court opinions
protecting individual rights can have a
long-term negative political impact. Here
his example is the aftermath of Roe v. Wade.
In his view-which I will call the ''If Not For
Roe" myth-pro-choice forces would actually have emerged stronger in the longrun if the Court had not taken the initiative
in legalizing abortion in Roe .
Sunstein makes three arguments as to
why Roe may be further proof of the "illusions of court-Qrdered progress." First, he
points out that while Roe increased the
availability and safety of abortion, it did not
increase the number of abortions. Yet, this
statistic only highlights the importance of
the right to choose abortion, not Roe's lack
of efficacy. If women had roughly the same
number of abortions when abortion was
illegal as they did after Roe, that only shows
how serious a decision abortion has always
been for women, and that, contrary to antiabortion advocates, Roe did not lead to indiscriminate abortions for "convenience."
The goal of the pro-choice movement has
.never been to increase abortions, but rather
to allow women who choose to have abortions to do so in a safe and legal way. True,
after Roe abortion remained, and still
remains, inaccessible in many rural areas.
But Roe gave Planned Parenthood the
ability to organize services on a national
level and thereby gave a major boost to
nationwide accessibility.
S
�94 THE AMERICAN PROSPECT
Sunstein argues that Roe may have
"prevented the achievement of political
compromises" and that "it helped shift the
political momentum to the anti-abortion
movement." What political compromises?
As Walter Dellinger explained so powerfully in these pages ("Should We Compromise
· on Abortion?" TAP, Summer 1990), every
so-called compromise would deny access
to many of the poorest and' most vulnerable
of women. The most sensible abortion compromise yet is the one in Roe itseH, which
millions of Americans find most reasonable: As a fetus becomes viable and capable of independent life, the state should
have increased power to ban abortions.
Finally, Sunstein' s third, and key, point is
the notion that pro-choice forces were on
their way to nationwide, political victory
when Roe came down, simultaneously
energizing the pro-life movement and sapping the strength of pro-choice forces. Roe
did spur tremendous reaction on the antiabortion side (especially from the Catholic
Church), but a close look at the relevant
history refutes the notion that Roe hurt
abortion rights in the long run.
Although a handful of states had liberalized their criminal laws regarding abortion
by the time the Court decided Roe, New
York was the only state where a widespread
political movement had led to legalized
abortion. And legalization had passed in
1970 only by a one-vote margin acheived
when a legislator switched his vote at the
last minute. Yet, even in New York, the
legislature voted to repeal the law only two
years later in 1972, the year before Roe. Only
a veto by Governor Nelson Rockefeller
saved the right to choose abortion. This was
the shaky state of the emerging pro-choice
movement prior to Roe.
Many, including Sunstein, seek to buffer
their ''HNot For Roe'' arguments by arguing
that, since the pro-choice movement has
been vigorous since Webster, it could have
been equally successful politically without
the help of the Supreme Court.
Yet, like Sunstein' s analysis of Brown, or
Justice Powell's "no harm done" comments
WINTER
about Hardwick, the argument that prochoice political power would have been the
same without Roe ignores the transfoimative effect of Roe itseH on the personal and
political perceptions of millions of Amer. icans. Roe spurred the pro-choice movement. Prior to Roe, access to abortion was
limited and stigmatized. The barriers particularly hurt the least powerful women:
those who were poor, young, in abusive
· relationships, or in danger of jeopardizing
their economic or social well-being if they
had to go through with an unwanted pregnancy. Prior to Roe Americans did not think
of the decision to bear or not to bear a child
as a matter of constitutionally protected
privacy.
T
hrough Roe, the Court said to
women, that the decisions affecting your liberty in the most
profound ways are relevant to the "liberty''
specified in the Fourteenth Amendment. By
defining women's privacy as a liberty interest deserving constitutional protection, the
Court read women's liberty into the Constitution and provided women with both
the platform and legitimacy to argue that
their concerns were a proper matter for
public and political action. Thus, rather
than impede the pro-choice movement, Roe
helped to empower millions of women to
see their private decisions, as Laurence
Tribe writes in his recent book The Clash of
Absolutes, not as a "dirty secret," but as a
"right'' worth fighting for.
Even if this political consciousness could
have been created without Roe, what would
have happened politically without Roe?
Since Roe, women in every state have had
substantial protection of the right to choose.
How would a world without Roe have
made things better? One of the major
defeats pro-choice advocates have suffered
since Roe involves Medicaid funding. It
seems highly unlikely there would be
Medicaid funds for abortions if Roe had
never been decided. In fact, some of the
states that do pay for Medicaid abortions do
so on the grounds that the right to choose
1991
abortion is a pro
poor women caru
the most optim
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�WINTER
ent that prod have been the
the transfonnahe personal and
· ·ons of Amerhoice moveto abortion was
e barriers parwerful women:
g, in abusive
of jeopardizing
ll-being if they
wanted pregs did not think
t to bear a child
ally protected
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1
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; if Roe had
;orne of the
1bortions do
nt to choose
1991
DOES THE SUPREME COURT MATTER?
abortion is a protected constitutional right
poor women cannot be denied. Even under
the most Optimistic '1f Not For Roe"
scenario, at least ten to fifteen states would
continue to ban abortion, and many others
would have likely imposed restrictions that
hurt the most vulnerable women.
Sunstein's position might have appeared more tenable ifa pro-choice majority
had failed to awaken after Webster because
supporters of the right to abortion had become so sleepily reliant on the courts. But
the powerful pro-choice mobilization after
Webster shows that the courts did not undermine the pro-choice movement. In fact,
Roe had a profoundly positive effect on the
long-term political support for the right to
choose.
should emphasize that I am not trying
to replace Sunstein' s optimism (we
can still make progress on civil rights
even with a bad Supreme Court) with my
own pessimism (we can make no progress
on civil rights with a bad Supreme Court).
But we mislead ourselves if we do not fully
appreciate how and why the Supreme
Court has been essential to advancing civil
rights. If the Supreme Court has been vital
to political progress for disfavored groups
by forcing institutions and individuals to
reconsider discriminatory social habits,
what will be the source of that moral leadership in the future? Recognizing the deep
void now left by today' s conservative Court
tells us what we must demand of othersthe President, powerful members of Congress, state supreme courts, governors, and
civic leaders. Several state supreme courts
have, for example, almost singlehandedly
kept school financing on the national agenda through their interpretations of state
constitutions.
I should also stress that I am not advocating that the Supreme Court sh~uld d~~re
rights for the purpose ofprom~~gpo~tical
action. The Supreme Court's JOb IS to mterpret the Constitution-nothing more and
nothing less. But neither the Court nor those
who observe it should feel that a proper
I
95
constitutional decision on behalf of individual rights is worthless or meaningless
simply becausetheSupremeCourt does not
have the weapons to turn its words into
instant reality.
One way or another, what the Court says
and does has a broad effect on the values
and long-term direction of our society. The
Supreme Court has a special power to rise
above the -PACs, .soundbites, and meanspirited stereotypes and declare what
America would have to be to adhere to the
highest ideals expressed in our Constitution. Sometimes, through a multitude of
pressures, tensions, and political and
private acts, noble words spoken by the
Court can move us toward a more free and
just society.
Cass R. Sunstein responds:
hat is the appropriate role of
the Supreme Court in
producing social reform?
For those interested in such reform-in
areas including environmental controls,
the social security system, civil rights,
and criminal justice-how much
reliance should be placed on the
judiciary? At least in part, these are empirical questions rather than ones of
value and policy. We need to know
whether an aggressive judicial role actually accomplishes its intended purposes; whether it might mobilize opposition or demobilize support; whether it has harmful consequences for
democracy and the practice of c~tizen
ship. These questions depend on the
facts, not only on our aspirations.
For too long, those who study the
Supreme Court have let their aspirations
cloud their approach to the facts. This problem is especially serious for those who
believe that the role for the Court charted
out in Brown and Roe deserves to be
repeated frequently in the next generation.
Let there be, they are saying, one, two, three,
a thousand Browns.
W
�1991
96 THE AMERICAN PROSPECT
Gene Sperling's thoughtful comment
contains many empirical claims about the
real-world effects of Supreme Court decisions. He says, for example, that the successes of the civil rights movement depended
on Brcrwn; that "the Brown Court's declaration of rights" had "tremendous power" in ·
creating the political and moral climate for
that movement; that Brown "compelled
white Americans to acknowledge the
hypocriSy of' the "rights-reality gap and
created a positive tension pressuring other
institutions to respond"; that Brown
"provided the basis for critical political victories"; that Bowers v. Hardwick significantly
contributed to anti-homosexual feelings;
that Roe had a "transformative effect'' on
the "personal and political perceptions of
millions of Americans"; indeed, that Roe
"spurred the pro-choice movement."
These claims, and Sperling's others
about the consequences of Supreme Court
decisions, may actually be true. But I do not
know whether they are. I wonder what
makes Sperling so confident about them.
e might begin with Brown. The
only extended study of Sper.
ling's claims strongly suggests
that they are wrong. I cannot do justice to
the detailed analysis of Gerald Rosenberg's
forthcoming The Hollcrw Hope, but I can explain how Rosenberg casts doubt on the
view that Brown paved the way for the civil
rights movement. Above all, Rosenberg
reveals that Sperling's claims that Brown
indirectly caused and helped legitimate the
civil rights movement, and that it exerted
moral pressure and produced attitudinal
changes on the part of whites, have little or
no empirical support.
Rosenberg reveals, among other things,
that the public civil rights pronouncements
of Presidents Eisenhower, Kennedy, and
Johnson did not refer to court decisions at
all; that the Montgomery bus boycott was
not attributable in any way to Brcrwn, and
indeed that black protests, there and elsewhere, were not directly or indirectly
spurred by Brcrwn; that there was no in-
W
WINTER
crease in media coverage of civil rights issues in the years following Brown; that there
is no serious evidence that Brown inspired
or even especially influenced Martin
Luther King, Jr. and other civil rights
leaders; that the number of civil rights bills
introduced into Congress actually dropped
in the years immediately following Brown;
that Southern disapproval of desegregation
immediately after Brown, and seven years
after Brown, was about the same, thus
weakening the suggestion that Brown exerted moral pressure on white Americans (a
suggestion that incidentally cannot find
support in opinion surveys or any other
measures of white opinion); and that there
is little evidence that Brcrwn contributed to
the civil rights acts of the 1960s--especially
in view of the fact that there were few references to the decision in the many thousands
of pages of congressional debate.
It is relevant here that Martin Luther
King himself argued, both by his example
and in public speeches, against excessive
reliance on the judiciary. According to King,
"[W]e want to avoid court cases in this
integration struggle," and an emphasis on
litigation was "hampering progress to this
day." For King, blacks "must not get involved in legalism," since in litigation "the
ordinary Negro was involved [only] as a
passive spectator." For King, Montgomery
demonstrated that blacks themselves could
act to advance civil rights, "rather than relying exclusively on lawyers and litigation to
win incremental legal gains."
All this does not mean that Sperling is
necessarily wrong. It is exceedingly difficult
to ascertain what the world would look like
if a seemingly important event-like
Brown, or Roe, or World War ll-had not
happened. But the available evidence does
suggest that Sperling's claims about the influence of the Brown Court may be articles
of faith.
The same, I think, is true for his claims
about Roe and Hardwick. Of course, Roe increased women's access to safe abortions,
and that was extremely important; and the
Hardwick Court's decision to allow sodomy
prosecutions w
been taken to
charge gay p
even possible
consciousness
tion right and
choice movem
Hardwick, I do
anything mu
Many of Sper ·
quite speculati
What does
consequences o
equality in th
biguous. That
create the Mo
tile to the wo
Equal Rights
potential sup
andevendou
a transformativ
ceived legitima
tion, and that
phobia. Indeed
well be true. In
consequence of
decrease and to
abortion. And
followed Hard
role in spurring
ing Americans
change di ·
tices. Sperling'
legitimating p
decisions seem
ed in evidence.
Myownc ·
of Supreme Co
original essay,
doubt that Sup
have important
the Court has
changes into
believe that an
marginal or irre
stitutions. I do
and Hardwick h
evencertaintha
consequences o
suggest only tha
�'
.
1991
DOES THE SUPREME COURT MAITER?
97
WINTER
of civil rights isBrown; that there
t Brown inspired
uenced Martin
her civil rights
f civil rights bills
ctually dropped
allowing Brown;
of desegregation
and seven years
the same, thus
that Brown ex.te Americans (a
y cannot find
ys or any other
); and that there
n contributed to
960s--especially
were few refermany thousands
ebate.
ft Martin Luther
~ by his example
:tgainst excessive
.ccording to King,
urt cases in this
l an emphasis on
~ progress to this
must not get inin litigation "the
>lved [only] as a
ng, Montgomery
hemselves could
"rather than rely; and litigation to
ts."
t that Sperling is
eedingly difficult
i would look like
ant event-like
War TI-had not
•le evidence does
ims about the int may be articles
lle for his claims
)f course, Roe inD safe abortions,
tportant; and the
to allow sodomy
prosecutions was important insofar as it has
been taken to permit state officials to discharge gay people from employment. It is
even possible that Roe created a political
consciousness for women seeking an abortion right and that it helped fuel the prochoice movement. But about both Roe and
Hardwick, I do not think that one can say
anything much more confident than this.
Many of Sperling's claims here strike me as
quite speculative.
What does seem clear is that the overall
consequences of the Roe decision for sexual
equality in the United States are ambiguous. That decision did, after all, help
create the Moral Majority, elect officials hostile to the women's movement, defeat the
Equal Rights Amendment, and demobilize
potential support. What seems unproved
and even doubtful is the view that Roe had
a transformative effect in increasing the perceived legitimacy of the practice of abortion, and that Hardwick legitimated homophobia. Indeed, the opposite claims may
well be true. In many places, the ultimate
consequence of Roe may well have been to
decrease and to stigmatize the legitimacy of
abortion. And the large public outcry that
followed Hardwick may have played some
role in spurring gay rights groups and forcing Americans to confront and perhaps to
change discriminatory beliefs and practices. Sperling's suggestions about the
legitimating power of Supreme Court
decisions seem to me insufficiently grounded in evidence.
My own claims about the consequences
of Supreme Court decisions, here and in my
original essay, are quite modest. I do not
doubt that Supreme Court decisions often
have important effects. I do not deny that
the Court has often introduced valuable
changes into American ·soci~ty.. I. do ~ot
believe that an independent JUdi~ry ~ a
marginal or irrelevant part of Amencan mstitutions. I do not believe that Brown, Roe,
and Hardwick have not mattered· I am not
even certain that Sperling's claims about the
consequences of these decisions are false. I
suggest only that because of its institutional
position, the Court is considerably less effective than is usually thought. Whether a
Supreme Court decision will be effective in
producing social reform depends on a wide
range of complex factors difficult to assess,
especially in advance. Those reformers who
face up to the often-surprising facts may
want, therefore, to hesitate before using the
Court as their institution of choice.
My strong hunch is that Sperling's views
may stem partly from the following strategic concern. Those who question the efficacy of Supreme Court decisions may be
helping to legitimate the Supreme Court's
narrow, cautious view of civil rights. That
strategic concern will seem especially pressing to Americans who,reared on the Warren
Court, see the judiciary as the best hope for
rights and politically disfavored groups.
But that strategic concern should not deflect
us from a patient, dispassionate, and cleareyed view of facts. H the case for effective
social reform through the judiciary is weak,
surely that is an important thing to know.
n any event, the era of the Warren
Court has long been over. While a
modern-day successor to that Court
might have been able to accomplish considerable good, current reformers clearly cannot rely on the federal judiciary for social
change in the interest of the causes Sperling
appears to favor.
More fundamentally, people interested
in social reform, understood broadly, ought
to be interested in the process of government as much as the outcome. For all the
advances that it spurred, the Warren Court
period was a historical aberration, and it
should hardly be thought to represent the
inevitable or even the best state of constitutional democracy in America. One of the
most important lessons of the last generation is that the substitution of adjudicative
for democratic processes is often an ambiguous good from the standpoint of both
process and result. The next generation
might do well to attend more closely to
Martin Luther King's words, and example,
on these questions.
I
�'·
Contents
Articles
Alexander Bickel's Philosophy of Prudence
Anthony T. Kronman 1567
Public Administration and Public Deliberation:
An Interpretive Essay
Robert B. Reich 1617
Comments
Rethinking Fairness: Perspectives on the Litigation Process
Jon 0. Newman 1643
For Reconciliation
Andrew W. McThenia and Thomas L. Shaffer 1660
Out of Eden
Owen M. Fiss
1669
Notes
Justice Without Favor: Due Process and Separation of
Executive and Judicial Powers in State Government
Forum Non Conveniens and the Extraterritorial
Application of United States Antitrust Law
Parental Rights and the Habilitation Decision for
Mentally Retarded Children
Judicial Right Declaration and Entrenched Discrimination
Incorporation of Independent Agencies into the Executive Branch
Forcing the Bystander to Get Involved:
A Case for a Statute Requiring Witnesses to Report Crime
1675
1693
1715
1741
1766
1787
�Judicial Right Declaration and
Entrenched Discrimination
"(W]here there is a legal right, there is also a legal remedy." 1 This
axiom generates an expectation that a court deliver a prompt remedy that
matches the articulated right. The virtue of this right-remedy obligation is
clear: By proceeding from an independent articulation of a right or violation to considerations for providing an adequate remedy, courts perform
not as choirs• but instead as instruments of right-actualization.
The virtue of this matching, or unified, approach is open to question,
however, where remedial considerations are the primary source of conflict
and disagreement. 8 In constitutional cases involving entrenched discrimination, for example,• controversial remedial costs often result from, and
increase with, the severity both of past discrimination and of the governmental, judicial, and societal neglect in remedying the continuing effects of
prior discrimination. In these cases, a perceived obligation to deliver a
1. S11 W. BLACKSTONE, CoMMENTARIES ON THE LAWS OF ENGLAND •22 ("(l)t is a general and
indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action of
law, whenever the right is invaded."); s11 also United States v. Louisiana, 380 U.S. 145, 156 (1964)
(Black, J.) (stressing "[t)he need to eradicate past evil effects and to prevent the continuation or
repetition in the future of the discriminatory practices shown to be so deeply engrained in the laws,
policies and traditions").
2.
A. BICKEL, THE LEAST DANGEROUS BRANCH 246-47 (1962).
3. Abram Chayes has cogently analyzed how the relief in public law adjudication departs from
the relief in traditional adjudication, which imposes particularized remedies on the basis of individual
liability. Chayes, The Roll of 1M judgt in Public lAw Litigation, 89 HARV. L. REv. 1281 (1976).
Chayes asserts that in many of the most important legal disputes in a complex society, judges must
consider the relevant social environment if they are to provide remedial justice. In a prominent essay
on constitutional values and structural reform, Professor Fiss discusses challenges facing the judge in
complex public adjuclication. S11 Fiss, The SuprnM Court, 1978 Ttrm-ForiWOrd: The Forms of
jwtict, 93 HARV. L. REv. 1 (1979). Fiss contends that as the quality of modem life is greatly
affected by large-scale bureaucratic institutions, the extent to which constitutional values play a role in
our lives will be contingent on the success of judges in implementing such values in large institutional
structures. Jd. at 2-8. Fiss concedes that this will often be a trying task for judges, and may even
threaten judicial independence. Nonetheless, argues Fiss, this "core dilemma" must be confronted if
courts are to play their intended roles in protecting constitutional rights. Jd. at 51-58.
This Note does not seek to enter the debate concerning judicial competence to implement complex
.structural remedies. Compart 0. F1ss, THE CIVIL RIGHTS INJUNCTION (t 978) and Note, judicial
lnttrvmlion and OrganiUJtitm Tlalory: Changing Burtaucratic Bthavior and Policy, 89 YALE L.J.
513 (1980) with Glazer, Should judgts Adminisur Social Strvictsr, 50 Pua. INTEREST 64 (1978)
(contending that judges lack competence to fashion complex social remedies). Instead, this Note seeks
to explore both the extent to which agreement on rights is possible where consideration of rights and
remedies is bifurcated, and the long-term effect such an articulation of rights might have in achieving
corrective justice in public law cases.
4. S11, t.g., Milliken v. Bradley, 418 U.S. 717 (1974) (Detroit school desegregation case); Swann
v. Charlotte-Mecklenberg, 402 U.S. 1 (1971) (Charlotte); United States v. Board of Educ. of Chicago,
744 F.2d 1300 (7th Cir. 1984) (Chicago); Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), ctrt.
dmild, 421 U.S. 963 (1975) (Boston); Hobsen v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), affd
sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969) (Washington, D.C.).
s,
1741
�The Yale Law Journal
Vol. 94: 1741, 1985
unified opinion can easily result in remedial factors exerting a backward
influence that restricts the scope of articulated rights. To allow such remedial considerations to trim rights is to allow the depth of past wrongs and
majoritarian hositility or unwillingness to bear remedial costs to be instrumental in narrowing present and future rights. Whatever the merits of
contemplating such factors when devising relief,' neither majority hostility
nor the severity of unremedied harm are appropriate considerations for
contracting the contours of minority rights. Because the core conflict in
cases of entrenched discrimination often involves remedial considerations
that are not appropriate to the formation of rights, this Note argues that
judges should conceptually and procedurally bifurcate their determination
of right and remedy to ensure the independent declaration of minority
rights.•
Bifurcation neither condones inadequate remedies nor guarantees full
remedies. Bifurcation simply requires that controversy over remedial costs
or judicial competence not obstruct the articulation of the full right at
stake. 7 Although gaps between rights declared and remedies imposed can
5. The controveny over judicial desegregation orden cannot be seen totally as an issue of judicial
competence. Where massive resistance has been absent, courts have in the past used their equity
powen for far more complex matten. For example, around the tum of the century, "nearly 25 per·
cent of the entire railroad system of the country ha(d) been in receivership, the receiven becoming
virtually operaton of this large fraction of the transportation system. Since 1870 there [had been] over
one thousand railroad receivenhips." Berle, Rtcriutrslaip, in 13 ENCYCI.OPEDIA or THE SociAL SciENCES 149 (1934).
6. The process of conceptual bifurcation advocated in this Note in no way alten established "case
or controveny" or justiciability doctrine. Cases of entrenched discrimination have in fact been distinguished by both their controvenial and their adversarial nature. S11 Gewirtz, Rtmtdils and Rtsis·
tanu, 92 YALE L.J. 585 (1983) (discussing history of resistance to school desegregation decrees).
Difficult desegregation cases always involve analyzing and resolving the specific facts of a dispute and
not "opinion[s] advising what the law would be upon a hypothetical state of facts." Aetna Life Ins.
Co. v. Haworth, 300 U.S. 227, 241 (1936). The Supreme Court has in fact, several times, been
willing to declare rights even though the capability for remedial enforcement was questionable. S11
Powell v. McCormick, 395 U.S. 486, 548-49 (1969) (bifurcating and deferring consideration of
whether or not coercive judicial relief was possible and issuing declaratory judgment invalidating exclusion of Congressman Powell); Glidden Co. v. Zdanok, 370 U.S. 530, 570-71 (1962) (Harlan, j.)
(inability of Court of Claims and Court of Customs and Patent Appeals to enforce remedies against
the federal government "does not debar those courts from exercising the judicial power provided for in
Article III"); South Dakota v. North Carolina, 192 U.S. 286, 318-21 (1904) (rendering decision in
suit for money between states, despite judicial impotence to enforce the award). S11 gmtrally j.
NoWAK, R. ROTUNDA & J. YoUNG, CoNSTITUTIONAL LAW 112-13 (2d ed. 1983). Furthermore,
the Supreme Court's approval of the Declaratory Judgment Act further supports the view that coercive relief by the judiciary is not determinative of justiciability under Article III. S11 Aetna Life
Insurance Co. v. Haworth, 300 U.S. 227 (1936). The fact that bifurcation may allow courts to declare
rights broader than they themselves can, or will, enforce does not relieve other governmental parties
from an obligation to close the gap. S11 infra note 83.
7. It is important to distinguish between support for the process of bifurcation and the substantive
result of a particular remedial decision. For example, one could disapprove of the remedial balanCing
in Brown v. Board of Educ., 349 U.S. 294 (1955) (Brown II) (remedial decision permitting deliberate
speed), while still supporting the decision to bifurcate because it may have prevented the Court's
differences over remedies from obstructing their declaration of the right to be free from the effects of
state-imposed caste distinctions. Brown v. Board of Educ., 347 U.S. 483 (1954) (Brown I) (unanimous
1742
�Judicial Right Declaration
exist under such an approach, the clear declaration of rights forces the
majority to confront' the right-reality discrepancy and provides minorities
with a unifying claim to press for future judicial or majoritarian remedies.
I.
MATCHING REMEDIES TO RIGHTS:
Brown
TO
Swann
The declaration in Brown I,• that state-maintained school segregation is
unconstitutional, instantaneously created a wide discrepancy between constitutional ideals and reality for black school children. In the years between Brown and Swann v. Charlotte-Mecklenberg, 10 this disturbing gap
prompted civil rights advocates to push continually for judicial remedies
that would truly realize the rights articulated in Brown I.
Brown ushered in a period of remedial crises. A decade after the decision only 1.2% of black children in the South were attending schools with
any whites. 11 From a pure private-law perspective, in which a judicially
declared right is worth its weight only in judicially enforced remedies, the
right declared in Brown I was meaningless.
Despite the failure of Brown Il 11 to command effective relief in the
"worst-remedy" 18 case of nationwide school desegregation, the right declared in Brown I was the legal basis for victory in landmark Supreme
Court per curiam decisions outlawing segregation in city park facilities, 1•
l
decision on right); 111 Ulmer, EGrl WGrrm Gntl IM Brown Decision, 33 J. PoL. 689, 697-78 (1971)
(Chief Justice Warren tried fint to discuss the decree, but was only able to get unanimity when the
Justices agreed to decide the right and to defer consideration of the remedy).
Bifurcation, in fact, allows plaintiffs greater room to plead responsibly for broad remedies. Once the
court declares the right, plaintiffs do not have to fear that pleas for broad matching relief will scare
the court into narrowing the definition of the right or violation.
8. Conversely, denying the existence of a full right can legitimate a constitutionally distateful
condition. S11 Wright, Thl Role of IM Suprnt~~ Court ira " DmaocrGiic Soeil,_]utlicif.Jl Activism or
ReslrGiratr, 54 CoRNELL L. REv. 1, 7 (1968):
As Professor Black has perceptively observed . . . when the Court upholds a statute's constitutionality it "legitimates" it. When a statute expresses the most enlightened sentiments of
the community, this legitimating function may serve [an) important and creative purpose
. . . . But unfortunately the Court's seal of constitutional approval has the same effect where
the statute is a repressive one.
9. 347
483 (1954).
10. 402
1 (1970).
11. U.S. CoMM'N ON CIVIL RIGHTS, FULFILLING THE LETTER AND SPIRIT OF THE LAW: DE·
SEGREGATION OF THE NATION'S Puauc Sc:Hoou 6 (1976). As of August 1, 1963, there was nol G
single desegregated school district in all of Alabama, Mississippi and South Carolina, and only one in
Louisiana and Georgia. S11 H.R. REP. 914, 88th Cong., 2d Sess., reprirautl ira 1964 U.S. CoDE
CoNG. 8t AD. NEWS 2391, 2504-06.
12. 349
267 (1955).
13. This Note uses the term "wont-remedy" to refer to cases in which the actualization of a
declared right would force the court to confront extreme political and social resistance. Even where
remedial concerns are appropriate for defining a right in such wont-remedy cases, the danger exists
that courts may narrow the general interpretation of the right, which will apply in cases where the
remedial problems do not exist, or where they are inappropriate to the claim of right at stake. A
perceived obligation to match right and remedy can thus encourage wont-remedy cases to have a
disproportionate influence on rights. This is a variation of the maxim, hard cases make bad law.
14. Muir v. Louisville Park Theatrical Ass'n, 347 U.S. 971 (1954).
u.s.
u.s.
u.s.
1743
�The Yale Law Journal
Vol. 94: 1741, 1985
-public beaches and bath houses,t 1 municipal golf courses,t• public transportation, 17 public athletic contests, 18 airport restaurants, 18 and courtroom
seating. 10 The right-declaration in Brown I enabled the NAACP Legal
Def~nse Fund successfully- to challenge post-Brown district court cases
like Lonesome v. Maxwell11 that had initially upheld the "separate but
equal" principle in non-education cases.
The full force of the Brown I right-declaration, however, lay in its interaction and interdependence with the political process. Gayle v. Browprovides a poignant example. The case arose from Rosa Park's refusal to yield her front-of-the-bus seat on December 5, 1955 and Martin
Luther King, Jr.'s subsequent organizing of the nine-month Montgomery
bus boycott. 18 This incident was most crucial to the non-violent civil rights
movement. 14 On November 13, 1956, Dr. King declared victory, announcing to a packed church that the Supreme Court (citing Brown), had found
segregated public buses unconstitutionaJ.I1 In examining this victory, one
der••
15. Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955).
16. New Orleans City Park v. Drctage, 358 U.S. 54 (1958); Holmes v. City of Atlanta, 350 U.S.
879 (1955).
17. Gayle v. Browder, 352 U.S. 903 (1956).
18. State Athletic Comm'n v. Doney, 359 U.S. 533 (1959).
19. Turner v. City of Memphis, 369 U.S. 350 (1962).
20. Johnson v. Virginia, 373 U.S. 61 (1963).
21. 123 F. Supp. 193 (D. Md. 1954), rev'd sub nom. Dawson v. Mayor of Baltimore, 220 F.2d
386 (4th Cir.), affd, 350 U.S. 877 (1955) (per curiam).
22. 352 U.S. 903 (1956). Gayll v. Brtnudlr shows that even within two years the right declared in
Brtnun I had gained force. At the district level, where a three-judge court had ruled in favor of
plaintiffs, Judge Seyborn H. Lynne dissented, declaring that "[o)nly a profound, philosophical disagreement" and his "study of Brtnun ... convinced [him) that it left unimpaired the 'separate but
equal' doctrine in . . . local transportation." 142 F. Supp. 707, 717, 719-20 (M.D. Ala. 1956}
(Lynne, J., dissenting). Judge Lynne's dissent, as well as the Montgomery Board of Commissioner's
brief before the Supreme Court, argued that the Court's statement in Plusy v. F1rgwon had involved
"not education but transportation." Brtnun I, 347 U.S. at 491; se~ Appellant's Jurisdictional Statement at 17, Gayle v. Browder, 352 U.S. 903 (1956). Judge Rive's opinion, however, stressed that
Brtnun, in conjunction with Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955), and Holmes v.
Atlanta, 350 U.S. 879 (1955), had established a broader anti-caste or anti-segregation principle. 142
F. Supp. at 716-17. The Supreme Court obviously agreed; it affirmed fJir curiam, citing Brtnun,
Dawson and Holm1s. The crucial point is that the remedial failures in Brtnun did not limit Brtnun's
power in changing the general interpretation of the Fourteenth Amendment and, thus, in actualizing
those rights in cases with less controversial remedies.
23. Se~ gm~rally M. KING, STRIDE TowARDS FREEDOM (1962) (King's own account of Montgomery bus boycott).
24. Se~ M. KING, WHERE Do WE Go FRoM HERE: CHAOS OR CoMMUNITY? 17 (1967) (Montgomery bus boycott "inspired and informed far-flung movements that included sit-ins, boycotts and
mass marches . . . a new method of protest action had been born."); L. BENNETI", CoNFRONTATION:
BLACK AND WHITE 11 (1966) ("Montgomery and Martin Luther King, Jr., created a revolutionary
point of departure which the sit-in students carried to a new stage of development."); P. CARROLL &
D. NOBLE, THE FREE AND THE UNFREE 406-07 (1977) ("From Montgomery, protests spread
throughout black communities. All aspects of Jim Crow caste patterns were being challenged.").
25. See J. BASS, UNUKELY HEROES 76 (1981) (after the favorable Supreme Court decision,
"King called a mass meeting and ten thousand Negros jammed two of Montgomery's largest black
churches and the adjacent streets.").
1744
�Judicial Right Declaration
must ask not whether political protest or the Supreme Court was the determinative factor. The story can be told only in their positive interaction.
Whereas Plessy v. Ferguson•• had frozen the anti-caste claims of
blacks, Brown fanned an already-sparked fire17 by placing the legal and
moral weight of the Constitution behind the black leadership who sought
to dismantle the southern caste system. More important than Brown II's
specific remedy was the tension of a highly visible gap between constitutional rights and judicial remedies that fueled the political process. Massive resistance to judicial decrees forced white America to confront racism
openly,18 while allowing blacks to unify on several fronts behind the claim
of an unkept constitutional promise.•• Throughout the movement, Martin
Luther King sought to stir national dissonance by invoking the image of
the right-reality gap in American race relations. 80 Eventually the political
26. 163 u.s. 537 (1896).
27. Major chroniclers of this period have recognized Brown as crucial in spurring the civil rights
movement. Stt R. KLUGER, SIMPLE jUSTICE 749 (1975) ("The mass movement sparked by Brown
was unmistakably thriving as soon as six months after the Court handed down its implementation
decree"); stt also j. WILKINSON, FROM BROWN TO BAKKE 49 (1979) ("Brown was the catalyst that
. . . culminated in the two major Civil Rights acts.").
28. The role that the media plays in publicizing Court decisions and the social protests over rightremedy gaps will often be crucial. This was particularly true in the Birmingham, Alabama protests of
1963. S11 Bickel, Afllr a Civil Rights Act, THE NEw REPUBUC, May 9, 1964, at 11-15 (after nation
watched beating of protestors in Birmingham, a "new climate of national opinion was created on the
streets of Birmingham."); Sll also D. RAVITCH, THE TROUBLED CRUSADE: AMERICAN EDUCATION
1945-1980, at 139 (1983) ("It seemed outrageous to the distant television viewer to see white men
striking blacks who were not resisting blows, in order to prevent the blacks from ordering a cup of
coffee or from sitting where they wished in a bus terminal."); M. KING, WHY WE CAN'T WAIT
(1964) (King's account of Birmingham protests).
29. Though they pressed for strong and immediate relief from the Court, plaintifrs attorneys in
Brown, Thurgood Marshall and Robert Carter, believed that the positive impact of Brown would
come largely from the political action that the right-declaration encouraged. Stt Carter &: Marshall,
Till M1aning and Sign!jieanu of till SupriTM Court D1cr11, 24 J. NEGRO EDUC. 397, 402-03
(1955):
The [Brown) decision opened the door for Negroes to secure unsegregated educational facilities
if they do so desire ... [L)ittle will be done for the most part unless Negroes demand and
insist upon desegregation . . . [l)t will be accomplished only after a long and bitter fight, the
brunt of which will become a reality only if Negroes exhibit real militancy and press relentlessly for their rights.
30. S11 M. KING, supra note 24, at 10-11:
School desegregation is still 90 percent unimplemented across the land . . . . Thus America,
with segregationist obstruction and majority indifference, silently nibbled away at a promise of
true equality that had come before its time . . . . [F)or the Negro there is a credibility gap he
cannot overlook .
.At crucial points near the end of his life, President john F. Kennedy also forced the public to confront the discrepancy between American ideals and the plight of black Americans:
If an American, because his skin is dark . . . cannot send his children to the best public school
available . . . . [A)re we to say to the world-and much more importantly to each other-that
this is the land of the free, except for the Negroes; that we have no second-class citizens, except
Negroes; that we have no class or caste system, no ghettos, no master race, except with respect
to Negroes?
Television Address by President Kennedy, quoted in R. KLUGER, supra note 27, at 756.
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process responded, 81 and enacted the Civil Rights Act of 1964,81 the Voting Rights Act of 1965,88 and the Fair Housing Act of 1968."
Moreover, the interaction between the judicial and political branches
was dialectical and mutually supportive. 81 While right declaration inspired majoritarian backing of antidiscrimination enforcement, such popular,88 legislative, 87 and executive88 support in tum gave the "least dangerous branch" 88 the confidence that their bold remedial decrees would
ultimately be enforced. By the end of the 1960's, the Court had commanded school boards to eliminate segregation "root and branch,""0
31. Two yean after Broum, sixty civil rights bills were given congressional hearings, resulting in
the 1957 Civil Rights Act, Pub. L. No. 85-315, 71 Stat. 634 (1957); see Dep't of Justice, Office of
Att'y Gen., Order No. 155-57 (Dec. 9, 1957) (establishing Civil Rights Division). While the Act
authorized the federal government to obtain injunctions only in voting rights cases, it helped lay the
administrative framework for serious civil rights enforcement by the federal government.
In 1960, both national political parties committed themselves in their party platforms to a program
that would eliminate discrimination and encourage equal opportunity. These statements were prominently cited in the legislative history of the Civil Rights Act of 1964. See S. REP. No. 872, supra note
10, at 2362-63:
As to those matten within reach of political action and leadenhip, . . . We pledge the full use
of the power, resources, and leadenhip of the Federal Government to eliminate discrimination
based on race, color, religion, or national origin . . . . ("Building a Better American," Republican platform, 1960).
The peaceful demonstrations for fint-class citizenship . . . are a signal to all of us to make
good at long last the guarantees of our Constitution . . . . The time has come to assure equal
access . . . to all areas of community life. . .. ("The Rights of Man," Democratic platform,
1960).
At many other prominent places in the legislative history of the Civil Rights Act of 1964, the need
for legislation to close the right-remedy gap is stressed. See id. at 2504 ("(T]he constitutional right to
be free from racial discrimination in public education must be realized."); s11 also id., at 2368-77,
2393-94, 2410-12, 2503-19.
32. Pub. L. No. 88-352, 78 Stat. 241 (1964) (codified as amended at 42 U.S.C. § 2000a-2000h
(1976 & Supp. V 1981)).
33. Pub. L. No. 89-110, 79 Stat. 437 (1965) (codified as amended at 42 U.S.C. §§ 1971,
1973-1973dd (1976 & West Supp. 1983).
34. Pub. L. No. 90-284, 82 Stat. 73 (codified as amended at 42 U.S.C. §§ 3601-3619, 3631
(1976)).
35. SeeM. KING, THE WoRDS or MARTIN LUTHER KING, jR. 57 (1983):
Direct action is not a substitute for work in the courts and the halls of government. Bringing
about passage of a new and broad law . . . does not eliminate the necessity for bringing about
the mass dramatization of injustice in front of a city hall. Indeed, direct action and legal action
complement one another; when skillfully employed, each becomes more effective.
36. In 1959, 83% of parents in the south objected to their children attending a school that was
half-integrated. By 1970, only 43% objected to equally-integrated schools, while during the same time
span those parents objecting to marginal integration declined from 72% in 1959 to 16% in 1970. 3
THE GALLUP PoLL: Pusuc OPINION 1935-1971, at 1598, 2010, 2211 (1972), reprinted in G.
0RFIELD, MUST WE Bus? 109 (1978).
37. See supra notes 31-34.
38. For an account of the role of Burke Manhall, Assistant Attorney General, Civil Rights Division and other Justice Department lawyen in using executive enforcement, see J. BASS, supra note
25, at 306-07 (1981) (justice Department intervention in crucial Jefferson County Alabama case); V.
NAVASKY, KENNEDY jUSTICE 96-155 (1971).
39. See A. BICKEL, supra note 2.
40. See Green v. County School Bd., 391 U.S. 430, 437-38 (1969) (district must convert to plan
that eliminated discrimination "root and branch").
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though it still had not authoratively defined the remedial obligations of
school authorities and district courts in implementing Brown I.
II.
POST-SWANN: DENYING A RIGHT-REMEDY GAP
Unlike the major southern cases of the 1950's and 1960's, cases involving racially identifiable schools in northern urban centers did not also involve a facially unconstitutional statute. 41 Thus, northern cases demanded
a vital step unnecessary in adjudicating southern school segregation-the
plaintiff had to establish a violation itself. This required a complex inquiry. School segregation in many northern cities resulted directly from
residential racial containment41 in the inner core of those cities. While
local school board policies had often contributed substantially to this condition, such residential segregation was inevitably the result of a network
of state policies. 48
Swann v. Charlotte-Mecklenberg was a pivotal point in school segregation cases. 44 On one hand, Swann was typical of the southern de jure case
41. S11 Morgan v. Kerrigan, 509 F.2d 580, 582 n.t (1st Cir. 1974} (citing twelve cases in western
and "northern cities where segregation had often resulted from local practices rather than laws."); s11
also J. WILKINSON, supra note 27, at 55 ("The North had its own way of distancing the Negro, all
without segregation statutes. In the North, the barrier was housing, potentially the most effective of
all.").
42. The term "racial containment" refen to the process whereby public and private discrimination in housing, investment, and educational policies gradually concentrates minorities in the center
core of cities. Plaintiffs in Milliken v. Bradley used the terms "containment" and "confinement"
interchangeably in oral argument before the Supreme Court:
[A) series of mutually supportive, interlocking [governmental) devices, ... especially the segregated school practices, operated in lockstep with an areawide metropolitan policy of confining by housing discrimination at the local level, at the governmental levels, both state and
federal . . . confining black families to an identifiable core . . . expanding, but still surrounded by a white ring or reciprocal corresponding schools.
Transcript of Oral Argument, Milliken v. Bradley, 418 U.S. 717 (1974), rtprinted in 80 LANDMARK
BRIEFS AND ORAL ARGUMENTS 1223 (1980). (P. KURLAND & G. CASPER eds. 1977.)
43. Because of the state action requirement, the relevant inquiry is into the degree various governmental actions caused, fostered, or encouraged racial isolation. See J. KusHNER, APARTHEID IN
AMERICA 30-52, 56-63, 86-91 (1980) (documenting discriminatory impacts of Federal Housing Administration and Veterans Administration policies as well as local zoning policies}; G. MYRDAL, AN
AMERICAN DILEMMA 605-39 (1944) (discussing combination of governmental practices and customs
fostering residential segregation); U.S. COMM'N ON CIVIL RIGHTS, TWENTY YEARS AFTER Brown:
EQUAL OPPORTUNITY IN HOUSING 3-13, 167-68 (1975) (discussing governmental influence in racial
covenants and residential segregation). For district court findings of state discrimination in school
desegregation cases, s11 infra notes 46, 53, 68, 69.
44. See Columbus Board of Educ. v. Penick, 443 U.S. 449, 486 n.6 (1978) (Powell, J.,
dissenting):
During (1954-1964,) the issues confronted by the courts by and large involved combating the
devices by which States deliberately perpetuated dual school systems and dismantled segregated
systems in small, rural areas . . . . This Court did not begin to face the difficult adminstrative
and social problems associated with de facto segregation in large urban school systems until
SWtJnn v. Charlotte-Mecklenberg . . .
See also Brest, The Supreme Court, 197J Term-ForiWord: ln Defense of the Antidiscrimination
Principle, 90 HARV. L. REv. 1, 33 (1976) ("In Green the causal connection between past discrimination and the current racial composition of the schools was as clear as such matten ever can be. . . .
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in which segregation occurred by state law. On the other hand, Swann
provoked newer questions critical to northern cases concerning the proof,
intent, and causal impact of non-statutory state action and the constitutionality of segregated schools resulting from neighborhood assignments in
residentially segregated neighborhoods. 41
In the district court opinion, Judge McMillan found that a panoply of
state action-ranging from city planning and real estate zoning laws to
federal and state urban-renewal plans-had interwoven with and guided
private discrimination to cause residential segregation in Charlotte. 48
When reviewing Judge McMillan's findings, however, the Supreme
Court was also aware of growing opposition to court-ordered desegregation. 47 The Court may have concluded that to affirm such a wide-ranging
violation along with a judicial obligation to provide immediately a matching remedy would give ambitious district court judges an overlyIn this respect, Gf'em was the Court's last easy school desegregation case.").
45. Many scholars and judges have defined the violation at stake in Bf'oum I as the state-fostered or
maintained caste status of an identifiable sub-group. For the most comprehensive presentation of this
theory, see Dimond, Tlu Anti-Caste Principle-Tt1111af'd a Constitutional Standaf'd fo,. Rl'llilw of
Race Cases, 30 WAYNE L. REv. 1, 42-61 (1983) (inner city ghettoization caused by variety of state
policies that should be remedied by variety of state policies); 111 also Williams v. City of New Orle·
ans, 729 F.2d 1554, 1573 & n.7 (5th Cir. 1984) (Wisdom, J., concurring in part and dissenting in
part) (approving Dimond's anti-caste principle in defining systematic discrimination by New Orleans
Police Department); cf. Keyes v. School Dist. No. 1, 413 U.S. 189, 217 (1972) (Douglas, J., concurring) ("(A) State is barred from creating by one device or another ghettoes that determine the school
one is compelled to attend."); Jones v. Mayer, 392 U.S. 409, 442-43 (1968) (Stewart, J.,) ("[W]hen
racial discrimination herds men into ghettos and makes their ability to buy property turn on the color
of their skin, then it too is a relic of slavery.").
Variations of an anti-caste principle were first delivered in three prominent law review articles
defending the holding in Bf'oum. See Black, Tlu lAwfulness of t1u Stg?"egation DecisUms, 64 YALE
L.J. 421, 425 (1960); Cahn, jurisprvdmce, 30 N.Y.U. L. REv. 150, 161 (1955); Pollak, Racial
Discrimination and judicial Integrity: A Reply to Pf'ojessof' Weclulef', 108 U. PA. L. REV. 1, 28
(1959).
46. Swann v. Charlotte-Mecldenberg, 300 F. Supp. 1358 (W.D.N.C.), 306 F. Supp. 1299
(W.D.N.C. 1969), ajfd in pan and vacated in pan, 431 F.2d 138 (4th Cir. 1970), aff'd in pan
and vacated in pan, 402 U.S. 1 (1971). In Charlotte, blacks had "become concentrated almost entirely in one quadrant of a city of 270,000." 300 F. Supp. at 1360. In order to impose affirmative
duties on the school board, Judge McMillan had to establish a causal relationship between the state
and the residential segregation. Instead of relying solely on the segregation law or the acts of the
school board in establishing the violation, McMillan traced the role state policies had played since
1900 in causing residential segregation. ld. at 1365.
47. See G. 0RFIELD, mpf'a note 36, at 109-12. Richard Nixon ran an anti-busing campaign in
1972. ld. at 335-40. On March 16, 1972, Nixon asked Congress in a nationally televised speech to
enact legislation stripping much of the courts' desegregation powers. ld. at 335. On June 23, 1972,
Congress did in fact pass anti-busing legislation, the Education Amendments of 1972, Pub. L.
92-318, 86 Stat. 235, codified at 20 U.S.C. §§ 1651-56 (1982). The bill was interpreted, however, as
applicable only where no constitutional violation had been found. See 2 N. DoRSEN, P. BENDER, B.
NEUBORNE & S. LAW, POLITICAL AND CIVIL RIGHTS IN THE UNITED STATES 693-94 (4th ed.
1979).
Polls in 1965 "showed that people saw action against discrimination as the most important question
before the country . . . . During the early 1970s, the public seemed less and less concerned." See G.
0RFJELD, supf'a, at 110. The public ranked black problems as 24th out of 27th in 1972, and last out
of 30th in 1974, in polls ranking national priorities. ld.
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controversial blank check to restructure a wide range of state and local
governmental policies. 48
Swann can be understood as an attempt to resolve these right-remedy
matching tensions. By authorizing broad and immediate judicial power to
remedy proven constitutional violations, the Supreme Court could claim it
was at last closing the remedial gap left by Brown II. At the same time,
however, by limiting its violation inquiry to the actions of local school
authorities and deliberately ignoring "the myriad factors ... [that] ...
can cause discrimination in a multitude of ways," 49 the Court foreclosed
the potential for broad state-wide intervention and for judicial consideration of the segregative effects of a network of state policies.
.
But why the focus only on school boards? Brown v. Board of Education had only centered the remedial focus on school boards. In the four
cases joined in Brown, state statutes had been the direct source of the
violation. 10 A subtle, yet influential, form of judicial activism occurred in
Swann when the Court explicitly chose not to reach the issue of whether
"other types of state action, without any discriminatory action by the
school authorities, is a constitutional violation requiring remedial action
by a school desegregation decree. " 11
48. During oral arguments in Swann, the Court specifically asked Solicitor General Ervin Griswold "are we talking about the substantive right . . . or . . . the appropriate remedy . . . ? They are
different are they not?" Griswold replied, "Yes, Mr. justice, but they are intertwined." The Court
again pressed whether there was a difference between the "substantive constitutional right that each
individual public school student has ... [and) what is required of a court to disestablish . . . . They
are interrelated, but they are also different." Griswold conceded they "are different questions," but
found it "difficult to contend that if the right was established that the remedy could not be devised to
protect the right." The inquiring Justice immediately replied, "My point is that if there is such an
absolute Constitutional right, then that right exists in Chicago, North Dakota or Cincinnati or Dth'oit, as well as in Charlotte." Transcript of Oral Argument, Swann v. Charlotte-Mecklenberg, 402
U.S. 1 (1971), THE COMPLETE ORAL ARUGMENTS OF THE SUPREME CoURT OF THE UNITED
STATES 1970 TERM 53 (emphasis added).
.
An insightful look into the Court's concerns appears in R. WOODWARD & S. ARMSTRONG, THE
BRETHREN 101-02 (1979). A passage describes Justice Potter Stewart pondering the affirmance of
District judge McMillan's sweeping decision in Swann:
From Stewart's point of view, McMillan had put the Court on the spot. Two decades before,
it would have been easier for the Court to back McMillan up. Then, Northern Democrats and
Northern Republicans had given bipartisan support to the Court's desegregation orders. Although President Eisenhower had never enforced the orders with any enthusiasm, at least he
had not campaigned against them as Nixon had done.
Id. at 101-02.
49. Swann, 402 U.S. at 22.
SO. In the Topeka case, Brown v. Board of Educ., 98 F. Supp. 797 (D. Kan. 1951), plaintiff
sought to enjoin enforcement of a Kansas statute that pennitted cities with populations of over 15,000
to maintain segregated schools. In the other three cases joined, Briggs v. Elliott, 98 F. Supp. 529
(E.D.S.C. 1951), 103 F. Supp. 920 (E.D.S.C. 1952); David v. County School Bd., 103 F. Supp. 337
(E.D. Va. 1952); and Belton v. Gebhart, 33 Del. Ch. 144, 87 A.2d 862 (1952), plaintiffs all sought to
enjoin enforcement of state statutes and state constitutions that required the maintenance of segregated
schools. S11 Brown I, 347 U.S. 483, 486 & n.1 (1954).
51. 402 U.S. at 23.
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At the trial in Milliken v. Bradley,''1 Judge Roth was forced to confront
the limitations of focusing only on particular school boards when defining
both the violation and the remedy. Roth realized that where a network of
state policies had created a condition of inner-city racial containment,68
any remedy within the contained area would perpetuate rather than eliminate the discriminatory violation. Holding the state of Michigan ultimately responsible, Roth contemplated a busing remedy reaching into
fifty-four white school districts surrounding the Detroit inner-city area. 64
Roth's decree may have provoked the worst-remedy fears contemplated
by the Supreme Court in Swann. 66 Where the violation was defined so
broadly, the required matching remedy would affect thousands of whites
who saw themselves as innocent," while inviting district courts to intervene broadly in local and state government without popular support.
The Supreme Court reacted in Milliken by limiting the violation, defining it as "Detroit-only,"67 and parading the "horribles" involved in Judge
Roth's remedial decree. 68 This discussion, however, exposed the Court's
preoccupation with remedial crises. 68 The Sixth Circuit had vacated
52. Bradley v. Milliken, 338 F. Supp. 582 (E.D. Mich. 1971), affd, 484 F.2d 215, 251-52 (6th
Cir. 1973), rnld, 418 U.S. 717 (1974).
53. S11 338 F. Supp. at 587:
Governmental actions and inaction at all levels, federal, state and local, have combined, with
those of private organizations, such as loaning institutions and real estate associations and
brokerage firms, to establish and to maintain the pattern of residential segregation throughout
the Detroit Metropolitan area . . . . For many years FHA and VA openly advised and advocated the maintenance of "harmonious" neighborhoods, i.e., raeiall' and economically
harmonious.
For an excellent account of the trial in MilliMn, s11 P. DIMOND, BEYOND BusiNG (1985).
54. Bradley v. Milliken, 345 F. Supp. 914 (E.D. Mich. 1972). Judge Roth never actually ordered
an' busing decree; rather, he appointed a panel to prepare plans for an effective metropolitan dcscgre·
gation remedy. Id. at 917. S11 infra note 63.
55. S11 supra note 48.
56. The Supreme Court remains concerned about innocent third parties in anti-discrimination
remedies. See Firefighters Local Union No. 1784 v. Stotts, 104 S. Ct. 2576, 2593 (1984) (O'Connor,
J., concurring) (district courts must "carefully balanc{e) the competing interests of discriminatccs
[and) innocent employees"). But s11 Schnappcr, Pnp1tv.atilm of Past Diseriminatilm, 96 HARV. L.
REV. 828,846-47 (1983) ("Any claim of innocent third parties to be free from harmful consequences
rooted in past discrimination is not superior to the constitutional rights of equally innocent black
victims.").
57. Milliken, 418 U.S. at 746 ("The Constitutional right of the Negro respondents residing in
Detroit is to attend a unitary district in that distriet. ") (emphasis added).
58. S11 418 U.S. at 743:
The metropolitan remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate units into a vast new super school district . . . .
Entirely apart from the logistical and other serious problems attending large-scale transporta·
tion of students, the consolidation would give rise to an array of other problems in financing
and operating this new school system.
The Court then asked eight consecutive questions pertaining to remedial practicality. ld.
59. The Court was clearly worried about the Sixth Circuit's approval of the state responsibility
ruling by the district court, s11 418 U.S. at 734 n.16, and its conclusion that some interdistrict remedy
would be necessary to prevent the Detroit schools from being all-black. ld. at 735; s11 Milliken v.
Bradley, 484 F.2d at 238-41 (state-school board agency relationship); id. at 245 (interdistrict remedy
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�Judicial Right Declaration
Roth's remedial decree,80 and even Richard Nixon's Solicitor General,
Robert Bork, had asked only that the case be remanded so as to join the
affected suburban school districts and take evidence "concerning any constitutional violations involving the suburban districts and any interdistrict
racially segregated impact of the Detroit violations. " 81
The Supreme Court thus had a built-in opportunity to deliver a bifurcated opinion; with no remedial decree before it, the Court could have
spoken purely in terms of the right involved. 88 Instead, the Court carefully
defined an intra-district, local school-board-oriented violation88 that allowed for matching intra-district remedies at the expense of exploring the
deeper causes and potential cures for racial containment in the inner cities. 84 The focus on local school boards that began as a remedial strategy iri
necessary). Unwilling to permit a right-remedy gap or to allow the district court to become a "de facto
legislative authority" or "school superintendent," 418 U.S. at 743-44, the Supreme Court chose to
narrow the right to fit only an intra-district remedy. S11 supra note 57.
60. The Sixth Circuit had vacated the remedy and remanded to the district court with instructions
that it join the affected district under FED. R. Crv. P. 19. St~ 484 F.2d 215,251-52 (6th Cir. 1973).
61. S11 Memorandum for the United States as Amicus Curiae at 26-27, Milliken v. Bradley, 418
U.S. 717 (1974). To be sure, Solicitor General Bork argued for violation standards almost identical to
those that the Court adopted. S11 ill. at 10-22. Nonetheless, the remand suggested by Bork would
have at least permitted further discussion of the connection of housing discrimination and school segregation in inner cities. By simply deciding that the violation was "Detroit-only," the Court was in
effect saying that it was unwilling to look at the interdistrict effects of state-influenced housing
discrimination.
In Milliken, the Supreme Court refused to consider housing violations because the Sixth Circuit
had not relied on them. 418 U.S. at 728 n.8. This was a highly questionable procedural judgment.
While plaintiffs had not pressed their "racial containment" theory before the Sixth Circuit as the sole
grounds for affirming Judge Roth's ruling, they relied heavily on this theory (including its area-wide
housing discrimination component) as an alternative ground for affirmance before the Supreme Court.
S11 Brief for Respondents at 40-53, Milliken v. Bradley, 418 U.S. 717 (1974); Transcript of Oral
Argument, rtprinud in 80 LANDMARK BRIEFS AND ORAL ARGUMENTS 1222-26 (1980). Under
traditional Supreme Court practice, plaintiffs are entitled to have such an issue either heard or remanded (as Bork had suggested) for further consideration. S11 R. STERN & E. GRESSMAN, SUPREME
CoURT PRAcrJCE 53-54 (5th ed. 1978).
62. There is a wide agreement among scholars of different ideologies that the Supreme Court
limited the conception of the violation in Milliken as a result of remedial pressures. S11 J. WILKIN·
SON, supra note 27, at 223-29; Fiss, supra note 3, at 47 (Burger Court using tailoring principle to
limit right conception); Freeman, Legitimating RatitJl Discrimiatitm Through Antidiscrimination
Law: A CriiKal Rrvilw ofSupr~m~ Court Doctrin1, 62 MINN. L. REV. 1049 1107-11 (1978) (Court
has used a "perpetrator" perspective to limit violations dealing with the victim's condition); Nagel,
Stparatitm of PO'Uins and 1M Scop1 of Ftdtral Equitablt R~m~dils, 30 STAN. L. R.Ev. 666, 715
(1978).
63. The Court was not deterred by the fact "that all of these vital operational problems are yet to
be resolved by the District Court, and that this is the purpose of the Court of Appeals' proposed
remand." 418 U.S. at 743.
64. In Milliken, Justice Stewart did acknowledge in a concurring opinion that inter-district busing might still be appropriate where the "state officials had contributed to the separation of the races
by drawing or redrawing school district lines, . . . by transfer of school units between districts, . . .
or by purposeful, racially discriminatory use of state housing or zoning laws." 418 U.S. at 755 (Stewart, J., concurring). Since Milliken, plaintiffs have occasionally been able to meet the burden required
for inter-district remedies. S11 Evans v. Buchanan, 393 F. Supp. 428 (D .. Del.) (three-judge court)
(interdistrict remedy for Wilmington, Del.), affd, 423 U.S. 963 (1975) (per curiam); United States v.
Board of School Comm'rs, 456 F. Supp. 183, 188-90 (S.D. Ind. 1978), affd in part tJnd VtJCated in
part, 637 F.2d l 101, 1108-10 (7th Cir.), Clrt. dmild, 449 U.S. 838 (1980); s11 also Liddell v.
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Brown II had now become a means to limit state liability for equal protection violations.
The Court has relied on this narrow focus even when ruling in favor of
minority plaintiffs. In both Keyes v. School District No. ] 66 and Columbus v. Penick 66 the Court justified strong remedial decrees, not by exploring the networks of state action that can cause or contribute to racial containment, but by overplaying the role of individual, or institution-specific
fault in causing segregation. 67
Ill.
A.
RIGHT-DECLARATION AND SHAPING PERSPECTIVES
Removing Focus from the State: The Perception of Hopelessness
The trial courts in Swann, Milliken, Columbus v. Penick,68 and Evans
v. Buchanan 68 realized that, where the constitutional harm resulted from
racial confinement in inner cities, no amount of reshuffling within the
racially identifiable center city could in fact break down the state-fostered
barriers that excluded black students from the societal mainstream. Effective responses to such segregative conditions, therefore, might require ereMissouri, 731 F.2d 1294 (8th Cir. 1984) (en bane) (implicitly recognizing state responsibility theory
by approving voluntary interdistrict remedy largely funded by the state). For a discussion of the use of
housing discrimination in interdistrict remedies, see Note, Housing Discrimination as a Basis for
lnterdistrict School Desegregation Remedies, 93 YALE L.J. 340 (1 983).
65. 413 u.s. 189, 207-09 (1973).
66. 443 u.s. 449, 461-68 (1979).
67. In K9es, Justice Brennan ordered district-wide relief by extending to anti-discrimination law
the evidentiary presumption that proof of an individual's guilty intent in one sphere is prima facie
grounds for presuming the same intent in highly related decisions. 413 U.S. at 207-09. This analysis
so disturbed Justice Douglas that he wrote separately, criticizing Justice Brennan's quasi-criminal
analysis and arguing that state policies that knowingly cause racial ghettoization are the components
of an equal protection violation. /d. at 216-17 (Douglas, J., concurring) ("When a State forces, aids,
or abets, or helps create a racial 'neighborhood,' it is a travesty of justice to treat that neighborhood as
sacrosanct."). This has been the only time a member of the liberal wing of the Court has, in post·
Broum cases, written separately to criticize a favorable desegregation ruling.
The opinion in Columbus does not diverge from the school board focus either. Justice White ignored the variety of housing, investment, and real estate discrimination found by Judge Duncan at the
trial, 429 F. Supp. 229, 258-59 (S.D. Ohio 1977), and instead wrote that the "systemwide segregation in the Columbus schools . . . was the result of recent and remote intentionally segregative actions
of the Columbus [School] Board." 443 U.S. at 463-64.
68. 443 U.S. 449 (1979). At the trial level, Judge Duncan found that "housing segregation has
been caused in part by federal agencies which deal with financing of housing, local housing authorities, financing institutions, developers, . . . zoning and annexation . . . . " 429 F. Supp. at 259.
Judge Duncan further found that the "interaction of housing and schools operates to promote segregation in each." /d.
69. Judge Caleb M. Wright found that specific policies of intentional discrimination were encouraged in the Federal Housing Administration mortgage underwriting manual. Evans v. Buchanan,
393 F. Supp. 428, 434 (D. Del. 1975). He also found that language in the Code of Ethics-published
by the State-declared that "[a) realtor should never be instrumental in introducing into a neighborhood . . . members of any race . . . whose presence will clearly be detrimental to property values in
that neighborhood." This language was not eliminated until 1970. /d. at 434-35.
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ative remedial responses from the state that would involve governmental
institutions outside of the racially contained area.
By fragmenting state authority into local school districts for purposes of
both the remedial reach of courts and defining the scope of equal protection clause violations, Milliken cramped the potential for both effective
judicial and political responses to racial isolation. While restricting the use
of inter-district busing partially stripped federal courts of a familiar remedial tool for alleviating racially identifiable school districts, compartmentalizing state authority in defining the right did something more: It meant
that no governmental body with the capability to confront racial containment was under constitutional compulsion to come forth with any significant remedy at all.
Furthermore, after Pasadena City Board of Education v. Spangler,70
district courts no longer had jurisdiction even to confront alternative remedies where white flight caused resegregation. Thus, evasion of a desegregation decree became not only a remedial obstacle, but a basis for dispelling a constitutional violation. Through Milliken and Pasadena, the
Supreme Court thus promoted the societal perception that those aspects of
racial ghettoization that fell outside the narrowly defined violations were
constitutionally legitimate71 and remedially hopeless.
Attributing responsibility to the state as a whole71 would alter the
70. 427 U.S. 424 (1976) (where white Oight from school district or resegregation occurs, after
decree has been implemented, district court does not have jurisdiction to modify decree to maintain
integration). But 111 id. at 442-43 (Marshall, J., dissenting) (claiming that unitary system has never
been reached, so initial decree was never fully implemented).
71. This aitique of MilliAn&-that it served to legitimate racial ghettoization-is shared by J.
Harvie Wilkinson, a recent Reagan appointee to the Fourth Circuit, and the author of the best conservative account of the post-Brown segregation decisions.
By ignoring housing, the Supreme Court began to lift from white America responsibility for
the ghetto. MilliAn& 11. Bradley was an act of absolution. Segregated Detroit schools were not
the suburbs' creation and thus not their burden . . . "(w)hite society is deeply implicated in
the ghetto. White institutions created it, white institutions maintain it, and white society condones it." Because the Court had been the last hope for blacks, its decision rang like a final
sentence.
J. WILKINSON, supra note 27, at 224-25 (citation omitted). For the best account from a aitical legal
perspective, see Freeman, supra note 62, at 1102-19 (MilliAn& was integral in the "Era of Rationalization" of racial discrimination).
72. State responsibility implies not just that the state will be responsible for ensuring an intra·
district remedy, but that the state may not draw lines within itself to excuse itself from responsibility
for remedying state-induced conditions of racial containment. This conception does not offend the rule
that remedies must not exceed the scope of the violation. S11 Swann v. Charlotte-Mecklenberg, 402
U.S. 1, 16 (1970). Rather it recognizes that the state must be seen as part of the violation when it
allows government-fostered racial discrimination to go unremedied within its jurisdiction. This amception seeks only to harmonize current equal protection jurisprudence with the text of the Fourteenth
Amendment. "[N)or shall any State . . . deny to any person within its jurisdiction the equal protec·
tion of the laws." As Justice White wrote in dissent, the result of MilliAn& is that:
the State of Michigan, the entity at which the Fourteenth Amendment is directed, has successfully insulated itself from its duty to provide effective desegregation remedies . . . . The Court
draws the remedial line at the Detroit school district boundary, even though the Fourteenth
Amendment is addressed to the State and even though the Stall denies equal protection of the
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frameworks in Milliken and Pasadena that promote perceptions of hopelessness and false legitimization. When courts view a fragment of the state
(e.g., a local school district) as the party remedially responsible for segregation, flight from or racial isolation of that district denies possibilities of
meaningful remedies while allowing for judicial denial of the continuation
of constitutional harm. 78 When courts view the state as a whole as responsible, white flight and racial containment, however troublesome as remedial obstacles,74 would not obscure the judicial recognition and societal
perception of constitutional tension.
From this vantage point, one can unscramble the fundamental paradox
of Justice Powell's contention that where only majoritarian processes can
fully remedy social ills such as racial containment, federal courts should
limit their findings of constitutional violations. 71 Courts are inextricably
and unavoidably actors in the political environment. Through their right
declarations and findings, courts either inspire or inhibit the political
processes that Justice Powell thinks suitable to create complex remedies. 78
laws when its public agencies, acting in its behalf, invidiously discriminate. The State's default
is the "condition that offends the Constitution."
418 U.S. at 763, 771-72 (White, J., dissenting) (emphasis in original); see Cooper v. Aaron, 358 U.S.
1, 16-17 (1958) ('"Whoever, by vinue of public position under a State government, . . . denies or
takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the
name and for the State, and is clothed with the State's power, his act is that of the State."') (quoting
E" paru Virginia, 100 U.S. 339, 347 (1880)); Stl also Dimond, supra note 45, at 6 ("[T)he anticaste principle does not permit judicial companmentalization of overall governmental responsibility
for caste discrimination."); Schnapper, supra note 56, at 842 ("The division of responsibility among
several officials should not affect the underlying constitutional obligation of the state that employs, and
acts through, all of them."); Note, supra note 64, at 346 ("(S)tate officials cannot escape the force of
the equal protection clause simply by splintering or rearranging authority.").
73. Ironically, states have displayed their multi-faceted power to affect racial balance most vividly
in attempting to avoid segregation. Se~, 1.g., Griffin v. County School Bd., 377 U.S. 218, 221-25
(1964) (Virginia and Prince Edward County manipulated state constitution, tuition grants, tax laws,
and propeny tax credits to keep public schools in Prince Edward County closed for five years and
avoid desegregation). With the state generally exempted from ultimate responsibility for desegregation, "only a very limited effon appears to have been made to conduct research on the efficacy of state
action [in school desegregation)." CENTER FOR EDuc. AND HUM. DEv. PoL, STATE STRATEGIES
FOR REDUCING IsoLATION 2 (1981). Yet the National Project and Task Force on Desegregation
Strategies finds that "as the 1980s begin, the single most promising strategy for progress in school
desegregation may well be that of state initiative." STATE LEADERSHIP TOWARD DFSEGREGATING
EDUCATION: A POSITIVE FUTURE 5 (1980). St1 gna~rally C. WILLIE, ScHooL 0FSEGREGATION
PLANS THAT WoRK 29-39 (1984) (imponance of state responsibility in school desegregation).
74. Se~ Gewinz, supra note 6, at 532-35. Professor Gewirtz presents the difficulty of implementing effective desegregation decrees, even for "rights-maximizing" judges, considering the realities of
white flight. ld. Gewirtz' anicle assumes that couns only have jurisdiction over local school authorities. Where, however, the state as a whole is responsible, white flight would be less of an obstacle to
right-maximization, because the means for combating flight and containment would be greatly
expanded.
75. Estes v. Metropolitan Branches of Dallas NAACP, 444 U.S. 437, 451 n.18 (1979) (Powell,
J., dissenting from dismissal of ceniorari) ("Because the causes of segregation in .residential housing
are usually beyond judicial correction, wider solutions that will be acceptable to concerned parents
must be sought by legislators and executive officials.").
76. Justice Powell's opinions are the most susceptible to the claim that remedial concerns are
affecting both the scope and the findings of constitutional violations. Powell has often sought to deny
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While the Supreme Court confronted worst-remedy cases in both Brown
and Milliken, by bifurcating its opinion in Brown the Court at least created a constitutional vision gap that encouraged a constructive political
response. In Milliken, by contrast, the Court encouraged social complacency by formulating the violation so narrowly as to close any remedial
gap between constitutional values and the conditions of racial ghettoization.77 The Court thereby squandered the opportunity to make the majorequal protection violations while basing much of his argument on remedial considerations. His discussion of remedies in Estes, see supra note 75, echoes his arguments in Columbus v. Penick, 443 U.S.
449, 479 (1978) (Powell, J., dissenting), where, in opposing the majority's finding of a system-wide
violation, he argued that "restructuring and overseeing the operation of major public school systems-as ordered in these cases-fairly can be viewed as social engineering that hardly is appropriate
for the federal judiciary . . . ." /d. at 487. See also San Antonio Indep. School Dist. v. Rodriguez,
41 1 U.S. 1, 56 (1 972) (Powell, J.) (articulating concerns about "practical ramifications" of holding
Texas' public financing system unconstitutional; asserting that "[T)he constitutional judgment . . .
approved by our dissenting Brothers today would occasion in Texas and elsewhere an unprecedented
·upheaval in public education . . . . there is nothing simple or certain about predicating the consequences of massive change in the financing and control of public education.") But see id. at 58 (Powell's interesting disclaimer: "These practical considerations, of course, play no role in the adjudication
of the constitutional issues presented here. But they serve to highlight the wisdom of the traditional
limitations on this Court's function.").
Justice Powell's opinions on the intent requirement also support the contention that remedial concerns have influenced his rulings on violations and even standing. In Keyes v. School Dist. No. 1, 413
U.S. 189 (1973), Powell essentially bifurcated his attack on busing remedies from his discussion of the
violation and issued an opinion highly critical of the intent standard and the de facto/de jure distinction. /d. at 224 (Powell, J., concurring in part and dissenting in part) ("I would not, however, perpetuate the dt jure/de facto distinction nor would I leave to petitioners the initial tortuous effort of
identifying 'segregative acts' and deducing 'segregative intent."'). In Warth v. Seldin, 422 U.S. 490
(1975) Powell continued to de-emphasize racial considerations in the decisionmaking process. Powell,
in fact, denied standing by requiring a nearly impossible burden of proof as to the likelihood of
harmful impact. After the imposition of the process-oriented intent standard for an equal protection
violation, Washington v. Davis, 426 U.S. 229 (1976), Powell perhaps realized that the intent standard, because of its "tortuous" evidentiary burden, is a more effective means to limiting violations,
such as residential zoning and school desegregation, that lead to the wide-ranging judicial remedies he
objects to. In Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977),
Powell completely flip-flopped, de-emphasizing the importance of discriminatory impact in determining standing and constitutional violations, and issued instead, one of the narrowest discriminatory
purpose rulings.
The suggestion that Justice Powell might declare broader rights were he to bifurcate his rightremedy rulings finds support in Fullilove v. Klutznick, 448 U.S. 448 (1980). In that case, where a
majoritarian institution had devised the remedy, Powell was more willing to accept claims that group
inequality is causally related to past discrimination. "Although the discriminatory activities were not
identified with the exactitude expected in judicial or administrative adjudication, it must be
remembered that 'Congress may paint with a much broader brush than may this Court . . . ."'/d. at
503, 506 (Powell, J., concurring) (citation omitted).
77. Had the Supreme Court sought to confront the full depth and intricacies of racial containment
in Milliken v. Bradley or other segregation cases in the 1970's, a remedial gap likely would have
resulted. However great the immediate remedial neglect, political reality does not stand still. The
1982 Voting Rights Act Amendments, Pub. L. No. 97-205, 96 Stat. 131 (codified at 42 U.S.C. §§
1971, 1973 to 1973bb-1 (1982)), the increase in the number of minority mayors in large cities, and
increased voter turnout among minorities, see T. CAVANAGH & D. STOCKTON, BLACK ELECTED
OFFICIALS AND THEIR CoNSTITUENCIES (1983), together may have enhanced the potential for
majoritarian remedies had the problems of northern caste at least remained on the political agenda
during the decade since Milliken I. Surely Jesse Jackson, as Dr. King before him, could have invoked
a decade-long constitutional gap to stir majoritarian conscience. But Milliken did not proclaim rights;
it did not stir ideals or create political tension. Instead, it fulfilled the prophecy of Gunnar Myrdal,
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ity confront the discrepency between its constitutional values and the conditions of historically outcast groups. 78 The problem thus is not only that,
as Justice Powell recognizes, there are limits to law in bringing social
justice, but also that law may be quelling the social processes that generate social justice.
B.
Narrowing Dialogue; Limiting Choices
By consistently severing off the conditions of schools and the action of
local school boards from the broader problem of racial containment, the
Supreme Court encouraged scholarly and public debate 79 over a false issue: Could purely school-oriented desegregation decrees bring quantifiable
improvements to young minorities residing in the nation's slums and ghettos? 80 Within this public dialogue, the merits of any substantial governmental effort to attack past state-fostered discrimination often became reduced to analyzing whether or not racial busing improved scores on
standardized educational tests. Where school desegregation remedies have
not quickly improved test scores many have denigrated school desegregation remedies and overlooked the limited scope of the remedial approach
compared to the breadth and complexity of the problem. Judicial recognition of racial containment and the obligation of the State to address it
might have encouraged remedies responsive to racial isolation other than
busing and other pupil-assignment remedies. 81
see G. MYRDAL, supra note 43, at 617-52, by removing the problems of racial containment from
national consciousness and constitutional analysis just as the very process of racial isolation had physically removed the problems of discrimination from the eyesight and everyday lives of much of white
America.
78. Sometimes the prestige of the Supreme Court causes right-declaration alone to inspire immediate majoritarian remedies. Over three hundred school districts moved to desegregate voluntarily between Brown I and Brown II. See H. Rep. No. 914, 88th Cong., 2d Sess. reprinted in 1964 U.S.
CoNG. CoDE & AD. NEws 2391, 2504. Recently, in Roberts v. United States Jaycees, 104 S. Ct.
3244 ( 1984) the Supreme Court ruled that the Minnesota Supreme Court was justified in finding that
the local Jaycee chapter did fall within the meaning of a public accommodation and thus could not
deny women full membership under the Minnesota Human Rights Act. While the ruling had force
only in Minnesota, the National Jaycees immediately changed their national bylaws to allow women.
See Jaycees Vote to Admit Womm to Membership, N.Y. Times, Aug. 17, 1984, at AS, col. 1.
79. See Craine & Mahard, Desegregation and Black Achievemmt: A Review of the Research, 42
LAw & CoNTEMP. PRoss. 17, 17 (1978) ("[Ajchievement tests have received an undeserved emphasis
in the desegregation literature . . . [andJ the emphasis is embarrassing.").
80. Evidence generally indicates that school desegregation does improve minority test scores. See
Daniels, In Defmse of Busing, N.Y. Times, Apr. 17, 1983, § 6 at 34, col. 2; see also Craine &
Mahard, supra note 79, at 48 (most tests show gains for minorities, but such studies inherently
problematic). But see Werner, Busing and Quotas Assailed by Meese, N.Y. Times, Mar. 16, 1985, at
40, col. 6 (Attorney General Meese stating "it's generally recognized in educational as well as legal
circles that school busing has had a marginal effect as far as improvement is concerned, and actually
in some cases has added to the deterioration of the situation"). Whatever the merits of such studies,
the public and scholarly focus on the results has often detracted from the true constitutional issue: the
governmental obligation to remedy the effects of discriminatory state action that have left barriers to
first-class citizenship.
81. Professor Dimond argues that while a broader conception of constitutional violation would
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C.
Right-Declaration and Remedial Expectations: Statutory Examples
While bifurcation raises the danger of de-emphasizing the enforcemenf
of minority rights, 81 the expectations created by right-declaration may enhance political awareness, provoke the interest of the media and social
researchers, and eventually lead to full relief. 88 Civil rights progress often
proceeds in stages. Title VII had serious enforcement shortcomings when
passed in 1964. Yet the Act enhanced societal expectations of equal employment opportunities which inspired tougher remedial mechanisms
under state statutes and the 1972 Amendments to. Title VII. 84
involve more levels of the state, it would allow state governments more opportunities to alleviate caste
barriers without busing if they so desired. Stt Dimond, supra note 45, at 42-48. A governmental
responsibility approach would require courts to shift from a quasi-criminal perspective to a more
appropriate modern tort law approach in confronting entrenched discrimination. Cf G. CALABRF.SI,
THE CosTS OF AcciDENTS (1970) (emphasizing cost-spreading over individualistic fault).
82. This danger is real and should be seen as the major problem with the theory of judicial review
advocated in this Note. Stt infra notes 93-97 and accompanying text. Full remedies for decades of
entrenched discrimination, however, require a long-term remedial commitment. South Burlington
County NAACP v. Township of Mt. Laurel, 92 N.J. 158, 456 A.2d 390 (1983) (Mt. Laurel II),
provides a significant case study. In 1975, the New Jersey Supreme Court approved a 1973 finding
that Mount Laurel should remedy its long-standing discriminatory zoning policy. Mount Laurel/, 67
N.J. 151, 336 A.2d 713 (1975). This was a pure case of a bifurcated right-declaration with an almost
complete remedial gap. "(T]en years after . . . Mount Laurel remains affiicted with a blatantly exclusionary ordinance . . . there is widespread non-compliance." 92 N.J. 198-99, 456 A.2d 410. The
court, however, declared itself "more firmly committed to the original Mount Laurel doctrine than
ever, and . . . determined, within appropriate judicial bounds, to make it work." /d. Within a year of
Mt. Laurel II, public debate had turned to how and who should control and bear the costs for the
required low income housing construction. See Sullivan, Builders Assail Kean on Mt. Laurel Stand,
N.Y. Times Jan. 20, 1984, at XI: 1, col. 1. While the case itself is certainly controversial, the construction of substantial housing is assumed, and the implementation problems are receiving great attention from the state legislators as well as social science researchers at Rutgers and Princeton. See
Oser,Jerst'} Town Faces Mt. Laurel Mandate, N.Y. Times, Jan. 20, 1984, at VIII: 7, col. 1.
83. The breadth of the right declared-even if not fully remedied by the judiciary-may expand
what state and federal courts see as permissible majoritarian remedies authorized by § 5 of the Fourteenth Amendment, by the spending powers clause, and by state legislatures. Conversely, federal
courts should permit Congress (under § 5 of the Fourteenth Amendment) and state courts to expand
protection of constitutional rights to their full measure, where previous constitutional rulings had been
limited because of concern for judicial competence and not because the federal courts had expressed
the outer limits of the constitutional norm. See Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1213 (1978). This Note shares a fundamental conception expressed by Professor Sager: Where institutional concerns cause federal courts to
narrow constitutional rights, the breadth of constitutional rights should not be seen as coterminous
with federal judicial enforcement. Unlike this Note, however, Sager presents the federal judiciary as
reactive. After Congress or state courts act to broaden constitutional rights, Sager suggests that the
Supreme Court can justify its deference by recognizing, post-facto, that a gap had previously existed
between the breadth of the constitutional norm and federal judicial enforcement. Jd. at 1239-40,
1247-50. If a gap exists, however, why should an independent judiciary not take the initiative and
define the full right? Sager may be implicitly contending that despite the Supreme Court's role as
final arbiter, "Congress and state courts [may help] to shape elusive constitutional norms at their
margins." Jd. at 1264. Nonetheless, the failure to act first may serve to legitimize a condition at odds
with constitutional norms. See Wright, supra note 8.
84. While Title VII of the Civil Rights Act of 1964 is the landmark legislation that outlawed
employment discrimination, see Pub. L. No. 88-352, 78 Stat. 241 (1964), a gap between the right and
its enforcement existed after the act's passage. The Equal Employment Opportunity Act of 1972
sought to address this problem by giving the Equal Employment Opportunity Commission enforce-
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In Los Angeles Department of Water and Power v. Manhart, 86 the
Supreme Court declared differential pension contributions by sex violative
of Title VII, while denying retroactive relief. Make-whole relief, according to the Court, might involve fifty million workers and $400 billion of
retirement reserves. 88 Whether or not such worst-remedy fears were valid,
the Court, by bifurcating its decision, declared a powerful prospective
right that altered public perspectives and fueled the processes that led to
national legislation in 1984. 87
D.
Bifurcation and Value Formation
Disputes over ideals often mask concern over the burdens or benefits
the realization of those ideals would have on the self-interest of existing
parties. 88 When the Supreme Court restrictively defines rights in times of
remedial resistance or impracticability, it allows one majority's resistance-or cost-benefit decision-to limit the societal visions and constitutional ideals passed on to future generations. 88 Conversely, by stressing
ment powers and by expressly giving judges more flexible remedial powers. Set Pub. L. No. 92-261,
86 Stat. 103 (codified at 42 U.S.C. § 2000e-1 (1976)). The right declared in 1964 created pressure for
these broader remedial measures which would have had little chance of passage in 1964. The Conference Report in 1972 read:
Despite the commitment of Congress to the goal of equal employment opportunity for all
citizens, the machinery created by the Civil Rights Act of 1964 is not adequate.
Despite the progress which has been made since passage of the Civil Rights Act of 1964,
discrimination against minorities and women continues. The persistence of discrimination, and
its detrimental effects require a reaffirmation. of our national policy of equal opportunity in
employment. It is essential that seven years after the passage of the Civil Rights Act of 1964,
effective enforcement procedures be provided the Equal Employment Opportunity Commission
to strengthen its effort to reduce discrimination in employment.
H.R. REP. No. 238, 92d Cong., 1st Sess. (1971), reprinted in 1972 U.S. CoDE CoNG. & AD. NEws
2139.
85. 435 U.S. 702 (1978). Manhart was the first major litigation effort to challenge differential
pension contributions based on the longer lifespan of women. Set Manhart v. Los Angeles Dep't of
Water and Power, 652 F.2d 904, 908 n.3 (9th Cir. 1981) (liberal award of attorneys fees based partly
on risk taken by lawyers because "case was the first to challenge pension contribution [sex] differences"). Justice Stevens was clearly concerned that full retroartive relief might penalize pension managers and investors who had no reason to believe they were violating the spirit or law of Title VII.
Rather than avoid a broad right-declaration in order to minimize his worst-remedy concerns, Stevens
declared a right to sex-neutral pension contributions and relied on the grant of equitable discretion
under Title VII to deny retroactive relief for those particular claims. Set 435 U.S. at 723 ("Without
qualifying the force of the Albermarle presumption in favor of retroactive relief, we conclude it was
an error to grant such relief in this case.").
86. 435 U.S. at 721.
87. Retirement Equity Act of 1984, Pub. L. 98-397, 98 Stat. 1426.
88. See generally J. RAWLS, A THEORY OF JusTICE 136-42 (1971) (discussing the contemplation
of justice from a "veil of ignorance").
89. There is much agreement that courts have a strong impact on societal ideals. Set, e.g., A.
Cox, THE WARREN CouRT 27 (1968) ("The Court is often the voice of the national conscience. The
justices shape, as well as express, our natural ideals. Brown v. Board of Education restated the spirit
of America and lighted a beacon of hope for Negroes at a time when other governmental voices were
silent.").
The assertion that non-coercive judicial words can affect values and political and legal developments
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equal protection ideals even when there is an unwillingness to bear reme- I
dial costs, the Court may affect the conscience and consciousness of future
generations and influence them to address any continuing legacy of slavery
and caste segregation. 90
Judicial-especially Supreme Court-proclamations do not affect only
the majority's values and world views. The dispensation of such symbols
may strongly affect the degree of recognition and community a disadvantaged minority group feels with the society at large! 1 The monopolization
of such symbols by an effective majority may enhance, if not create, the
self-perception of powerlessness!2 In his classic novel, Invisible Man,
Ralph Ellison illuminated for American society that the pain felt by minorities came not only from economic disadvantage and discrimination,
but also from the frustration of having their identity, problems, and concerns go unrecognized, unacknowledged-invisible-by the society that
surrounds them!8
Brown I at least broke the barrier of constitutional invisibility: The
equal protection clause was no longer blind to the social reality of black
Americans. The recognition of one's rights, of course, may lead to rising
expectations, and rising frustration where a remedial gap exists. Apologists for the status quo may thus be wary of both creating and legitimizing
expectations they are unwilling or unable to fulfill. Conflict and tension
is hardly novel. Dissents and concurrences represent non-coercive judicial words that have at times
had significant societal and legal impacts.
90. Law school initially grinds the legal and constitutional lenses through which most lawyers,
and many politicians and policymakers, see social reality. The law student enters her first year with
pre-existing opinions about what is good or bad, but quickly begins to learn which things are legally
cognizable. Students studying the major segregation cases discover the following memorizable lesson:
Racially identifiable school districts are not constitutionally wrong unless the inhabitants can prove
that the racially motivated acts of panicular school officials caused their isolated status.
Imagine instead that law students learned that couns held racial containment in several inner cities
to violate the Constitution, but that few states had proffered adequate remedies. Racial ghettoization,
instead of being legitimated through law, would instead invoke the perception of a constitutional
gap-a gap striking at the integrity of the student's profession. Right-declaration can determine
whether racial ghettoization is seen as a constitutional non-issue or as a compelling remedial challenge
to all those concerned either with the substantive goals of the equal protection clause or with the
necessity that a society founded on the rule of law provide remedial justice.
91. Cf P. BACHRACH 8t M. BARATZ, PowER AND PovERTY 8 (1970) ("[T]o the extent that a
person or group-consciously or unconsciously-creates or reinforces barriers to the public airing of
policy conflicts, that person or group has power."); E. SCHAITSCHNEIDER, THE SEMI-SoVEREIGN
PEOPLE 71 (1960) ("Some issues are organized into politics, while other issues are organized out.");
M. EDELMAN, THE SYMBOLS or PoLITICS (1964).
92. Stt J. GAVENTA, PowER AND PowERLESSNESS 15 (1980) ("(T]he means through which
power influences, shapes, or determines conceptions of necessities, possibilities, and strategies . . .
may include the study of social myths, language and symbols, and how they are shaped or manipulated in power processes . . . . It may involve a focus upon the means by which social legitimations
are developed . . . . ").
93. Stt R. ELLISON, INVISIBLE MAN 4 (1947). ("You ache with the need to convince yourself
that you do exist in the real world, that you're a pan of all the sound and anguish, and you strike out
with your fists, you curse and you swear to make them recognize you. And alas, it's seldom
successful.").
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will be inevitable. Yet refusing to recognize injustice because its admission
may energize a victim to seek his justice is an inappropriate response for
an independent judiciary. Remedying the effects of long-term discrimination will of course bring forth tension, but as Justice Blackmun wrote in
Bakke, such "tension is original Fourteenth Amendment tension, constitutionally conceived and constitutionally imposed, and it is part of the
Amendment's very nature until complete equality is achieved." 94
IV.
BIFURCATION AND jUDICIAL LEGITIMACY
The Bill of Rights and Article III of the Constitution reflect the
Framer's desire to ensure that neither individuals nor unpopular minorities could be deprived of their rights simply by majority will. 95 The need
for an independent judiciary to protect constitutional rights from political
whims and majoritarian hostility has proven to be especially critical for
discrete and disadvantaged minorities." For while the protection of one
individual's free speech protects all citizens' rights to utter unpopular
views, such universal self-interest does not exist to check majorities from
continually disadvantaging minorities and outgroups. 97
The structural relief necessary to remedy entrenched discrimination,
however, poses threats to the independent judicial protection of minority
rights. Structural relief is often dependent on the acquiescence of
majoritarian institutions that are both responsible for past violations and
yet in control of the police powers necessry to enforce a judicial decree. A
court's heightened vulnerability to the political branches in enforcing its
94. University of Cal. Regents v. Bakke, 438 U.S. 265, 405 (1978) (Biackmun, J., separate
opinion).
95. See THE FEDERALIST No. 78, at 508 (E. Earle ed. 1937) ("This independence of the judges
is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill
humors, which . . . have a tendency . . . to occasion . . . serious oppressions of the minor party in
the community."). This judicial function was given heightened importance in the twentieth century.
See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (courts should apply a more
"searching judicial inquiry" to protect "discrete and insular minorities."). Stt generally J. ELY, DEMOCRACY AND DISTRUST (1980) Gudicial review should cleanse political process of majoritarian
abuses against minorities).
96. Leading commentators have always recognized that a vital role of our independent federal
judiciary is to transcend times of political passion to protect important values. See, e.g., A. BICKEL,
supra note 2, at 26 ("Their insulation and their marvelous mystery of time gives courts the capacity
to appeal to men's better natures, to call forth their aspiration, which may have been forgotten in the
moment's hue and cry."); C. BLACK, THE PEOPLE AND THE CouRT 107 (1960) (federal courts are
"the people's institutionalized means of self-control"); see also Wellington, The Nature of judicial
Review, 91 YALE L.J. 486, 493 (1982) ("Because they often deflect the momentary passions of the
majority, countermajoritarian political forces may well provide protection for longer range concerns in
politics.").
97. Both the United States Civil War and fascism in Europe increased American awareness of the
dangers of unconstrained majoritarianism where the interests of identifiable minorities are involved.
See Cover, The Origins ofjudicial Activism in the Protection of Minorities, 91 YAI.E L.J. 1287, 1289
(1982) (In "age of Hitler," majoritarianism requited greater justification).
1760
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Judicial Right Declaration
remedial decrees, however, must not constrain consideration of the right.
Because such remedial dilemmas arise in direct proportion to both the
depth of past wrongs and past remedial inadequacy, such tensions are an
inappropriate reason for an independent judiciary to narrow or deny constitutional rights.
Countering the case for bifurcation, however, is the claim that bifurcation would destroy judicial legitimacy by encouraging decrees that would
be subject to noncompliance and ultimate nonenforcement. While issuing
decrees poses some threat to judicial legitimacy, constrained rightdeclaration poses a greater threat. To alter judicial declarations of individual or minority rights because of majoritarian or political pressures is to
abdicate fundamental judicial responsibility within the constitutional system.98 A refusal of the majority to close the gap between rights and remedy speaks primarily to the lawfulness and legitimacy of the society, not
necessarily to the legitimacy of an independent judiciary. Writes Dean
Jesse Choper, "Acceptance is not the Court's responsibility, but the obligation of the people; execution not its onus, but the duty of political
branches. " 99
Bifurcation poses another potential danger. However formalistic the obligation to match full remedies to declared rights may be, that obligation
pressures judges to seek the actualization of the results they declare to be
just. Bifurcation could legitimize weak or insufficient remedies. Several
responses to this challenge should be considered.
First, the Supreme Court has, when faced with undesirable remedial
cases in the last fifteen years, retracted rights, which obviously results in
an inadequate remedy. If remedial inadequacy is the constant under both
frameworks, then bifurcation at least offers the benefits of rightdeclaration.100 Second, bifurcation does not necessarily lead to narrower or
98. See Stone, The Common Law in the United States, 50 HARV. L. REv. 4, 25 (1936) (special
role of courts is to provide "the sober second thought of the community"); A. BICKEL, supra note 2, at
24 (courts are "the pronouncer[s] and guardian[s] of such values"). One of the few dialogues on the
legitimacy of gaps, however, took place in The New Republic when Bickel criticized Judge Skelly
Wright for making a judicially unenforceable right-declaration in a Washington, D.C. segregation
case. Bickel, Slrelley Wright's Sweeping Decision, THE NEW REPUBLIC, July 8, 1967, at 11-12.
Michael Tigar came to Wright's defense in a response the next month:
Professor Bickel's error is in assuming that a judge cannot denounce the conduct of litigants
unless he is able to provide a complete remedy. As Professor Bickel's own writings have wellrecognized, however, one great purpose of revoluntionary judicial utterance-like Brown v.
Board of Education-is to set at large with official imprimatur ideas which have theretofore
gone unspoken. This honatory function of judging serves at times to legitimize struggle elsewhere in society to attain the ends put into practice the ideas first set out by judges. Cenainly
this has been one salutary effect of Brown.
Tigar, In Defense of Sully Wright, THE NEw REPUBLIC, Aug. 5, 1967, at 43.
99. j. CHOPER, jUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 168 (1980); Stt
also Marbury v. Madison, 1 Cranch 137 (1803) ("It is emphatically the province and duty of the
judicial department to say what the law is.").
100. In determining the effect that bifurcation will have on remedies delivered to minority plain-
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Vol. 94: 1741, 1985
broader remedies. Bifurcation simply separates consideration of the right.
from that of the remedy, to protect agreement on the right from the inappropriate influence of remedial fears. Third, judges who unnecessarily
deny effective remedies, 101 as well as judges who order massive, wideranging remedies, will be subject to judicial review and developing standards for judicial discretion in different contexts. Judges will still be obligated to actualize justice to the best of their abilities. Judges that leave a
right-remedy gap 101 will be forced candidly to articulate the balancing
considerations that led to their remedial order, so that courts, scholars,
and the public can review them. 108
Fourth, where intense political and economic strains are associated with
tiffs, ont must look not to tht difftrmct bttwtm right and rtmtdy, but rathtr to tht difftrtnct
bttwttn rtmtdits dtlivtrtd in a biforcattd dtcision and rtmtdits givm in a unifod dtcision. Stt
supra note 7 (discussion of bifurcation in Brown). If remedial costs are the core conflicts, and a judge
is willing in a bifurcated analysis to deliver-on a scale from one to ten-a ·~n" right and a "five"
remedy, but in a unified approach only a "five" for both, then the gap resulting from bifurcation
represents a broader right-declaration, not a cheaper remedy.
101. While this Note has focused on the judicial decisionmaking process, its thesis is also relevant
to the legal strategies of lawyers. A lawyer bringing a comparable worth case, for example, may fear
that her claimed violation is so broad that the relief would be unmanageable. Instead of narrowing her
claim so as to make the necessary relief plausible to the court, the lawyer might stress to the court
that, considering the novel and important nature of the case, the court should bifurcate its considerations and focus exclusively on the right at the first stage. While such a sharp bifurcation may give the
court room to leave a right-remedy gap, a lawyer might still push for this where she feels the violation
may be narrowed or denied due to remedial concerns, and where the right-declaration itself may have
positive political and societal ramifications. Stt supra text accompanying notes 85-86 (discussion of
Manhart).
Such strategies have not been unfamiliar in worst-remedy school cases. In San Antonio Indep.
School Dist. v. Rodriquez, 41 t U.S. 1 (1972), plaintiffs Motion to Affirm explicitly sought a bifurcated opinion:
In the present case, the Plaintiffs seek merely to enjoin a system that denied them equal protection of the laws. . . . The state is left to choose among a variety of systems . . . Since many
legislatures are enacting public school education systems to meet State and lower Federal
Court decisions future determination will give the Court greater opportunity to view the effect
of the relief sought.
/d. at 11.
102. Another significant danger in requiring right-remedy matching is not simply that judges will
narrow rights, but that judges unwilling to deliver controversial remedies will develop standing requirements, stt Warth v. Seldin, 422 U.S. 490 (1975), or evidentiary requirements, stt Arlington
Heights v. Metropolitan Hous. Corp., 429 U;S. 252 (1978), that will lead to the refusal to declare
any violation at all. Stt Note, Making tht Violation Fit tht Rnntdy: Tht /ntmt Standard and Equal
Prottction Law, 92 YALE L.J. 328 (1982) (controversial voting rights remedies encouraged intent
standard for fundamental rights case); stt also Note, Discriminatory Purpost and Mtns Rta: The
Torturtd Argumtnt of Invidious lntmt, 93 YALE L.J. ttl, 134 (1983) (lack of candid remedial
balancing responsible for development of highly restrictive intent standard).
103. Candor over the substantive visions encompassed in right-declarations also enhances societal
understanding of the values and value conflicts that characterize a constitutional provision. In fact, our ·
current understanding of the equal protection clause is partly informed by our rejection of the values
candidly condoned in Plessy v. Ferguson, 163 U.S. 537 (1896) (state-fostered racial separation intended to be neither stamp of second-class citizenship nor fit subject for law), and Bradwell v. Illinois,
83 U.S. (16 Wall.) 130, 141 (1873) (Bradley, J., concurring) (denial of license to practice law because
"paramount destiny and mission of womanhood are to fulfill the noble and benign offices of wife and
mother."). Stt Gewirtz, supra note 6, at 670 (making strong argument that candor protects broader
rights in anti-discrimination law).
1762
�Judicial Right Declaration
complete remedies, tendencies may exist for judges to alleviate dissonance104 provoked by a right-remedy gap, by narrowing the right to
match the remedy. Bifurcation could serve as an internal check on the
judiciary to insure that such dissonance leads· to confrontation-and not
legitimation-of pervasive constitutional wrongs. 101
Finally, remedial obstacles tend ultimately to find their origin in past
discrimination. Even if a parent opposed busing or redrawing school district lines on non-racist grounds, that opposition to particular remedies is
nevertheless linked to effective desegregation by past state policies that
originally fostered the segregation and the need for remedies. The severity
of even legitimate obstacles to effective desegregation will be proportionate
to the effectiveness of past discrimination in physically and psychologically
separating the races. To retract-even slightly-the right at stake because
of such obstacles, serves to perpetuate the power of past discrimination in
the guise of alleviating it. Where the wrong is deep enough, and if rightremedy matching is required, social reality will almost compel a discriminatory jurisprudence of anti-discrimination law. 106 Bifurcation allows
104. See L. Ft:.'i'I'INGt:R, 1\ THt:nRY or CoGNITIVE DISSONANCE 3 (1962) ("The existence of
dissonant-e. being psychologically unmmfortable, will motivate the person to try to reduce the dissonanl:e and a<~hieve mnsonance."). Notably the first example in this book is "(a) person may think
NegnteS are just as good as whites but would not want any living in his neighborhood." /d. at t.
Festinger also rites Myrdal's An American Dilemma as a "good statement of some of the reasons why
strong dissonanl'e exists in this area." ld. at 7. In light of the Supreme Court's continued refusal to
mnsider the housing discrimination found 'by the trial courts in recent segregation cases, it is worth
noting thai the second half of Festinger's basic hypothesis is that "the penon will actively avoid
situations and information which would likely increase dissonance."
105. Professor Gewirtz advocates a position with which this Note is in agreement: Rightdedaration can ultimately serve the ideal value at stake. Set Gewirtz, supra note 6, at 670-74.
Gewirtz' article, however, admiuedly assumes that the right will remain static regardless of the contemplated remedy. ld. at 593 n.t7. Under this assumption, Gewirtz' willingness to have a judge
shuule ba1·k and forth between right and remedy seems reasonable. ld. at 679. This Note contends,
however, that the very crux of the post-Swann cases has been the negative, backwards dynamism
between the remedy and the right. Where a court is dependent on a hostile majority for the implementation of a mrrective structural remedy, the tendencies to narrow rights will often be powerful. In
rejecting Owen Fiss' discussion of bifurcation, id. at 677-80, Gewirtz gives far too little attention to
the role that bifurcation may play as an institutional mechanism to check both against the compromising of judkial independence and against the potential for judicial dissonance to be soothed by contrafting the right to fit the remedy.
Bet·ause Gewirtz seems to desire a powerful role for right-declaration in the face of remedial crisis,
it is surprising that he never adequately discusses whether bifurcation may be the best judicial policy
to a<·hieve su1·h objectives. Instead, he tells us only that judicial legitimacy problems "cannot be
solved" by bifurcation. ld. at 679-80 (emphasis added). Yet neither Fiss, nor this Note, contend that
bifurcation !'an solve all problems of judicial legitimacy in the way a new medical discovery cures a
disease. In fact, the thrust of Fiss' discussion, set Fiss, supra note 3, at 51-58, is that the problem of
remedial implementation and judicial independence is a mre dilemma that defies ultimate solution but
must he resolved as well as possible. Ultimately, bifurcation as advocated in this Note would best
facilitate the role of law that Gewirtz advocates elsewhere in his article. Set Gewirtz, supra note 6, at
587-95, 665-74.
106. This tendency for remedial obstades for minority rights to be linked to past discrimination
justifies a strict t'Ont-eptual bifurcation to prevent inappropriate remedial factors from tugging at and
restricting the right. But set Gewirtz, supra note 6, at 676 ("IJ)udges may take account of . . . even
1763
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The Yale Law Journal
equal protection ideals to survive remedial obstacles, and in turn, to generate a climate that inspires society to confront and conquer them.
In analyzing the strains that segregation places upon the judiciary, it
too often goes unrecognized that such cases revolve in an arena of societal
illegitimacy: an illegitimacy that exists where the effects of state-fueled
discrimination persist in a society committed to equal justice under law.
From this perspective, analysis of judicial legitimacy gains a clearer focus:
The task becomes not simply to count flaws in specific judicial proposals,
but to ask what is the most legitimate-or least detrimental-role107 for
our judiciary to play in confronting this pre-existing societal dilemma.
CONCLUSION
In 1883, the political realities that had inspired both the Civil War
Amendments and the legislative efforts to assist the freed slaves took a
tum for the worse. The 1875 Civil Rights Act had lost popular support,
and in the Civil Rights Cases 108 of 1883, the Supreme Court overturned
the Act, claiming Congress lacked the power to outlaw racial discrimination in public accommodations. Shortly after the decision, :Frederick
Douglass said at a Civil Rights Mass-Meeting:
It is said that this decision will make no difference in the treatment
of colored people; that the Civil Rights Bill was a dead letter, and
could not be enforced. There is some truth in all this, but it is not
the whole truth. That bill, like all advanced legislation, was a banner on the outer wall of American liberty, a noble moral standard,
uplifted for the education of the American people. There are tongues
in trees, books, in the running brooks,-sennons in stones. This law,
though dead, did speak. It expressed the sentiment of justice and fair
play, common to every honest heart. Its voice was against popular
prejudice an_d meanness. . . . It told the American people that they
were all equal before the law; that they belonged to a common country and were equal citizens. The Supreme Court has hauled down
this flag of liberty in open day . . . . It is a concession to race pride,
selfishness and meanness, and will be received with joy by every upholder of caste in the land, and for this I deplore and denounce that
decision. 108
resistance at the right-declaring stage as part of the cluster of factors that influence . . . rights").
107. This tennis borrowed from J. GoLDSTEIN, A. FREUD & P. SoLNJT, BEYOND THE BEST
INTitRESTS or THE CHILD 6 (1973). The authors favor this tenn in cases of child abuse so that the
decisionmaker fully appreciates that he or she is confronting an unavoidably negative situation. ld. at
53-64. The advantage of this perspective for judicial review of entrenched discrimination is to deter
the rejection of judicial policies because they are imperfect instead of because a less detrimental theory
exists.
108. 109 u.s. 3 (1883).
109. 4 P. FoND, THE LIFE AND WRmNGS OF FREDERICK DouGLASS 401 (1955). Com!JGu
1764
�Judicial Right Declaration
Thirteen years later, the moral and constitutional standard for equality
for over a half-century was set in Plessy v. Fergwon. 110
-Gene B. Sperling
with Giles v. Harris, 189 U.S. 475, 488 (1902} (Holmes, J.) (in case involving attempt of Alabama
state legislature to disenfranchise black voten, jurisdiction refused because ''the great mass of the
white population intends to keep the blacks from voting ... [and) ... a name on a piece of paper
will not defeat them . . . . [R)elief from a great political wrong, if done, as alleged, by the people of a
state and the State itself, must be given by them or by the legislative and political department of the
government of the United States."). S11 supra note 75.
110. S11 G. MYRDAL, supra note 43, at 30, 46 (1944):
[I)t was a not unusual experience of the writer to be told ... by the learned ... [and) ...
by the laity, that there is 'no Negro problem' in America .... In the big cities where the
greater part of the total Northern Negro population lives, the whites are protected from getting
the Negro problem too much on their minds by . . . the spatial segregation of racial, ethnic,
and economic groups . . . .
S11 Herben, ClftiW Da14 R1111al 70's Llpt:J: Poortr Cilils and Rit:htr Suburbs, N.Y. Times, Feb.
27, 1983, at t, col. 2 (U.S. Census show inner cities becoming increasingly poor and increasingly
concentrated with minorities); Rohatyn, Catehing Up, N.Y. Times, jan. 20, 1985, at E5, col. 5
("Clearly, you have io try to break down the ghetto structure .... [and the) racial aspects to these
problems .... You know, everybody talked about city problems tO yean ago. Today you never hear
it. It's as if they didn't exist anymore.").
1765
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so the feeling chat some kind of repayment was truly in order. This was the
moral logic chat followed inevitably from che new consensus. But it led to an
even simpler logic: if blacks hiid been oppressed collectively, that oppression
would now be redressed by entitling them collectively. So here we were again,
in che name of a thousand good intentions, falling away from the hard chal·
lenge of a democracy of individuals and embracing the principle of collective
t!ntidement chat had so corrupted the American ideal in the first place. Now
this old sin would be applied in the name of uplift. And chis made an easy sort
of sense. If it was good enough for whites for three hundred years, why not lee
blacks have a little of it to gee ahead! In the context of the Sixties-black out·
rage and white gUilt-a principle l!Ye had JUSt decided was evil for whites was
redefined as a social good for blacks. And once the fonnula was in place for
blacks, it could be applied to ocher groups with similar grievances. By che 1970s
more than 60 percent of the American population-not
only blacks but Hispanics, women, Asians-would come
under the collective entitlement of affinnative action.
Sou DARITY No LONGER
MEANS THE RALLYING OF DIVERSE
PEOPLES BCT THE RALLYING
OF PEOPLE WITHIN A GRIEVANCE
-
GROUP TO PURSUE THEIR OWN
G ROUP ENTITLEMENT
I
I
n the early days of the civil rights movement, the concept of solidar·
icy was essentially a moral one. That is, all people who believed in human
freedom, fairness, and equality were asked to form a solid front against
white entitlement. But after the collaboration of black rage and white guilt
made collective entitlement a social remedy, the nature of solidarity changed.
It was no longer the rallyin~ of diverse peoples to breach an oppressive
group entitlement. It was the very opposite: a rallying of people within a
grievance group to pursue their own group entitlement. As early as the
mid-Sixties, whites were made unwelcome in the civil rights movement, just
as, by the mid-Seventies, men were no ionger welcome in the women's
movement. Eventually, collective entitlement always requires separatism. And
the irony is obvious: those who once had been the victims of separatism, who
had sacrificed so dearly to overcome their being at the margins, would lat·
er create an ethos of their own separatism. After the Sixties, solidarity be·
came essentially a separatist concept, an exclusionary principle. One no longer
heard words like "integration" or "hannony"; one heard about "anger" and
"power." Integration is anathema to grievance groups for precisely the same
reason it was anathema to racist whites in the civil rights era: because it threat·
ens their collective entitlement by insisting chat no group be entitled over
another. Power is where it's at today-power to set up the organization, at·
tract the following, run c'he fiefdom.
But it must also be said chat this could not have come ·co pass without the
cooperation of the society at large and its institutions. Why did the gov·
emment, the public and private institutions, the corporations and foundations, end up supporting principles that had the effect of turning causes into
sovereign fiefdoms! I chink the answer is that those in charge of America's
institutions saw the institutionalization and bureaucratization of the protest
movements as ultimately desirable, at lease in the short term, and the fund·
ing of group entitlements as ultimately a less costly way to redress grievances.
The leaders of the newly sovereign fiefdoms were backing off from earlier
demands that America live up to its ideals. Gone was the moral indictment.
Gone was the call for difficult, soulful transfonnation. The language of en·
titlements is essentially the old, comforting language of power politics, and
in the halls of power it went down easily enough.
With regard to civil rights, the moral voice of Dr. King gave way to the
demands and cajolings of poverty-program moguls, class-action lawyers,
and community organi:ers. The compromise that satisfied both political par·
ties was to shift the focus from democracy, integration, and developmental
uplift to collective entitlements. This satisfied the institutions because en·
titlements were cheaper in every way than real change. Better to set up black·
studies and women's·studies departments than to have wrenching debates
within existing departments. Better to fund these new institutions clamor·
ing for money because who knows what kind of fuss they'll make if we tum
ESSAY
53
�•
THE NEW SOVEREIGNTY
IS ULTIMATELY ABOUT VANITY.
IT IS THE NARCISSISM OF VICTIMS,
AND IT BRINGS ONLY A
NEGLIGIBLE POWER
down their proposals. Better to pass laws permitting Hispanic students to get
preferred treatment in college admission-it costs less than impro\'ing
kindergartens in East Los Angeles.
And this way to uplift satisfied the grievance-group "experts" because it
laid the ground for their sovereignty and permanency: You negotiated With
us. You funded us. You shared power, at least a bit of it, with us.
This negotiation was carried out in a kind of quasi-secrecy. Quotas, set·
asides, and other entitlements were not debated in Congress or on the campaign trail. They were implemented by executive orders and E~.Jual
Employment Opportunity Commission guidelines without much public
scrutiny. Also the courts played a quiet but persistent role in'supponing these
orders and guidelines and in fun her spelling out their application. Univer·
sities, corporations, and foundations implemented their own grievance entitlements, the workings of which are often kept from the public.
Now, it should surprise no one that all this entitlement has most helped
those who least need it-white middle-class women and the black middle
class. Poor blacks do not guide the black grievance groups. Working-class
women do not set NOW's agenda. Poor Hispanics do not clamor for bilin·
gualism. Perhaps there is nothing wrong with middle-class people being
helped, but their demands for entitlements are most often in the name of
those less well off than themselves. The negotiations that settled on enti·
dements as the primary form of redress after the Sixties have generated a
legalistic grievance industry that argues the interstices of
entitlements and does very little to help chose truly in
need.
I
n a liberal democracy, collective entitlements based upon race, gender,
ethnicity, or some other group grievance are always undemocratic expedi·
ents. Integration, on the other hand, is the most difficult and inexpedient
expansion of the democratic ideal; for in opting for integration, a citizen de·
nies his or her impulse to use our most arbitrary characteristics-race, eth·
nicity, gender, sexual preference-as the basis for identity, as a key to status,
or for claims to entitlement. Integration is twentieth-century America's
elaboration of democracy. It eliminates such things as race and gender as op·
pressive barriers to freedom, as democrats of an earlier epoch eliminated re·
ligion and property. Our mistake has been to think of integration only as a
utopian vision of perfect racial harmony. r think it is better to see integra·
tion as the inclusion of all citizens int'o the same sphere of rights, the same
range of opponunicies and possibilities chat our Founding Fathers themselves
enjoyed. Integration is not social engineering or group entitlements; it is a
fundamental absence of arbitrary barriers to freedom.
If we can understand integration as an absence of barriers that has the effect of integrating all citizens into the same sphere of rights, then it can serve
as a principle of democratic conduct. Anything that pushes anybody out of
this sphere is undemocratic and must be checked, no matter the good in·
tentions that seem to justify it. Understood in this light, collective entitle·
ments are as undemocratic as racial and gender discrimination, and a group
grievance is no more a justification for entitlement than the notion of
white supremacy was at an earlier time. We are wrong to think of democ·
racy as a gift of freedom; it is really a kind of discipline that avails freedom.
Sometimes its enemy is racism and sexism; other times the enemy is our ex·
pedient attempts to correct these ills.
I think it is time for those who seek identity and power through grievance
groups to fashion identities apan from grievance, to grant themselves the
widest range of freedom, and to assume responsibility for that freedom. Vic·
timhood lasts only as long as it is accepted, and to exploit it for an empty
sovereignty is to accept it. The New Sovereignty is ultimately about vani·
ty. It is the mucissism of victims, and it brings only a negligible power at the
exorbitant price of continued victimhood. And all the while integration re·
mains the real work.
•
..
54
HARPER'S MAGAZINE I JULY 1992
�'
E
s
s
y
A
THENE\\T
SO\TEREIGNTY
Grievance groups
have become nations unto themselves
By Shelby Steele
T.ro
the end of' rolk I gave re·
ccntly at a large Midwestern university I noticed a distinct tension in the
audience. All respectful audiences are quiet, but I've come co understand chat
v.ihen there is disagreement with what's being said at the podium the silence
can become pure enough to constitute a statement. Fidgeting and whisper·
ing cease, pencils stay still in notetakers' hands--you sense the quiet filling
your pauses as a sign of disquiet, even resistance. A speaker can feel gangedup on oy such a silence.
1 had gotten myself into this spot by challenging the orthodoxy of diversity
that is now so common on university campuses--not the notion of diversi·
ty, which I wholly subscribe to, but the rigid means by which it is pursued.
I had told the students and faculty members on hand that in the lace 1960s,
without much public debate but with many good intentions, America had
embarked upon one of the most dramatic social experiments in its history.
The federal government, radically and officially, began to alter and expand
the concept of entitlement in America. Rights to justice and to government
benefits were henceforth to be extended not simply to individuals but to
racial, ethnic, and other groups. Moreover, the essential basis of all enti·
dement in America-the guarantees of the Constitution-had apparent·
ly been found wanting; there was to be redress and reparation of past
grievances, and the Constitution had nothing to say about that.
I went on to explain that Martin Luther King and the early civil rights
leaders had demanded only constitutional rights; they had been found want·
ing, too. By the late Sixties, among a new set of black leaders, there had de·
veloped a presumption of collective entitlement (based on the redress of past
grievances) that made blacks eligible for rights beyond those provided for
in the Constitution, and thus beyond those afforded the nation's non-black
citi:ens. Thanks to the civil rights movement, a young black citizen as well
as a young white citizen could not be turned away from a college because
of the color of his or her skin; by the early Seventies a young black citizen,
Sh.!Urv Steele has written a numM of essa,s on race for Harper's Magazine. They can be
fourul in his book The Con rent of Our _Character (paper, HarperCoUins'.
ESSAY
4i
�IN AMERICA TODAY,
SOVEREIGNTY-THAT IS, THE
.POWER TO ACT AUTONOMOUSLYIS BESTOWED UPON ANY GROUP
ABLE TO CONSTRUCT ITSELF
AROUND A PERCEIVED GRIEVANCE
48
HARPER'S MAGAZINE I JULY 1992
poor or wealthy, now qualified for certain grants and scholarships-might
even be accepted for admission-simply because of the color of his or her
skin. I made the point that this new and rather unexamined principle of collective entitlement had led America to pursue a democracy of groups as well
as of individuals-chat collective entitlement enfranchised groups just as the
Constitution enfranchised indi\"iduals.
It was when I introduced a concept I call the New So\"ereignty that my
audience's silence became most audible. In America today, I said, sovereign·
ty-that is, power to act autonomously-is bestowed upon any group that
is able to construct itself around a perceived grievance. With the concept
of collective entitlement now accepted not only at the federal level but ca·
sually at all levels of society, any aggrieved group-and, for that matter, any
assemblage of citizens that might or might not have previously been thought .
of as such a group--could make its case, attract attention and funding, and
build a constituency that, in rum, would increase attention and funding. Soon
this organized group of aggrieved citizens would achieve sovereignty, func·
tioning within our long-sovereign nation and negotiating with that nation
for a separate, exclusive set of entitlements. And here I pointed to Ameri·
ca's university campuses, where, in the name of their grievances, blacks, wom·
en, Hispanics, Asians, Native Americans, gays, and lesbians had hardened
into sovereign constituencies that vied for the entitlements of sovereigntyseparate "studies" departments for each group, "ethnic" theme dorms, pref·
erential admissions and financial-aid policies, a proportionate number of
faculty of their own group, separate student lounges and campus centers, and
so on. This push for equality among groups, I said, necessarily made for an
inequality among individuals that prepared the ground for precisely the
racial, gender, and ethnic divisiveness that, back in the Sixties, we all said
we wanted to move beyond.
At the reception that followed the talk I was approached by a tall, ele·
gant woman who introduced herself as the chairperson of.the women's·
studies department. Anger and the will to be police were at war in her face
so that her courteous smile at times became a leer. She wanted to "inform"
me that she was proud of the fact that women's studies was a separate department unto itself at her university. I asked her what could be studied in
this department that could not be studied in other departments. Take the
case of, say, Virginia Woolf: in what way would a female academic teach·
ing in a women's·studies department have a different approach to Woolf's
writing than a woman professor in the English department? Above her de·
termined smile her eyes became fierce. "You must know as a black that
they won't accept us"-meaning women, blacks, presumably others--"in the
English department. It's an oppressive environment for women scholars. We're
nor taken seriously there." I asked her if chat wasn't all the more reason to
be there, to fight the good fight, and to work to have the contributions of
women broaden the entire discipline of literary studies. She said I was
naive. I said her strategy left the oppressiveness she calked about unchallenged.
She said it was a waste of valuable energy to spend time fighting "old white
males."! said that if women were oppressed, there was nothing to do but fight.
We each held tiny paper plates with celery sticks and little bricks of
cheese, and I'm sure much body language was subdued by the tea-party pos·
cures these plates imposed on us. But her last word was not actually a word.
It was a look. She parodied an epiphany of disappointment in herself, as if
she'd caught herself in a bi:arre foolishness. Of colli'Se, chis KU':J is the enem':J.
He is the very oppressiveness I'm ralking about. How could I have missed it! And
so, suddenly comfoitable in the understanding that I was hopeless, she let
her smile become gracious. Grace was something she could afford now. An
excuse was made, a hand extended, and then she was gone. Holding my lit·
tie plate, I watched her disappear into the crowd.
Today there are more than five hundred separate women's-studies de·
partments or, programs in American colleges and universities. There are
nearly four hundred independent black-studies departments or programs, and
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hundreds of Hispanic, Asian, and Native American programs. Given this
degree of entrenchment, it is no wonder chis woman found our little debate
a waste of her time. She would have had urgent administrative tasks await·
ing her attention-grant proposals co write, budget requests to work up, per·
sonnel matters to attend to. And suppose I had won the debate? Would she
have rushed back co her office and begun co dismantle the women's·stud·
ies department by doling our its courses and faculty to long-standing de·
parcments like English and history? Would she have given her secretary
notice and relinquished her office equipment? I don't think so.
I do think I know how it all came to this-how what began as an attempt
to address the very real grievances of women wound up creating newly
sovt:reign fiefdoms like this women's·studies department. First there was col·
lective entitlement to redress the grievances, which in turn implied a
sovereignty tor the grievance group, since sovereignty is only the formalization
of collective entitlement. Then, since sovereignty requires autonomy, there
had to be a demand tor separate and independent stature within the uni·
versity (or some ocher institution of society). There would have to be a sep·
arate territory, with the trappings that certify ,sovereignty and are concrete
recognition of the grievance identity-a building or suite of offices, a bud·
get, faculty, staff, office supplies, letterhead, ec cetera.
And so the justification for separate women's· and ethnic-studies programs
has virtually nothing to do with strictly academic matters and everything
to do with the kind of group-identity politics in which the principle of col·
lective entitlement has resulted. My feeling is that there can be no full re·
dress of the woeful neglect of women's intellectual contnbutions until those
contributions are entirely integrated into the very departments that neglected
them in the first place. The same is true for America's minorities. Only in·
elusion answers history's exclusion. But now the sovereignty of grievance·
group identities has confused all this.
It was the sovereignty issue that squelched my talk with the women's·stud·
ies chairperson. She came to see me 'as an enemy not because I denied that
women writers had been neglected historically; I was the enemy because my
questions challenged the territorial sovereignty of her department and of the
larger grievance identity of women. It was not a matter of fairness-of justice-but of power. She would not put it that way, of course. For in order
to rule over her sovereign fiefdom it remains important chat she seem to rep·
resent the powerless, the aggrieved. It remains important, too, that my ob·
jection to the New Sovereignty can be interpreted by her as sexist. When
I failed to concede sovereignty, I became an enemy of women.
In our age of the New Sovereignty the original grievances-those hav·
ing to do with fundamental questions such as basic rights-have in large
measure been addressed, if not entirely redressed. But that is of little mat·
ter now. The sovereign fiefdoms are ends in themselves-:.providing career
tracks and bases of power. This power tends to be used now mostly to de·
fend and extend the fiefdom, often by exaggerating and exploiting secondary,
amorphous, or largely symbolic complaints. In this way,
America has increasingly become an uneasy federation of
newly sovereign nations.
·
THE SOVEREIGN FIEFOOMS
(THE NAACP, NOW. AND SO ON)
ARE ENDS IN THEMSELVESPROVIDING CAREER TRACKS
AND BASES OF POWER
I
n The True Believer, Eric Hoffer wrote presciently of chis phenomenon
I have come to call the New Sovereignty:
When a mass movement begins to attract people who are interested in their
indiVidual careers, it is a sign chat it has passed its vigorous stage; that it is no longer
engaged in molding a new world but in possessing and preserving the present. lc
ceases chen to be a movement and becomes an enterprise.
If ic is crue that great mass movements begin as spontaneous eruptions of
long-smoldering discontent, it is also true that after significant reform is
achieved they do not like co pass away or even modify th~ir grievance pos·
cure. The redressing of the movement's grievances wins legitimacy for the
lllustrattons hv Anth<>nv Russo
ESSAY
49
�IN ITS WISDOM THE NAACP
CONTINUES TO THINK THAT
AFFIRMATIVE ACTION IS A BIGGER
PROBLEM FOR BLACK ~v!E!'J AND
WOMEN TH:~N THE
DISINTEGRA.TING BLACK FA~IILY
50
HARPER'S MAGAZINE I JULY
1"'~2
movement. Reform, in this way, also means recognition for those who struggled for it. The movement's leaders are quoted in the papers, appear on TV,
meet with elected officials, write books-they come to embody the move·
ment. Over time, they and they alone speak for the aggrieved; and, of
course, they continue to speak of the aggrieved, adding fresh grievances ro
the original complaint. It is their vocation now, and their means to status
and power. The idealistic reformers thus become professional spokespersons
for the seemingly permanently aggrieved. In the civil rights movement,
suits and briefcases replaced the sharecropper's denim of the early years, and
SSOO-a-plate fund-raisers for the National Association for the Advancement
of Colored People replaced volunteers and picket signs. The raucous bra burning of late-Sixties feminism gave way to women's·studies departments and
direct-mail campaigns by the National Organization of Women.
This sort of evolution, however natural it may appear, is not without
problems for the new grievance-group executive class. The winning of re·
form will have dissipated much of the explosive urgency that started the
movement; yet the new institutionalized movement cannot justify its ex is·
tence without this urgency. The problem becomes one of maintaining a re·
formisr organization after considerable reforms have been won.
To keep alive the urgency needed to justify itself, the grievance organi·
:arion will do three things. First, it will work to inspire a perpetual sense of
grievance in its constituency so that grievance becomes the very centerpiece
of the group itself. To be black, or a woman, or gay, is, in the eyes of the
NAACP, NOW, or Act Up, to be essentially threatened, victimized, apart
from the rest of America. Second, these organizations will up the ante on
what constitutes a grievance by making support of sovereignty itself the new
rest of grievance. If the women's·studies program has not been made au·
tonomous, this constitutes a grievance. If the National Council of La Raza
hasn't been consulted, Hispanics have been ignored. The third strategy of
grievance organizations is to arrange their priorities in a way that will max·
imize their grievance profile. Often their agendas will be established more
for their grievance potential than for the actual betterment of the group.
Those points at which there is resistance in the larger society to the group's
entitlement demands will usually be made into top-priority issues, thereby
emphasizing the status of victim and outsider necessary to sustain the
sovereign organization.
Thus, at its 1989 convention, the NAACP put affirmative action at the
very top of its agenda. Never mind the fact that studies conducted by both
proponents and opponents of affirmative action indicate the practice has very
little real impact on the employment and advancement of blacks. Never mind,
too, that surveys show most black Americans do not consider racial prefer·
ences their priority. In its wisdom the NAACP thought (and continues ro
think) that the national mood against affirmative-action programs is a big·
ger problem for black men and women than teen pregnancy, or the disin·
regrating black family, or black-on-black crime. Why? Because the very
resistance affirmative action meets from the larger society makes it an issue
of high grievance potential. Affirmative action can generate the urgency that
justifies black soverei8ntY far more than issues like teen pregnancy or high
dropout rates, which carry no load of collective entitlement and which the
entire society sees as serious problems.
In the women's movement, too, the top-priority issues have been those
with the highest grievance potential. I think so much effort and resources
went into the now-failed Equal Rights Amendment because, in large part,
it carried a tremendous load of collective entitlement (a constitutional
amendment for a specific group rather than for all citizens) and because it
faced great resistance from the larger society. lt was a win-win venture for
the women's movement. If it succeeded there would be a great bounty of col·
lective entitl~ment; if it failed, as it did, the failure could be embraced as a
grievance-an indication of America's continuing unwillingness to assure
equality for women. America does not want to allow w in!-that is how the
�f
defeat of the ERA could be interpreted by NOW executives and by female
English protessors eager to run their own departments: the defeat of the ERA
was a boon for the New Sovereignty.
l also believe this quest for sovereignty at least partially explains the leap
of abortion rights to the very top of the feminist agenda on the heels of
the ERA's failure. Abortion has always been an extremely divisive, com·
plex, and emotionally charged issue. And for this reason it is also an is·
sue of enormous grievance potential for the women's movement-assuming
it can be framed solely in terms of female grievance. My own belief is that
abortion is a valid and important issue for the women's movement to take
up, and I completely support the pro-choice position the movement ad·
vacates. However. I think women's organi:ations like NOW have framed
the issue in territorial terms in order to maximi:e its grievance potential.
When they make women's control of their own bodies the very centerpiece
of their argument for choice, they are making the fact of pregnancy the
t!xclusiw terrain of women, despite the obvious role of men in conception
and despite the fact that the vast majority of married women deciding co
have abortions reach cheir decisions with their husbands. Framed exclu·
sively as a woman's right, abortion becomes not a societal issue or even a
family issue but a grievance issue in the ongoing struggle of the women's
movement. Can women's organizations continue to frame pro-choice as
a grievance issue-a question of a righc-and expect co garner che votes
in Congress or in the state legislatures, wh1ch is where the abortion ques·
cion is headed!
I don't think this framing of the issue as a right is as much about abor·
cion as it is about the sovereignty and permanency of women's organizations.
The trick is exclusivity. If you can make the issue exclusively yours-with·
in your territory of final authority-then all who do not capitulate are ag·
grieving you. And then, of course, you must rally and expand your
organi:acion to meet all this potential grievance.
But this is a pattern that ultimately puts grievance organizations out of
touch with their presumed constituencies, who grow tired of the hyperbole.
1 chink it partially explains why so many young women today resist the fern·
inist label and why che membership rolls of the NAACP have fallen so
sharply in recent years, particularly among the young. The
high grievance profile is being seen for what it mostly isa sraying-in-bu~ness strategy.
CAN WOMEN'S ORGANIZATIONS
CONTINUE TO FRAME PRO-CHOICE
AS A GRIEVANCE ISSUE-AS THE
EXCLUSIVE TERRAIN OF WOMENAND EXPECT TO GARNER
THE VOTES IN THE STATE
LEGISLATURES!
H
ow did America evolve its now rather formalized notion that
groups of its ciri:ens could be entitled collectively! I chink it goes back to
the most fundamental contradiction in American life. From the beginning
America has been a pluralistic society, and one drawn to a radical form of
democracy-emphasizing the freedom and equality of individuals-that
could meld such diversity into a coherent nation. In this new nation no group
would lord it over any other. But, of course, beneath this America of its ide·
als there was from the start a much meaner reality, one whose very existence
mocked the notion of a nation made singular by the equality of its individuals.
By limiting democracy to their own kind-white, male landowners-the
Founding Fathers collectively entitled themselves and banished aU others
to the edges and underside of American life. There, individual entitlement
was either curtailed or-in the case of slavery-extinguished.
The genius of the civil rights movement that changed the fabric of American life in the late 1950s and early 1960s was its profound understanding
that the enemy of black Americans was not the ideal America but the un·
spoken principle of collective entitlement char had always pur the lie to true
democracy. This movement, which came to center stage from America's un·
derside and margins, had as its single, overriding goal the eradication of white
entitlement. And, correspondingly, it exhibited a belief in democratic prin·
ciples at least as strong as that of the Founding Far hers, who themselves had
emerged from the (less harsh) margins of English society. In this sense the
ESSAY
51
�FoR MEN LIKE MY FATHER,
AS FOR ALL BLACKS INVOLVED
IN THE EARLY CIVIL RIGHTS
MOVEMENT, INTEGRATION WAS
A WAY OF MOVING FROM THE
MARGINS INTO THE MAINSTREAM
52
HARPER'S MAGAZINE /JULY 1992
civil rights movement re-enacted the American Revolution, and its
paramount leader, Martin Luther King, spoke as twentieth-century America's greatest democratic voice.
All of this was made clear to me for the u-mpteenth time by my father on
a very cold Saturday afternoon in 19;9. There was a national campaign under way to integrate the lunch counters at Woolworth stores, and my iather,
who was more a persuader than an intimidator, had made it a point ofhon·
or that I join him on the picket line, civil rights being nothing less than the
religion of our household. By this time, age twelve or so, I was sick of it. I'd
had enough of watching my parents heading off to still another meeting or
march; I'd heard too many tedious discussions on everything from the phi·
losophy of passive resistance to the symbolism of going to jail. Added to this,
my own experience of picket lines and peace marches had impressed upon
me what so many people who've partaken of these activities know: that in
themselves they can be crushingly boring-around and around and around
holding a sign, watching one's own feet fall, feeling the minutes like hours.
All that Saturday morning I hid from my father and tried to convince myself of what I longed for-that he would get so busy that if he didn't forget
the march he would at least forget me.
.
He forgot nothing. I did my time on the picket line, but not without building up enough resentment to start a fight on the way home. What was so
important about integration? We had never even wanted to eat at Woolworth's. I told him the truth, that he never took us to any restaurants any·
way, claiming always that they charged too much money for bad food. But
he said calmly that he was proud of me for marching and that he knew I knew
food wasn't the point.
My father-forty years a truck driver, with the urges of an intellectu·
al-went on to use my little rebellion as the occasion for a. discourse, in
this case on the concept of integration. Integration had little to do with
merely rubbing shoulders with white people, eating bad food beside them.
It was about the right to go absolutely anywhere white people could go being the test of freedom and equality. To be anywhere they could be and
do anything they could do was the point. Like it or not, white people de·
fined the hori:on of freedom in America, and if you couldn't touch their
shoulder you weren't free. For him integration was the evidence of freedom
and equality.
My father was a product of America's margins, as were all the blacks in
the early civil rights movement, leaders and foot soldiers alike. For them integration was a way of moving from the margins into the mainstream. To·
day there is considerable ambivalence about integration, but in that day it
was nothing less chan democracy itself. Integration is also certainly about
racial harmony, bur it is more fundamentally about the ultimate extension
of democracy-beyond the racial entitlements that contradict it. The idea
of racial integration is quite simply the most democratic principle Ameri·
ca has evolved, since all other such principles depend on its reality and are
diminished by its absence.
But the civil rights movement did not account for one thing: the tremen·
dous release of black anger that would follow its victories. The 1964 Civil
Rights Act and the 1965 Voting Rights Act were, on one level, admissions
of guilt by American society that it had practiced white entitlement at the
expense of all others. When the oppressors admit their crimes, the op·
pressed can give full vent to their long repressed rage because now there is
a moral consensus between oppressor and oppressed that a wrong was done.
This consensus gave blacks the license to release a rage that was three cen·
curies deep, a rage that is still today everywhere visible, a rage that-in the
wake of the Rodney King verdict, a verdict a vase majority of all Americans
thought unfair-fueled the worst rioting in recent American history.
By the m.id-Sixties, the democratic goal of integration was no longer
enough to appease black anger. Suddenly for blacks there was a sense chat far
more was owed, that a huge bill was due. And for many whites there was al·
�..
..
Copyright 1992 American Lawyer Newspapers Group,
New Jersey Law Journal
March 9, 1992
SECTION: VERBATIM; Pg. 18
LENGTH: 6966 words
HEADLINE: An Open Letter to Justice Clarence Thomas
BYLINE: By A. Leon Higginbotham, Jr. *; *The author, Chief Judge
Emeritus of the Third U.S. Circuit Court of Appeals, sent the
following letter to u.s. Supreme Court Justice Clarence Thomas on
Nov. 29, 1991. The footnoted version, "An Open Letter to Justice
Clarence Thomas From a Federal Judicial Colleague," Copyright
1992 by the University of Pennsylvania Law Review and 1991 by A.
Leon Higginbotha, Jr., appeared in the law review's January issue
and is reprinted with permission.
BODY:
Dear Justice Thomas:
The President has signed your Commission and you have now
become the 106th Justice of the United States Supreme Court.
congratulate you on this high honor!
I
It has been a long time since we talked, I believe it was in
1980 during your first year as a Trustee at Holy Cross College.
I was there to receive an honorary degree. You were thirty-one
years old and on the staff of Senator John Danforth. You had not
yet started your meteoric climb through the government and
federal judicial hierarchy. Much has changed since then.
At first I though that I should write you privately -- the way
one normally corresponds with a colleague or friend. I still
feel ambivalent about making this letter public but I do so
because your appointment is profoundly important to this country
and the world, and because all Americans need to understand the
issues you will face on the Supreme Court. In short, Justice
Thomas, I write this letter as a public record so that this
generation can understand the challenges you face as an Associate
Justice to the Supreme Court, and the next can evaluate the
choices you have made or will make.
The Supreme Court can be a lonely and insular environment.
Eight of the present Justices' lives would not have been very
different if the Brown case had never been decided as it was.
Four attended Harvard Law School, which 1950. Two attended
Stanford Law School prior to the time when the first Black
matriculated there. None has been called a "nigger" or suffered
the acute deprivations of poverty.
�I
ADMINISTRATION ACCOMPLISHMENTS
ECONOMY; Passed the Economic Package, August 10, 1993; created over 3 million new jobs in the first
15 months of this Administration; passed the largest deficit-cutting plan in history -- more than $500 billion
over five years; achieved three consecutive years of deficit reduction -- for the first time since Harry
Truman; made new tax cuts available to over 90% of small businesses; signed the Small Business
Guaranteed Credit Enhancement Act of 1993.
EDUCATION; Signed the Student Loan Reform Ad, August 10, 1993; signed the National Service Ad,
September 21, 1993; signed the Goals 1000: Educate America Act; signed the School-to-Work Act on May
4, 1994; passed the Elementary and Secondary Schools Ad of 1993 in the House; increased Head Start
funding by $550 million, allowing 100,000 more kids to participate; introduced the Reemployment Ad..
CRIME; Signed the Brady Bill, November 30, 1993; passed the Assault Weapons Ban in both Houses;
passed tough Crime Bills in both Houses; signed the Police Hiring Supplement, which awards $200
million for community policing; expanded funding for the SAFE Schools Initiative; introduced Operation
Safe Home; developed a clean sweep policy to keep crime out of federally-funded public housing.
HEALTH CARE; Introduced the Health Care Security Ad, November 20, 1993; signed the Family and
Medical Leave Ad, February 5, 1993; signed a comprehensive Child Immunization Plan; revoked the
Reagan/Bush restrictions on abortion counseling ("the gag rule"), abortions in military hospitals, "Mexico
City" policy and RU-486 imports.
FREE TRADE; Signed NAFTA into law, December 8, 1993; negotiated a successful GATT Agreement,
December 15, 1993; developed National Export Strategy, eliminating export controls on $37 billion in
exports; announced a $6 billion sale of 50 civilian aircraft to Saudi Arabia; reinstituting Super 301 in
order to eliminate the major trade barriers around the world; reached an agreement with Japan to open the
cellular telephone market; convened the first-ever summit of Asian-Pacific leaders (APEC).
POLITICAL REFORM; Passed Campaign Finance Reform bill in both Houses: passed Lobbying
Disclosure Bill in both Houses; signed the National Voter Registration Act (Motor-Voter); eliminated the
tax deduction for lobbying expenses; imposed strictest Administration ethics guidelines in history.
COMMUNITY & ECONOMIC DEvELOPMENT; Expanded the Earned Income Tax Credit by $21
billion over five years; created nine Economic Empowerment Zones and 95 Enterprise Communities;
introduced the Housing and Community Development Ad of 1993; instituted the Defense Reinvestment
and Conversion Initiative; delivered over $9.5 billion in Federal aid for California earthquake relief.
REINVENTING GOvERNMENT; Conducted a National Performance Review of the Federal
Government; signed the Government Performance and Results Ad of 1993; appointed the most diverse
Cabinet and Administration in history; signed the Federal Workforce Restructuring Ad of 1994;
eliminated 284 federal advisory committees; the proposed FY95 budget would reduce Federal
employment by 118,000; developed and signed performance agreements with the Departments of HUD,
Interior, Labor, SBA, GSA; initiated thorough review of human radiation experiments.
ENviRONMENT; Introduced a Climate Change Action Plan; developed a Forest Management Plan for
the Pacific Northwest; signed environmental executive orders to ensure a "green" federal government;
signed the Biodiversity Convention; issued an Executive Order on environmental justice.
�•
Justice O'Connor is the only other Justice on the Court who at
one time was adversely affected by a white-male dominated system
that often excludes both women and minorities from equal access
to the rewards of hard work and talent.
ij
By elevating you to the Supreme Court, President Bush has
suddenly vested in you the option to preserve or dilute the gains
this country has made in the struggle for equality. This is a
grave responsibility indeed. In order to discharge it you will
need to recognize what James Baldwin called the "force of
history" within you. You will need to recognize that both your
public life and your private life reflect this country's history
in the area of racial discrimination and civil rights. And,
while much has been said about your admirable determination to
overcome terrible obstacles, it is also important to remember how
you arrived where you are now, because you did not get there by
yourself.
When I think of your appointment to the Supreme Court, I see
not only the result of your own ambition, but also the
culmination o
ea
1n wor
t ousands who
p
. I know you may not want to be ur ene
y
e
memory of their sacrifices. But I also know that you have n~
~ri~t to forget that history. Your · e is very different from
~wh _ it wo
have been had these men and women never 1ve .
That is why today I write to you a ou
s coun
y of
civil rights lawyers and civil rights organizations; its history
of voting rights; and its history of housing and privacy rights.
This history has affected your past and present life. And forty
years from now, when your grandchildren and other Americans
measure your performance on the Supreme Court, that same history
will determine whether you fulfilled your responsibility whose
seat you have been appointed to fill: Thurgood Marshall.
I.
Measures of Greatness or Failure of Supreme Court Justices
In 1977 a group of one hundred scholars evaluated the first
one hundred justices on the Supreme Court. Eight of the justices
were categorized as failures, six as below average, fifty-five as
average, fifteen as near great and twelve as great. Among those
ranked as great were John Marshall, Joseph Story, Roger B. Taney,
John M. Harlan, Oliver Wendell Holmes, Jr., Charles E. Hughes,
Louis D. Brandeis, Harlan F. Stone, Benjamin N. Cardozo, Hugo L.
Black, and Felix Frankfurter. Because you have often criticized
the Warren Court, you should be interested to know that the list
of great jurists on the Supreme Court also included Earl Warren.
�Brennan, Harry Blackmun, Lewis Powell, and John Paul Stevens
will come to be revered by future scholars and future generations
with the same gratitude. Over the next four decades you will
cast many historic votes on issues that will profoundly affect
the quality of life for our citizens for generations to come.
You can become an examplar of fairness and the rational
interpretation of the Constitution, or you can become an
archetype of inequality and the retrogressive evaluation of human
rights. The choice as to whether you will build a decisional
record of true greatness or of mere mediocrity is yours.
II.
Our Major Similarity
My more than twenty-seven years as a federal judge made me
listen with intense interest to the many persons who testified
both in favor of and against your nomination. I studied the your
testimony and the comments others made about you. After reading
almost every word of your testimony, I concluded that what you
and I have most in common is that we are both graduates of Yale
Law School. Though our graduation classes are twenty-two years
apart, we have both benefited from our old Eli connections.
If you had gone to one of the law schools in your home state,
Georgia, you probably would not have met Senator John Danforth
who, more than twenty years ago, served with me as a member of
the Yale Corporation. Dean Guido Calabresi mentioned you to
Senator Danforth, who hired you right after graduation from law
school and became one of your primary sponsors. If I had not
gone to Yale Law School, I would probably not have met Justice
Curtis Bok, nor Yale Law School alumni such as Austin Norris, a
distinguished black lawyer, and Richardson Dilworth, a
distinguished white lawyer, who became my mentors and gave me my
first jobs. Nevertheless, now that you sit on the Supreme Court,
there are issues far more important to the welfare of our nation
than our Ivy League connections. I trust that you will not be
overly impressed with the fact that all of the other Justices are
graduates of what layman would call the nation's most prestigious
law schools.
Black Ivy League alumni in particular should never be too
impressed by the educational pedigree of Supreme Court Justices.
The most wretched decision ever rendered against black people in
the past century was Plessy v. Ferguson. It was written in 1896
by Justice Henry Billings Brown, who had attended both Yale and
Harvard Law Schools. The opinion was joined by Justice George
Shiras, a graduate of Yale Law School, as well as by Chief
Justice Melville Fuller and Justice Horace Gray, both alumni of
Harvard Law School.
If those four Ivy League alumni on the Supreme Court in 1896
had been as faithful in their interpretation of the Constitution
as Justice John Harlan, a school in Kentucky, then the venal
precedent of Plessy v. Ferguson, which established the federal
"separate but equal" doctrine and legitimized the worst forms of
�race discrimination, would not have been the law of our nation
for sixty years. The separate but equal doctrine, also known as
Jim Crow, created the foundations of separate and unequal
allocation of resources, and oppression of the human rights of
Blacks.
During your confirmation hearing I heard you refer frequently
to your grandparents and your experiences in Georgia. Perhaps
now is the time to recognize that if the four Ivy League alumni
-- all portherners -- of the Plessy majority had been as
sensitive to the plight of black people as was Justice John
Harlan, a former slave holder from Kentucky, the American
statutes that sanctioned racism might not have been on the books
-- and many of the racial injustices that your grandfather, Myers
Anderson, and my grandfather, Moses Higginbotham, endured would
never have occurred.
w
sequelae of Pless~-- a case which
Justice Kennedy, and most scholars
As you sit on the Supreme Court confronting the profound
issues that come before you, never be impressed with how bright
'your colleagues are. You must always focus on what values they
bring- to tfie tas1E ef iate:rpr:eting the Constitution. Our
Constitution has
·
-sirable -- level of
a iguity, and there are man interstitial s aces which as a
Ju
e u reme
r
u
ve to ~
~n.
o orrow
~Jus
nt hras · "
·
r rules of
(!5I _,law full blossomed from the trees." You putting your imprima urs
-on a set of values. The a~lemma will always be which particular
values you choose to sanction in law. You can be part of what
Chief Justice Warren, Justice Brennan, Justice Blackmun, and
Justice Marshall and others have called the evolutionary movement
of the Constritution -- an evolutionary movement that has
benefited you greatly.
III. Your Critiques of Civil Rights Organizations and the
Supreme Court During the Last Eight Years
I have read almost every article you have published, every
speech you have given, and virtually every public comment you
have made during the past decade. Until your confirmation hearing
I could not find one shred of evidence suggesting an insightful
understanding on your part on how the evolutionary movement of
the Constitution and the work of civil rights organizations have
benefited you. Like Sharon McPhail, the President of the
National Bar Association, I kept asking myself: Will the Real
Clarence Thomas Stand Up? Like her, I wondered: "Is Clarence
Thomas a 'conservative with a common touch' as Ruth Marcus refers
�to him . • • or the 'counterfeit hero' he is accused of being by
Haywood Burns • • • ?"
While you were a presidential appointee for eight years, as
Chairman of the Equal Opportunity Commission and as an Assistant
Secretary at the Department of Education, you made what I would
regard as unwarranted criticisms of civil rights organizations,
the Warren Court, and even of Justice Thurgood Marshall. Perhaps
these criticisms were motivated by what you perceived to be your
political duty to the Reagan and Bush administrations. Now that
you have assumed what should be the non-partisan role of a
Supreme Court Justice, I hope you will take time out to carefully
evaluate some of these unjustified attacks.
In October 1987, you wrote a letter to the San Diego Union
Tribune criticizing a speech given by Justice Marshall on the
.200th anniversary celebration of the Constitution. Justice
Marshall had cautioned all Americans not to overlook the
momentous events that followed the drafting of that document and
to "seek • • • a sensitive understanding of the Constitution's
inherent defects, and its promising evolution through 200 years
/ of history."
Your response dismissed Justice Marshall's "sensitive
understandings as an "exasperating and incomprehensive •
assault on the Bicentennial, the Founding, and the Constitution
itself."
Yet, however high and noble the Founders' intentions may have
been Justice Marshall was correct in believing that the men who
gathered in Philadelphia in 1787 "could not have imagined, nor
would they have accepted, that the document they were drafting
would one day be construed a Supreme Court to which had been
appointed a woman and the descendant of an African slave." That,
however, was neither an assault on the Constitution nor an
indictment of the Founders. Instead, it was simply a recognition
that in the midst of the Bicentennial celebration, "[s]ome may
more quietly commemorate the suffering, the struggle and
sacrifice that has triumphed over much of what was wrong with the
original document, and observe the anniversary with hopes not
realized and promises not fulfilled."
Justice Marshall's comments, much like his judicial
philosophy, were grounded in history and were driven by the
knowledge that even today, for millions of Americans, there still
remain "hopes not realized and promises not fulfilled." His
reminder to the nation that patriotic feelings should not get in
the way of thoughful reflection on this country's continued
struggle for equality was neither new nor misplaced. Twenty-five
years earlier, in December 1962, while this country was
celebrating the 100th anniversary of the emancipation
proclamation James Baldwin had written to his young nephew:
�home, my friend, do not be driven from it: reat
s
make
know, and I know that the country is celebrating one
years of freedom one hundred years too soon.
our response to Justice Marshall's speech, as well as your
criticisms of the Warren court and civil rights organizations,
may have been nothing more than your expression of allegiance to
the conservatives who made you Chairman of the EEOC, and who have
now elevated you to the Supreme Court. But your comments
troubled me then and trouble me still because they convey a
stunted knowledge of history and an unformed judicial philosophy.
Now that you sit on the Supreme Court you must sort matters out
for yourself and form your own judicial philosophy, and you must
reflect more deeply on legal history than you ever have before.
You are no longer privileged to offer flashy one-liners to
delight the conservative establishment. Now what you write must
inform, not entertain. Now your statements and your votes can
shape the destiny of the entire nation.
Notwithstanding the role you have played in the past, I
believe you have the intellectual depth to reflect upon and
rethink the great issues the Court has confronted in the past and
to become truly your own man. But to be your own man the first
in the series of questions you must ask yourself is this: Beyond
your own admirable personal drive, what were the primary forces
or acts of good fortune that made your major achievements
possible? This is a hard and difficult question. Let me suggest
that you focus on at least four areas: (1) the impact of the work
of civil rights lawyers and civil rights organizations on your
life; (2) other than having picked a few individuals to be their
favorite colored person, what it is that the conservatives of
each generation have done that has been of significant benefit to
African-Americans, women or other minorities; (3) the impact of
the eradication of racial barriers in the voting on your own
confirmation; and (4) the impact of civil rights victories in the
area of housing privacy on your personal life.
IV. The Impact of the Work of Civil Rights Lawyers and Civil
Rights Organizations on Your Life
During the time when civil rights organizations were
challenging the Reagan Administration, I was frankly dismayed by
some of your responses to and denigrations of these
organizations. In 1984, the Washington Post reported that you
had criticized traditional civil rights leaders because, instead
of trying to reshape the Administration's policies they had gone
to the news media to "bitch, bitch, bitch, moan and moan, whine
and whine." If that is still your assessment of these civil
rights organizations or their leaders, I suggest, Justice Thomas,
that you should ask yourself every day what would have happened
to you if there had never been a Charles Hamilton Houston, a
William Henry Hastie, a Thurgood Marshall, and that small cadre
of other lawyers associated with them, who laid the groundwork
�for success in the twentieth-century racial civil rights cases?
Couldn't they have been similarly charged with, as you phrased
it, bitching and moaning and whining when they challenged the
racism in the administrations of prior presidents, governors, and
public officials? If there had never been an effective NAACP,
isn't it highly probable that you might still be in Pin Point,
Georgia, working as a laborer as some of your relatives did for
decades?
Even though you had the good fortune to move to Savannah,
Georgia, in 1955, would you have been able to get out of Savannah
and get a responsible job if decades earlier the NAACP had not
been challenging racial injustice throughout America? If the
NAACP had not been lobbying, picketing, protesting, and
politicking for a 1964 Civil Rights Act, would Monsanto Chemical
Company have opened their doors to you in 1977? If Title VII had
not been enacted might not American companies still continue to
discriminate on the basis of race, gender, and national origin?
The philosophy of civil rights protest evolved out of the fact
that black people were forced to confront this country's equal
access to those institutions. For example, in January of 1941,
A. Philip Randolph planned a march on Washington, D.C., to
protest widespread employment discrimination in the defense
industry. In order to avoid the prospect of a demonstration by
potentially tens of thousands of Blacks, President Franklin
Delano Roosevelt issued Executive Order 8802 barring
discrimination in defense industries or government. The order
led to the inclusion of anti-discrimination clauses in all
government defense contracts and the establishment of the Fair
Employment Practices Committee.
In 1940, President Roosevelt appointed William Henry Hastie as
civilian aide to Secretary of War Henry L. Stimson. Hastie
fought tirelessly against discrimination, but when confronted
with an unabated program of segregation in all areas of the armed
forces, he resigned on January 31, 1943. His visible and
dramatic protest sparked the move towards integrating the armed
forces, with immediate and far-reaching results in the army air
corps. A. Philip Randolph and William Hastie understood -though I wonder if you do -- what Frederick Douglass meant when
he wrote:
The whole history of the progress of human liberty shows that all
concessions yet made to her august claims, have been born of
earnest struggle. . . . If there is no struggle there is no
progress. . • •
This struggle may be a moral one, or it may be a physical one,
and it may be both moral and physical, but it must be a struggle.
Power concedes nothing without a demand. It never did and it
never will.
�The struggles of civl rights organizations and civil rights
lawyers have been both moral and physical, and their victories
have been neither easy nor sudden. Though the Brown decision was
issued only six years after your birth, the road to Brown started
more than a century earlier. It started when Prudence Crandall
was arrested in Connecticut in 1833 for attempting to provide
schooling for colored girls. It was continued in 1849 when
Charles Sumner, a white lawyer and abolitionist, and Benjamin
Roberts, a black lawyer, challenged segregated schools in Boston.
It was continued as the NAACP, starting with Charles Hamilton
Houston's suit, Murray v. Pearson, in 1936, challenged Maryland's
policy of excluding Blacks from the University of Maryland Law
School. It was continued in Gaines v. Missouri, when Houston
challenged a 1937 decision of the Missouri Supreme Court. The
Missouri courts had held that because law schools in the states
of Illinois, Iowa, Kansas, and nebraska accepted Negroes, a
twenty-five-year-old black citizen of Missouri was not being
denied his constitutional right to equal protection under the law
when he was excluded from the only state supported law school in
Missouri. It was continued in Sweatt v. Painter in 1946, when
Heman Marion Sweatt filed suit for admission to the Law School of
the University of Texas after his application was rejected solely
because he was black. Rather than admit him, the University
postponed the matter for years and put up a separate and
unaccredited law school for Blacks. It was continued in a series
of cases against the University of Oklahoma, when, in 1950, in
McLaurin v. Oklahoma, G. W. McLaurin, a sixty-eight-year-old man,
applied to the University of Oklahoma to obtain a Doctorate in
education. He had earned his Master's degree in 1948, and had
been teaching at Langston University, the state's college for
Negroes. Yet he was "required to sit apart at . . • designated
[desks] in an anteroom adjoining the classroom . . • [and] on the
mezzanine floor of the library, . . . and to sit at a designated
table and to eat at a different time from the other students in
the school cafeteria."
The significance of the victory iR tbe Browa ease caaaot be
Brown changed the moral tone of America; by
eliminat:lng tfie Ieg1t1m1zation of state-imposed racism it
implicitly questioned racism wherever it was used. It created a
milieu in which private colleges were forced to recognize their
failures in excluding or not welcoming minority students. I
submit that even your distinguished undergraduate college, Holy
Cross, and Yale University were influenced by the milieu created
by Brown and thus became more sensitive to the need to create
programs for the recruitment of competent minority students. In
short, isn't it possible that you might not have gone to Holy
Cross if the NAACP and other civil rights organizations, Martin
Luther King and the Supreme Court, had not recast the racial
mores of America? And if you had not gone to Holy Cross, and
instead had gone to some underfunded state college for Negroes in
Georgia, would you have been admitted to Yale Law School, and
would you have met the alumni who played such a prominent role in
maximizing your professional options?
o~ed.
�I have cited this litany of NAACP cases because I don't
understand why you appeared so eager to criticize civil rights
organizations or their leaders. In the 1980s, Benjamin Hooks and
John Jacobs worked just as tirelessly in the cause of civl rights
as did their predecessors Walter White, Roy Wilkins, Whitney
Young, and Vernon Jordan in the 1950s and '60s. As you now start
to adjudicate cases involving civil rights, I hope you will have
more judicial integrity than to demean those advocates of the
disadvantaged who appear before you. If you and I had not gotten
many of the positive reinforcements that these organizations
fought for and that the post-Brown era made possible, probably
neither you nor I would be federal judges today.
V.
What Have the Conservatives Ever Contributed to
African-Americans?
During the last ten years, you have often described yourself
as a black conservative. I must confess that, other than their
own self-advancement, I am at a loss to understand what is it
that the so-called black conservatives are so anxious to
conserve. Now that you no longer, have to be outspoken on their
behalf, perhaps you will recognize that in the past it was the
white conservatives who screamed "segregation now, segregation
forever!" It was primarily the conservatives who attacked the
Warren Court relentlessly because of Brown v. Board of
Education and who stood in the way of almost every measure to
ensure gender and racial advancement.
For example, on March 11, 1956, ninety-six members of
Congress, representing eleven southern states, issued the
"Southern Manifesto," in which they declared that the Brown
decision was an "unwarranted exercise of power by the Court,
contrary to the Constitution." Ironically, those members of
Congress reasoned that the Brown decision was "destroying the
amicable relations between the white and Negro races," and that
"it had planted hatred and suspicion where there had been
heretofore friendship and understanding." They then pledged to
use all lawful means to bring about the reversal of the decision,
and praised those states which had declared the intention to
resist its implementation. The Southern Manifesto was more than
mere political posturing by Southern Democrats. It was a thinly
disguised racist attack on the constitutional and moral
foundations of Brown. Where were the conservatives in the 1950s
when the cause of equal rights needed every fair-minded voice it
could find?
At every turn, the conservatives, either by tacit approbation
or by active complicity, tried to derail the struggle for equal
rights in this country. In the 1960s, it was the conservatives,
including the then-senatorial candidate from Texas, George Bush,
the then-Governor from California, Ronald Reagan, and the
omnipresent Senator Strom Thurmond, who argued that the 1964
Civil Rights Act was unconstitutional. In fact Senator
�Thurmond's 24 hour 18 minute filibuster during Senate
deliberations on the 1957 Civil Rights Act set an all-time
record. He argued on the floor of the Senate that the provisions
of the Act guaranteeing equal access to public accommodations
amounted to an enslavement of white people. If twenty-seven
years ago George Bush, Ronald Reagan, and Strom Thurnmod had
succeeded, there would have been no position for you to fill as
Assistant Secretary for Civil Rights in the Department of
Education. There would have been no such agency as the Equal
Employment Commission for you to chair.
Thus, I think now is the time for you to reflect on the
evolution of American constitutional and statutory law, as it has
affected your personal options and improved the options for so
many Americans, particularly non-whites, women, and the poor. If
the conservative agenda of the 1950s, '60s, and '70s had been
implemented, what would have been the results of the important
Supreme Court cases that now protect your rights and the rights
of millions of other Americans who can now no longer be
discriminated against because of their race, religion, national
origin, or physical disabilities? If, in 1954, the United States
Supreme Court had accepted the traditional rationale that so many
conservatives then espoused, would the 1896 Plessy v. Ferguson
case, which announced the nefarious doctrine of "separate but
equal," and which allowed massive inequalities, still be the law
of the land? In short, if the conservatives of the 1950s had had
their way, would there ever have been a Brown v. Board of
Education to prohibit state-imposed racial segregation?
VI.
The Impact of Eradicating Racial Barriers to Voting
Of the 52 senators who voted in favor of your confirmations,
some thirteen hailed from nine southern states. Some may have
voted for you because they agreed with President Bush's
assessment that you were "the best person for the position." But,
candidly, Justice Thomas, I do not belive that you were indeed
the most competent person to be on the Supreme Court. Charles
Bowser, a distinguished African-American Philadelphia lawyer,
said, "I'd be willing to be . . . that not one of the senators
who voted to confirm Clarence Thomas would hire him as their
lawyer."
Thus, realistically, many senators probably did not think that
you were the most qualified person available. Rather, they were
acting solely as politicians, weighing the potential backlash in
their states of the black vote that favored you for emotional
reasons and the conservative white vote that favored you for
ideological reasons. The black voting constituency is important
in many states, and today it could make a difference as to
whether many senators are or are not re-elected. So here, too,
you benefited from civil rights progress.
�No longer could a United States Senator say what Senator
Benjamin Tillman of South Carolina said in anger when President
Theodore Roosevelt invited a moderate Nego, Booker T. Washington,
to lunch at the White House: "Now that Roosevelt has eaten with
the Nigger Washington, we shall have to kill a thousand niggers
to get them back to their place." Senator Tillman did not have to
fear any retaliation by Blacks because South Carolina and most
southern states kept Blacks "in their place" by manipulating the
ballot box. For example, because they did not have to confront
the restraints and prohibitions of later Supreme Court cases, the
Manipulated "white" primary allowed Tillman and other racist
senators to profit from the threat of violence to Blacks who
voted, and from the disproportionate electoral power given to
rural whites. For years, the NAACP litigated some of the most
significant cases attacking racism at the ballot box. That
organization almost singlehandedly created the foundation for
black political power that led in part to the 1965 Civil Rights
Act.
Moreover, if it had not been for the Supreme Court's opinion
in Smith v. Allright, a case which Thurgood Marshall argued, most
all the southern senators who voted for you would have been
elected in what was once called a "white primary" -- a process
which precluded Blacks from effective voting in the southern
primary election, where the real decisions were made on who would
run every hamlet, township, city, county and state. The seminal
case of Baxter v. Carr, which articulated the concept of one
man-one vote, was part of a series of Supreme Court precedents
that cause southern senators to recognize that patently racist
diatribes could cost them an election. Thus your success even in
your several confirmation votes is directly attributable to the
efforts that the "activist" Warren Court and civil rights
organizations have made over the decades.
VII.
Housing and Privacy
If you are willing, Justice Thomas, to consider how the
history of civil rights in this country has shaped your public
life, then imagine for a moment how it has affected your private
life. With some reluctance, I make the following comments about
housing and marriage because I hope that reflecting on their
constitutional implications may raise your consciousness and
level of insight about the dangers of excessive intrusion by the
state in personal and family relations.
From what I have seen of your house on television scans and in
newspaper photos, it is apparent that you live in a comfortable
Virginia neighborhood. Thus I start with Holmes's view that "a
page of history is worth a volume of logic." The history of
Virginia's legislatively and judicially imposed racism should be
particularly significant to you now that as a Supreme Court
Justice you must determine the limits of a state's intrusion on
family and other matters of privacy.
�It is worthwhile pondering what the impact on you would have
been if Virginia's legalized racism had been allowed to continue
as a viable constitutional doctrine. In 1912, Virginia enacted a
statute giving cities and towns the right to pass ordinances
which would divide the city into segregated districts for black
and white residents. Segregated districts were designated white
or black depending on the race of the majority of the residents.
It became a crime for any black person to move into and occupy a
residence in an area known as a white district. Similarly, it
was a crime for any white person to move into a black district.
Even prior to the Virginia statute of 1912, the cities of
Ashland and Richmond had enacted such segregationist statutes.
The ordinances also imposed the same segregationist policies on
any "place of public assembly." Apparently schools, churces, and
meeting places were defined by the color of their members. Thus,
white Christian Virginia wanted to make sure that no black
Christian churches were in their white Christian neighborhoods.
The impact of these statutes can be assessed by reviewing the
experiences of two African-Americans, John Coleman and Mary
Hopkins. Coleman purchased property in Ashland, Virginia in
1911. In many ways he symbolized the American dream of achieving
some modest upward mobility by being able to purchase a home
earned through initiative and hard work. But shortly after
moving to his home, he was arrested for violating Ashland's
segregation ordinance because a majority of the residents in the
block were white. Also, in 1911, the City of Richmond prosecuted
and convicted a black woman, Mary s. Hopkins, for moving into a
predominantly white block.
Coleman and Hopkins appealed their convictions to the Supreme
Court of Virginia which held that the ordinances of Ashland and
Richmond did not violate the United States Constitution and that
the fines and convictions were valid.
If Virginia's law of 1912 still prevailed, and if your
community passed laws like the ordinances of Richmond and
Ashland, you would not be able to live in your own house.
Fortunately, the Virginia ordinances and statutes were in effect
nullified by a case brought by the NAACP in 1915, where a similar
statute of the City of Louisville was declared unconstitutional.
But even if your town council had not passed such an ordinance,
the developers would in all probability have incorporated
racially restrictive covenants in the title deeds to the
individual homes. Thus, had it not been for the vigor of the
NAACP's litigation efforts in a series of persistent attacks
against racial covenants you would have been excluded from your
own home. Fortunately, in 1948, in Shelley v. Kramer, a case
argued by Thurgood Marshall, the NAACP succeeded in having such
racially restrictive covenants declared unconstitutional.
Yet with all of those litigation victories, you still might
not have been able to live in your present house because a
�private developer might have refused to sell you a home solely
because you are an African-American. Again you would be saved
because in 1968 the Supreme Court, in Jones v. Alfred H. Mayer
Co., in an opinion by Justice Stewart, held that the 1866 Civil
Rights Act precluded such private racial discrimination. It was
a relatively close case; the two dissenting justices said that
the majority opinion was "ill considered and ill-advised." It was
the values of the majority which made the difference. And it is
your values that will determine the vitality of other civil
rights acts for decades to come.
Had you overcome all of those barriers to housing and if you
and your present wife decided that you wanted to reside in
Virginia, you would nonetheless have been violating the Racial
Integrity Act of 1924, which the Virginia Supreme Court as late
as 1966 said was consistent with the federal constitution because
of the overriding state interest in the institution of marriage.
Although it was four years after the Brown case, Richard Perry
Loving and his wife, Mildred Jeter Loving were convicted in 1958
and originally sentenced to one year in jail because of their
interracial marriage. As an act of magnanimity the trial court
later suspended the sentences, "for a period of 25 years upon the
provision that both accused leave Caroline County and the state
of Virginia at once and do not return together or at the same
time to said county and state for a period of 25 years.'"
The conviction was affirmed by a unanimous Supreme Court of
Virginia, thought they remanded the case back as to the
resentencing phase. Incidentally, the Virginia trial judge
justified the constitutionality of the prohibition against
interracial marriages as follows:
"Almighty God created the races white, black, yellow, Malay
and red, and he placed them on separate continents. And but for
the interference with his arrangement there would be no cause for
such marriages. The fact that he separated the races shows that
he did not intend for the races to mix."
If the Virginia courts had been sustained by the United States
Supreme Court in 1966, and if, after your marriage, you and your
wife had, like the Lovings, defied the Virginia statute by
continuing to live in your present residence, you could have been
in the penitentiary today rather than serving as an Associate
Justice of the United States Supreme Court.
I note these pages of record from American legal history
because they exemplify the tragedy of excessive intrusion on
individual and family rights. The only persistent protector of
privacy and family rights has been the United States Supreme
Court, and such protection has occurred only when a majority of
the Justices has possessed a broad vision of human rights. Will
you, in your moment of truth, take for granted that the
Constitution protects you and your wife against all forms of
deliberate state intrusions into family and privacy matters, and
�protect you even against some forms of discrimination by other
private parties such as the real estate developer, but
nevertheless find that it does not protect the privacy rights of
others, and particularly women, to make similarly highly personal
and private decisions?
Conclusion
This letter may imply that I am somewhat skeptical as to what
your performance will be as a Supreme Court Justice. Candidly, I
and many other thoughtful Americans are very concerned about your
appointment to the Supreme Court. But I am also sufficiently
familiar with the history of the Supreme Court to know that a few
of its members (not many) about whom there was substantial
skepticism at the time of their appointment became truly
outstanding Justices. In that context I think of Justice Hugo
Black. I am impressed by the fact that at the very beginning of
his illustrious career he articulated his vision of the
responsibility of the Supreme Court. In one of his early major
opinions he wrote, "courts stand . . . as havens of refuge for
those who might otherwise, suffer because they are helpless,
weak, out-numbered, or • . . are nonconforming victims of
prejudice and public excitement."
While there are many other equally important issues that you
must consider and on which I have not commented, none will
determine your place in history as much as your defense of the
weak, the poor, minorities, women, the disabled and the
powerless. I trust that you will ponder often the significance
of the statement of Justice Blackmun, in a vigorous dissent of
two years ago, when he said: "[Sadly] . • • one wonders whether
the majority [of the Court] still believes that . • • race
discrimination -- or more accurately, race discrimination against
nonwhites -- is a problem in our society, or even remembers that
it ever was."
You, however, must try to remember that the fundamental
problems of the disadvantaged, women, minorities, and the
powerless have not all been solved simply because you have "moved
on up" from Pin Point, Georgia, to the Supreme Court. In your
opening remarks to the Judiciary Committee, you described your
life in Pin Point, Georgia, as "far removed in space and time
from this room, this day and this moment." I have written to tell
you that your life today, however, should be not far removed from
the visions and struggles of Frederick Douglass, Sojourner Truth,
Harriet Tubman, Charles Hamilton Houston, A. Philip Randolph,
Mary McLeod Bethune, W. E. B. Dubois, Roy Wilkins, Whitney Young,
Martin Luther King, Judge William Henry Hastie, Justices Thurgood
Marshall, Earl Warren, and William Brennan, as well as the
thousands of others who dedicated much of their lives to create
the America that made your opportunities possible. I hope you
have the strength of character to exemplify those values so that
the sacrifices of all these men and women will not have been in
vain.
�I am sixty-three years old. In my lifetime I have seen
African-Americans denied the right to vote, the opportunities to
a proper education, to work, and to live where they choose. I
have seen and known racial segregation and discrimination. But I
have also seen the decision in Brown rendered. I have seen the
first African-American sit on the Supreme Court. And I have seen
brave and courageous people, black and white, give their lives
for the civil right cause. My memory of them has always been
without bitterness or nostalgia. But today it is sometimes
without hope; for I wonder ·whether their magnificent achievements
are in jeopardy. I wonder whether (and how far) the majority of
the Supreme Court will continue to retreat from protecting the
rights of the poor, women, the disadvantaged, minorities, and the
powerless. And if, tragically, a majority of the Court continues
to retreat, I wonder whether you, Justice Thomas, an
African-American, will be part of that majority.
No one would be happier than if the record you will establish
on the Supreme Court in years to come demonstrates that my
apprehensions were unfounded. You were born into injustice,
tempered by the hard reality of what it means to be poor and
black in America, and especially to be poor because you are
black. You have found a door newly cracked open and you have
e caped. I trust you shall not forget that many who preceded you
an many who follow you have found, and will find, the door f
equal opportunity slammed in their faces through no fault of
heir own. And I also know that time and the tides of history
ften call out of men and women qualities that even they did no
ow lay within them. And so, with hope to balance my
a prehensions, I wish you well as a thoughtful and worthy
s ccessor to Justice Marshall in the ever ongoing struggle to
a sure equal justice under law for all persons.
cerely,
A. Leon Higginbotham, Jr.
LANGUAGE: ENGLISH
�THE WHITE HOUSE
WASHINGTON
April 20, 1994
MEMORANDUM FOR THE PRESIDENT
FROM: RICK!
SEID~
SUBJECT: RECOMMENDATIONS FOR COMMENCEMENT ADDRESSES
As we have discussed, and based on broad consultations among the staff, I believe
you should consider five commencement addresses this YeaJ:":
(1) a military academy;
(2) a large state university;
(3) a "specialized" school;
(4) a health related school; and
(5) a large urban high school.
Based on these considerations, I recommend:
(1) The Naval Academy (May 25)
(2) The 75th Anniversary Convocation at
UCLA (May 20 or 21)
(3) Gallaudet (May 13)
4S
(4) SUNY Health Science Center College of Nursing and College of Health
Related Professions (May 9) J
.
(5) High School tbd (after June 8)
Don Baer is preparing a more extensive memo on themes, but his general concept is
that your underlying theme would be responsibility and each address would focus on a
different aspect.
�The Naval Academy
We have already locked into this. In the regular rotation we might otherwise have
done the Air Force Academy, but that takes place in Colorado on the day of your departure
to Italy, so we can do it next year. The Naval Academy commencement, which occurs on
May 25, also gives you an opportunity to preview the D-Day Anniversary events one week
later.
The UCLA 75th Anniversary Convocation
This is not a commencement per se. UCLA generally has smaller commencements
for different undergraduate programs in June. However, it will be a very big event. Due to
the fact that it includes all of the students, it gives you a broad message opportunity. The
site they have tentatively selected would hold 5,000 to 6,000, and they are exploring the
possibility of an alternative site to hold between 10,000 to 20,000 (there are 33,000 students
in undergraduate programs and 6,000 in graduate schools). The students are diverse in terms
of ethnicity and economic backgrounds. I am checking with John Emerson to make sure he
thinks this makes sense. Gearan and Baer heartily endorse this selection.
Gallaudet
Last year you spoke at a technical college. This year you will speak at Gallaudet.
Bonion believes that you told him you would do this commencement; he is on Gallaudet's
board. This is very important to Legislative Affairs because Bonior is working hard for you
on a variety of issues. Gallaudet is a local school (which I think is good) with a national
student body. The health care group is very supportive of Gallaudet as a choice because of
the importance of the disability community to the health care reform effort.
Thematically, the Gallaudet address is contemplated as the first of a series of events
that we believe you should do on "bringing people together" during the few days leading up
to and following May 17, which is the 30th Anniversary of Brown y. Board of Education.
You expressed some reluctance today about Gallaudet that we need to discuss as soon
as possible. If you are not going to do this commencement, we need to notify the school
right away.
SUNY Health Science Center College of Nursing and College of Health Related
Professions
We had discussed doing a medical school and though we have been working closely
with Ira, we have not come up with a good choice on a date that works. I am currently
vetting this SUNY college for size and friendliness to our health care plan. The
commencement occurs on May 9, the day after Mother'~ Day. This day is a period when we
are proposing that you concentrate on women's health concerns.
2
�High School
My idea is that we should work with Legislative Affairs to identify a large high
school in the district of a member of Congress whom we want to reward (in a targeted state,
of course). An alternative, which would not involve travel, is the high school of the kid at
the MTV Forum who said there were too many doors at his school to mag and too many
students to check individually. The student, Brandon Dontch, attends Largo High School in
Prince Georges County, Maryland. The commencement is being held at the USAir Arena
(formerly the Cap Center) in Landover, Maryland at 9:00a.m. on May 31. I am checking to
see whose congressional district this is in.
Miscellaneous
The only other schools I would suggest considering are Yale and Northwestern. I
think you should consider Yale a personal decision; it is not particularly advantageous from a
political or message perspective. I like Northwestern alot. Dale Bumpers and Al From are
pushing it. It occurs on June 18, and you will already be in Chicago on June 17 for the
opening of the World Cup. My only hesitation is that Hillary is doing the University if
Illinois, and even though that is in the southern part of the state, I am concerned that it is too
big of a country. for both Clintons to do commencements in the same state. Even Patti Solis,
who attended Northwestern, agrees with this concern. Let me know what you think.
Hillary is also doing the George Washington University commencement on Mother's
Day, May 8. I think you and Chelsea should consider attending, just to hear her speak, not
to participate in the other festivities. She currently plans to do only these two
commencements. (Gore currently is scheduled to do only Harvard, where he will also be
attending his college reunion.)
3
�PENDING COMMENCEMENT INVITATIONS FOR 1994
(Invitations received for dates that the President is otherwise
unavailable, e.g., in Europe forD-Day Anniversary Celebration
have been regretted and are not noted below.)
4/20/94
FLORIDA
Miami-Dade Community College
5/6/94
CALIFORNIA
University of Southern California
5/6/94
ILLINOIS
Univ. of Illinois College of Medicine at
Chicago
5/6/94
OKLAHOMA
Western Oklahoma State College
5/7/94
OKLAHOMA
Oklahoma State University
5/9/94
NEW YORK
SUNY Health Science Center College of
NUrsinq and College of Health Related
Professions
5/10/94
PENNSYLVANIA
Community College of Philadelphia
5/12/94
NEW YORK
New York University
5/13/94
WASH, D.C.
Gallaudet University
5/13/94
ARIZONA
Chandler-Gilbert Community College
Chandler, Arizona
5/13/94
SOUTH CAROLINA University of South Carolina
5/19/94
NEW JERSEY
The State University of New Jersey,
Rutgers
5/20/94
CALIFORNIA
UCLA 75th Anniversary Convocation
5/22/94
CALIFORNIA
University of San Diego
5/22/94
GEORGIA
Morehouse College
5/23/94
CONNECTICUT
Yale University
5/31/94
CONNECTICUT
Gateway Community-Technical College
6/11/94
MINNESOTA
University of Minnesota (Wellstone's
office has put in a request for you to
do this commencement in 1995)
6/12/94
GEORGIA
Mercer University
Macon, Georgia
�6/12/94
ILLINOIS
.Chicago - Kent College of Law
6/14/94
NEW HAMPSHIRE
Dartmouth College
6/18/94
ILLINOIS
Northwestern University
6/20/94
NEW YORK
u.s. Merchant Marine Academy
Kings Point, New York
�DALE BUMPERS
ARKANSAS
�NORTHWESTERN
UN
V
E
R
SIT
Y
OFFICE OF TilE PRESIOENT
February 23, 1994
President Bill and Mrs. Hillary Clinton
The White House
Washington, DC 20500
Dear President and Mrs. Clinton:
It is with great pleasure that I write officially to inform you that the
Board of Trustees of Northwestern University has approved the
recommendation of the Faculty Senate that hmh of you be invited to attend the
University Commencement exercises at Northwestern University on Saturday
morning, June 18, 1994 so that each of you may receive the honorary degree
of Doctor of Laws.
Advance notice of this invitation has already been conveyed to Ms.
Isabelle Tapia and to Mr. Mack McLarty by Messrs. Richard Gephardt and
Paul Simon, respectively -- both of whom have been recipients of honorary
degrees from Northwestern.
Honorary degrees are awarded by Northwestern each June to a small
number of persons who are judged to have made exceptional contributions to
fields valued by the University. Having originated in the University Senate
and received the unanimous endorsement of our Board of Trustees, this
invitation represents the desire of both the academic and corporate branches of
the University to recognize your distinguished accomplishments.
Although Northwestern is a research university of national standing, it
is in many ways an unusual institution: the only independent university in the
Big Ten; an institution with distinctly midwestern roots that attract~ a national
(indeed international) student body; an institution that places a great value on
undergraduate education and the development of leaders for the arts and the
professions: and an institution that has a proud record of enrolling and
graduating a racially and socio-economically diverse student body.
We will be very pleased if you are both able to accept membership in
our community by accepting the award of these degrees. Under University
policy, recipients of honorary degrees must attend the Commencement
exercises in order to receive the degree. Though we should very much like to
honor both of you for your achievements, we would of course be prepared to
confer the degree on e1tber of you separately should you not be able to attend
together. We would also be greatly honored if you were to address the
graduating students and their friends and families at the appropriate time
during the Commencement Exercises.
�President Bill and Mrs. Hillary Clinton
February 23, 1994
Pagel
I appreciate the heavy demands on your schedule. I also understand that
you may not at this early date be able to accept this invitation definitively. It
would, however, be helpful to have some early indication from you as to the
likelihood of your being able to be with us on the 18th of Juile.·.
· The entire University community hopes you will be able to honor us
with your presence this June, and I look forward to hearing from you.
President
ARW:jlp
��Copyright 1984 Information Access Company;
Copyright National Review Inc. 1984
National Review
September 7, 1984
SECTION: Vol. 36 ; Pg. 26; ISSN: 0028-0038
LENGTH: 5250 words
HEADLINE:
Brown v. Board
of Education at 30.
BYLINE: Erler, Edward J.
BODY:
THE THIRTIETH ANNIVERSARY of Brown v. Board of education
invites aserious re-examination of that momentous case. The most
pressing question is how a decision that was once hailed as
signaling the demise of the despised doctrine of "separate but
equal" now serves as the justification for it. Lawrence School,
recently remarked: "It remains true ... that judical rejection of
the 'separate but equal' talisman seems to have been accompanied
by a troublesome lack of sympathy for racial separateness as a
possible expression of group solidarity." Other prominent
scholars speak unabashedly of the "rights of race." These
luminaries surely know that the mere repetition of the argument
for a "color-blind" Constitution urged by Justice Harlan's famous
dissent in Plessy v. Ferguson (1896) would be insufficient for
the establishment of the radical welfare state, since the goal of
the radical welfare state is not equal protection of the lws, but
the protection and promotion of "equal respect and dignity." What
has not been understood, however, is that the Brown case did not
really overrule the "separate but equal" doctrine--which is why
the Court has reeently found it so easy to "ressurect" it.
The other question to be broached when reconsidering the
Brown case is howit creasted the modern universe of judicial
activism. According to G. Edward White, Earl Warren's most recent
biographer, what allowed Warren to become the demiurge of
judicial activism was his unique ability to disregard the
Consitution and the dictates of principled jurisprudence when
they stood in the way of what "he perceived to be ethical
imperatives." As White remarks, "Warren ... equated judicial
lawmaking with neither the dictates of reason, as embodied in
established theory of the judge's role, nor the alleged 'command'
of the constitutional text, but rather with his own
reconstruction of the ethical structure of the constitution"
(emphasis added) • In this regard, the Brown decision represented
Warren's greatest triumph.
In the wake of the Court's dramatic about-face in 1937, the
liberalism ofthe post-New Deal Court generally consisted of
deference to legislative judgments. This was a passive role that
�recognized Congress's primacy in policy-making, and was designed
to check only the most egregious legislative transgressions of
the Constitution. Eventually, however, the Court was confronted
with the question of what its obligations were in the face of
legislative inaction. Brown was the Court's answer. In
subsequent years the Warren Court made it clear that
constitutional majorities were acceptable only so long as they
produced the proper results; when the results were wrong, or not
forthcoming, the Court would assume a constitutional obligation
to intervene. The progressivism that had infromed Warren's
political career regarded legislatures as the mere
representatives of "special interests." Thus laws were believed
to reflect only the brokered interests of the factions that
dominated the various legislatures throughout the nation.
According to the progressive creed, the proper antidote was a
thoroughgoing majoritarianism. Warren, however, came to regard
the majority itself as yet another special interest seeking to
promote its advantage at the expense of other interests,
particularly at the expense of "discrete and insular minorities."
Whereas it was once thought that in a pluralist democracy the
majority could safely rule in the interest of the whole, the
Warren Court thrust itself into the role of "virtual
representative" of these "discrete and insular minorities." Even
the conservative Burger Court has not disdined to play this role.
The late Alexander Bickel once remarked that " Brown v.
Board of Educationwas the beginning." And so it was--the
beginning of the erosion of the notion of equal protection of the
laws and the proper role of the judiciary in a scheme of
constitutional government. A scant four years after the Brown
decision, a unanimous Court declard, in Cooper v. Aaron, that
"the judiciary is supreme in the exposition of the Constitution,"
and since this was said to be "a permanent and indispensable
feature of our constitutional system," it followed, according to
the Court's irrefutable logic, that "the interpretation of the
Fourteenth Amendment enunciated by this Court in the Brown case
is the supreme law of the land." This statement, of course,
utterly confounds the Constitution and the Court's exposition of
it; it conflates the Constitution with constitutional law. Such a
basic misunderstanding is hardly the stuff of constitutional
government, for it would indeed transform the Court into a
"continuing constitutional convention." In Chief Justice
Marshall's famous phrase, that would make "written constitutions
• • • absurd," since it would usurp the "original right" of the
people to establish the "fundamental principles" of the
Constitution, a right from which all legitimate authority
emanates.
The principal task of the Supreme Court created in the
Constitution is nodifferent from that of the legislative and
executive branches--to stand as the representative of the
superior will that created the Constitution itself. It used to
be an article of common knowledge that, as Justice mathews put it
�in 1884, "written constitutions are limitations upon all the
powers of government, legislative as well as executive and
judicial." As constitutional agents, the courts occupy a position
inferior to that of the Constitution itself. Even though the
Supreme Court may be the final expositor of the Constitution in
the context of deciding particular cases, the Constitution is
superior to any exposition of it by the Court. To maintain that
what the Court says about the Constitution is the supreme law of
the land is to confuse means and ends. Precisely such a confusion
was the hallmark of the Warren Court.
II.
Despite its notoriety and the voluminous literature it has
generated, theBrown case has not yet been fully understood. The
most puzzling aspect of the decision is that it did not once
refer to Justice Harlan's famous dissent in Plessy. This is
particularly striking since it was Harlan's dissent that for more
than a half-century served as the rallying point for the kind of
activist liberalism the Warren Court would eventually come to
epitomize. In his Plessy dissent Harlan had remarked:
Our Constitution is color-blind, and neither knows nor
tolerates classesamong citizens. In respect of civil rights, all
citizens are equal before the law. The humblest is the peer of
the most powerful. The law regards man as man, and takes no
account of his surroundings or of his color when his civil rights
as guaranteed by the supreme law of the land are involved.
A New York Times editorial, commenting on the Brown decision
at the time ofits announcement, held that
Now the words Justice Harlan used in his lonely dissent in
Plessy v.Ferguson have become in effect, by last Monday's
unanimous decision of the Supreme Court, a part of the law of the
land . . . • there was not one word in Chief Justice Warren's
opinion that was inconsistent with the earlier views of Justice
Harlan.
That editorial was very much mistaken. Chief Justice
Warren's opinion inBrown did not amount to a vindication of
Harlan's illustrious dissent; in fact, it rested on the same
ground of interpretation as the majority opinion in Plessy.
That, indeed, may well be the reason that Harlan's dissent was
never mentioned.
In the Brown case, Chief Justice Warren wrote:
To separate schoolchildren solely because of their race
generates a feelingof inferiority as to their status in the
community that may affect their hearts and minds in a way
unlikely to be undone. . . . Whatever may have been the extent
of psychological knowledge at the time of Plessy v. Ferguson,
this finding is amply supported by modern authority. Any
�language in Plessy v. Ferguson contrary to this finding is
rejected.
We conclude that in the field of public education the
doctrime of "separatebut equal" has no place. Separate
educational facilities are inherently unequal emphasis added •
Justice Brown, writing for the majority in Plessy, had
remarked:
We consider the underlying fallacy of the plaintiff's
argument to consist inthe assumption that the enforced separation
of the two races stamps the colored race with a badge of
inferiority. If this be so, it is not by reason of anything
found in the act, but solely because the colored race chooses to
put that construction upon it.
It should be clear from a comparison of these two quotations
that Brownrests upon the same ground of interpretation as Plessy.
According to Warren, the real deficiency of Plessy was not any
defective principle or constitutional interpretation, but
inadequate knowledge of psychology. Plessy was rejected only
insofar as it was inconsistent with the "authority" of modern
psychology. But what most commentators have failed to realize is
that the reliance on modern psychology as the authority for the
Brown reasoning left intact the constitutional reasoning of
Plessy.
The standard used by both Plessy and Brown was that of
"stigma." Plessyconcluded that a mere legal separation of the
races in railway cars did not imply stigma, i.e., that the
separation did not brand the black race as
"inferior." If blacks "felt" that the separation branded them as
members of an inferior race, this was, the Plessy majority
concluded, a "feeling" contrary to fact. Brown concluded that
segregation in the field of education did imply such stigma, that
a "feeling of inferiority" was a fact of inferiority from the
point of view of the equal-protection clause. The difference
between the two cases was therefore a matter of factual
interpretation, not a difference as to requirements imposed by
the Constitution. In both cases, the Court agreed that in the
absence of any stigma implied in the segregation of the races the
Constitution was not offended. Indeed, "stigma" is the very
standard the Court and most constitutional scholars accept to
this day as appropriate for determing equal-protection rights.
The concept of "stigma," however, inevitably fails as a
ground forabolishing racial classifications. Thus Brown did not
require an end to all racial segregation as a matter of
principle, but only an end to segregation that "stigmatizes" or
produces "feeling of inferiority" in one race. The ruling held
narrowly that in the context of segregated grammar-school
education such "feelings of inferiority" did indeed amount to
�"stigma." Whether stigma would be the by-product of other
segregated activities was left open by Brown.
It could well be argued that by establishing the racial-class
concept of"stigma" as the standard of equal protection, the Brown
decision granted new life to the "separate but equal" doctrine of
Plessy. Its renewed vigor was made abundantly clear in Justice
Blackmun's separate opinion in Bakke, 24 years later:
I suspect that it would be impossible to arrange an
affirmative-actionprogram in a racially neutral way and have it
successful. To ask that this be so is to demand the impossible.
In order to get beyond racism, we must first take account of
race. There is no other way. And in order to treat some persons
equally, we must treat them differently.
Indeed, the Supreme Court has several times intimated that
"benign" racialclassifications are justified because they do not
involve the stigma of invidious discrimination. The recipients
of the benefits that accrue from the "benign" classification are
said not to be branded as members of an "inferior race," as they
would by if the classification were designed to harm rather than
benefit a racial class. The implication is that the Fourteenth
Amendment is not offended as long as no stigma exists, even if
individuals must bear burdens created by a classification that
would ordinarily be prohibited by the equal-protection clause. A
recent Court of Appeals decision, citing Blackmun's Bakke
opinion as authority, noted that "race-conscious programs" are
valid unless they impose "a constitutionally impermissible
stigma." But as the Court proceeded laconically to note, "The
majority group is rarely, if ever, stigmatized."
III.
What happened here? To use the idea of stigma as a
racial-class concept isto translate equal-protection rights into
class rights. Indeed, the Court has come perilously close to
converting the doctrine of individual rights--a doctrine
presupposed by the whole American tradition--into a doctrine of
class rights. The source of the idea of class rights can already
be found in an infamous footnote by Justice Stone in the Carolene
Products case (1938) . Stone remarked that any legislation
touching upon the class interests of "discrete and insular
minorities"--those minorities said to be permanently isolated
from the majoritarian political process--would be subject to
"more searching judicial inquiry" than ordinary legislation. The
implication was that such minorities were unable to protect their
interests through the majoritarian political process and should
therefore receive the special solicitude of the Court.
The Court made little use of this concept until the early
1970s, when itbegan to delineate the class characteristics of
such groups. The latter included those who had been "saddled with
such disabilities, or subjected to such a history of purposeful
�unequal treatment, or relegated to such a position of political
powerlessness, as to command extraordinary protection from the
majoritarian political process." Although race and nationality
seem to have been firmly established as class characteristics of
the "discrete and insular minority," the Court has hitherto
refused to extend such status to illegitimates, the poor, or
conscientious objectors.
The Bakke case in 1978 presented the problem in a new light.
The questionwas whether the same "solicitude" should be applied
to test a government action designed to benefit rather than
injure a
"discrete and insular minority." The University of California
used
the Carolene Products case as its authority for arguing that
"strict scrutiny" was reserved exclusively for laws injuring such
minorities. Four members of the Court (Brennan, White, Marshall,
and Blackmun in their "joint separate opinion") agreed with the
university, arguing that individual members of the majority
needed no protection from the majoritarian political process that
authorized the actions of the university. They reasoned in
effect that any injury to an individual member of the majority
is, as it were, self-inflicted, because that individual is a part
of the ruling majority. From this point of view, the
equal-protection clause only protects against injuries
perpetrated by the majority; an individual member of the majority
would thus have no standing to complain of injury, because the
injury was not suffered at the hands of "others."
The Court subsequently accepted this line of argument in the
Weber case of1979; it declared that the intention of the Civil
Rights Act of 1964 was to provide class remedies for class
injuries. Here the implication was that a member of the white
majority had no standing since, again, he was a member of the
majority that passed the legislation that led to the injury of
which he complained. Even though the Civil Rights Act explicitly
refers to "individuals," and in unequivocal terms prohibits the
kind of racial classification upheld by the decision, the Court
insisted that the rights at issue could be understood only in
terms of the racial-class status of those involved. The implicit
argument was that only those classifications that amounted to
"stigma" were prohibited by the Civil Rights Act and that
"benign" racial classifications are not stigmatizing.
Fullilove v. Klutznick represented the next step; it upheld
a racialclassification that was expressed on the face of a law.
Fullilove involved a challenge to the Minority Business
Enterprise portion of the 1977 Public Works Employment Act. The
latter provided a 10 per cent set-aside for minority businesses
in local public-works projects. This applied to blacks,
Hispanics,
�Orientals, Indians, and Aleuts. Writing for a plurality, Chief
Justice Burger remarked that Congress's power under section five
of the Fourteenth Amendment was "equated . • • with the broad
powers expressed in the Necessary and Proper Clause." He also
noted that "'sharing of the burden' by otherwise innocent parties
is not impermissible." The irony was that at its inception the
idea of the "discrete and insular minority" was designed to
curtail such deference to legislative judgments when racial
classifications were involved.
According to a great principle of liberal jurisprudence, when
the law hascreated an inquiry, it must afford a remedy. But a
necessary concomitant of this principle is that no one can be
made a part of the remedy who has not been a part of the injury.
Both of these precepts derive from the assumption of individual
moral responsibility. As Justic Powell explained in Bakke,
"There is a measure of inequity in forcing innocent persons in
respondent's position to bear the burdens of redressing
grievances not of their making." Using class considerations as a
means of fashioning equitable remedies for such injuries as
"historic" discrimination or "the present effects of past
discrimination" will inevitably destroy the possibility of a
jurisprudence based on constitutional principles. Only if the
equal-protection clause is viewed as the guarantor of individual
rights can the Constitution be applied in a non-arbitrary manner.
As the Framers of the Fourteenth Amendment, as well as the
Framers of theConstitution, quite certainly knew, class politics
is not compatible with constitutional government. Prior to
Brown, the Court steadfastly insisted that the "rights created by
the . • . Fourteenth Amendment are, by its terms, guaranteed to
the individual. The rights established are personal rights."
Moreover, the Civil Rights Act of 1964 maintained the same
perspective. It is a perfect expression of the Fourteenth
Amendment's requirement that no individual should be required to
carry the burden of a racial classification.
In Bakke, Justic Powell persuasively argued that the Court
has neverapproved a remedy based on race absent "clearly
determined constitutional violations" and a clear demonstration
of individual injury. Yet a majority of the Court now seems
ready to argue, not for the vindication of discernible
constitutional rights, but for remedies for unspecified past
discriminations identified solely by class. As Justice Marshall
has remarked, "It is unnecessary in twentieth-century America to
have individual Negroes demonstrate that they have been victims
of racial discrimination; the racism of our society has been so
pervasive that none, regardless of wealth or position, has
managed to escape its impact." Yet, the only way Allan Bakke
could be said to have been involved in the unspecified injuries
that produced racial disproportion in California's medical
schools is if all members of Bakke's racial class--all whites
--are somehow guilty of all past discrimination and the present
�effects of that discrimination; their individual actions must be
held irrelevant. Without such reasoning, it is impossible to
argue that Bakke was not injured by the actions of the university
that refused to admit him.
IV.
Let us return to Brown. Since Chief Justice Warren failed to
articulate Anyconstitutional principle for the decision, it is
difficult to believe that a simple reliance on Harlan's Plessy
dissent, with its invocation of a "color-blind" Constitution,
would not have served the cause of liberal democracy much better.
Today, hardly anyone doubts that the Brown decision reached the
right result in invalidating state-supported segregation of
schools. But, as Judge Frank once remarked, "a bad reason can be
given for a good decision," and in the case of Brown, the bad
reason has been more influential than the good decision. Warren
had good constitutional arguments available to him, and it was
completely unnecessary to resort to the desultory psychological
arguments of Kenneth Clark. Yet Warren seemed intent upon
ignoring the Constitution; he went so far as to remark that the
Fourteenth Amendment could shed no light on the question.
The Chief Justice noted that researches into "circumstances
surrounding theadoption of the Fourteenth Amendment" might "cast
some light" but are "at best .
inconclusive." In a passage
that surely has no parallel in the annals of legal reasoning.
Warren goes on:
The most avid proponents of the post-War Amendments
undoubtedly intendedthem to remove all legal distinctions among
"all person born or naturalized in the United states." Their
opponents, just as certainly, were antagonistic to both the
letter and the spirit of the amendments and wished them to have
the most limited effect. What others in Congress and the state
legislatures had in mind cannot be determined with any degree of
precision.
Why should the opponents of the Civil War Amendments be a
part of thecalculus that Warren constructs here? After all, they
lost. It borders on the disingenuous to say there was vigorous
opposition to those amendments and that such opposition casts
doubt on the intention of the Framers of them.
Education never became a subject of the debates over passage
of theFourteenth Amendment, and its intended effect on segregated
schools was never mentioned. Indeed, under the
circumstances--especially at a time when compulsory public
education was not widespread--it would have been surprising if
the subject of education had become a part of the debate. It is,
however, possible to extend the principle of the Fourteenth
Amendment to cover areas that were not discussed. That is the
essence of judicial statesmanship: applying fundamental
principles to changing circumstances, recognizing that while the
�circumstances change the principles themselves remain the same.
Warren seems, however, not to have believed that there were any
principles embodied in the Constitution or its amendments.
The primary purpose of the Framers of the Fourteenth
Amendment was to securefor the newly freed slaves federal
citizenship and to extend to them the whole panoply of civil
rights that are the necessary elements of federal citizenship.
After all, the Dred Scott case had never been overruled. In
order to forestall any attacks upon the citizenship of the former
slaves, the Framers made it clear that federal citizenship was
primary and state citizenship derivative, so that any person who
was a citizen of the United States was automatically a citizen of
the state where he resided. It became impossible for the states
to withhold state citizenship and the rights attached to it.
Whatever rights were extended to white citizens would be extended
equally to blacks.
That, in fact, is what is meant by equal protection of the
laws, whichassumes that racial classifications can have no
legitimate role to paly in constitutional government. Over the
years the Court developed this assumption into the doctrine of
"strict scrutiny," which viewed all racial classifications as
"inherently suspect," and presumably unconstitutional. As
applied by the
Court, this scrutiny rarely failed to invalidate the law in
question. In fact the Warren Court brought this doctrine to
perfection, invalidating a variety of discriminatory legislation.
If Warren had used this argument in Brown, the invalidation of
the state segregation laws would have retained some aura of
constitutional jurisprudence. Since the 1930s, in fact, a whole
series of cases involving law schools and graduate schools had
used this basic argument to invalidate state-supported
segregation. None of these decisions overruled Plessy, to be
sure, but by 1954 so little was left of the "separate but equal"
doctrine that a direct attack on Plessy was the best
constitutional strategy. In the Brown case the burden would have
been on the states to show any compelling necessity of
segregation in grammar schools, and the states would have been
unable to do so.
Unfortunately, Warren chose other grounds for the explication
of theequal-protection clause. He did not require a
demonstration of individual injury. As he remarked, segregated
schools "may affect" the "hearts and minds" of schoolchildren "in
a way unlikely to be undone." There was no showing of individual
injury, nor any evidence of the remedy's effectiveness. The
formulated remedy was classwide, because the injury was presumed
to be classwide. The Warren Court quickly learned that the
formulation of such extensive remedies was the most effective
vehicle for the expansion of judicial power. Thus busing--a
racial-class remedy based on racial proportionality--was an
inevitable outcome of the Brown case. Racial classification, once
�•
thought to have been abolished by Brown, is now widely recognized
to be required by it.
The intrusion of class into the Constitution is a dangerous
proposition, oneclearly at odds with the moving principles of the
regime--principles ultimately derived from the proposition that
"all men are created equal." Class considerations deny this
equality; they abstract from the individual and ascribe to him
class characteristics that are different from--and necessarily
unequal to--those of individuals in other classes. If there were
no inequalities implicit in class distinctions, such distinctions
would simply be superfluous.
The Founders of our regime knew well that all class politics
wasincompatible with the principles of liberal government. For
example, Madison described the problem of republican
constitutionalism in this manner: "It is of great importance in a
republic, not only to guard the society against the oppression of
its rulers; but to guard one part of the society against the
injustice of the other part." The first aspect of the problem is
addressed by the separation of powers; the second, and more
difficult, requires an extensive regime with a "multiplicity of
interests" designed to prevent the formation of a "majority
faction." Madison reasoned that in a large, diverse republic it
will rarely be in the interest of the majority to invade the
rights of the minority. Since, in all probability, there will be
no permanent class interests in society, it is unlikely that
there will be either permanent majorities or minorities; thus the
majority will never develop a sense of its own identity and
interest. Such a situation renders it unlikely that "a majority
of the whole will have a common motive to invade the rights of
other citizens." The majorities that do form will be coalitions
of minorities that come together for limited self-interested
purposes; as private-interest groups they remain largely
unaffected by the fact that they have become a part of the
majority. In the structure of the regime, the Founders expected
the struggle between interests to replace the struggle between
classes. And, by and large, that solution has worked remarkably
well. There have been no permanent majorities, and
certainly none based exclusively on race.
Yet the Court has come to view the great civil-rights acts of
Americanhistory as essentially remedies fashioned by a permanent,
monolithic majority for discrete and insular' minorities. Such
remedies, of course, necessarily work against individual members
of the majority. But the Court is mistaken: The guarantee of
justice does not rest on a test of who is disadvantaged and
whether the disadvantage amounts to "stigma," but on whether
individual rights are protected and the common good is served.
The most obvious cases in point are the Civil Rights Act of
1964 and theVoting Rights Act of 1965. In the election of 1960,
the solid vote of urban blacks for John Kennedy accounted for his
�•
narrow margin of victory over Richard Nixon. Since the same
urban vote had gone for Dwight Eisenhower in 1956, the evident
political strategy for the Democrats in the 1960s was to
consolidate this vote in the Democratic camp. The Civil Rights
Act and the Voting Rights Act, whatever altruism they may have
displayed as remedies for "historic discrimination," were in
large part an attempt to keep the urban black vote solidly
Democratic. They were thus not laws intended to protect those
who were "isolated from the majoritarian politcal process," but a
recognition that blacks had become a significant and crucial part
of the governing majority. This is an example of Madisonian
politics at its best: It can be to the interest of the majority
to protect and extend the interests of the minority.
Probably no finer examples of legislation serving the common
good can befound than the Civil Rights Act and the Voting Rights
Act. But treating these acts as class remedies for class injuries
undermines the ground of the common good upon which they rest.
Understanding American politics exclusively in terms of
"monolithic" majorities and "discrete and insular minorities"
precludes the possibility of ever creating a common interest or
common ground that transcends racial-class considerations.
If the Court continues to press the constitutional legitimacy
ofracial-class claims, it is possible that the Court will itself
bring into existence the monolithic majority that it mistakenly
insists has always been the dominant feature of American life.
It will be of no avail for the Court to remind the majority that
its claim of racial-class interests carries the imprint of stigma
and is therefore desallowed. Such constitutional niceties will
carry little weight once the idea of racial-class interests ahs
become legitimate. Progress in race relations in this century has
resulted from an assiduous adherence to the principle that the
Constitution is color-blind. Now, at almost the 11th hour, when
support for racial discrimination has been virtually eliminated
from the legal system, we are told that the principle of a
color-blind Constitution is inadequate to achieve the desired
results. The full implementation of equality now requires, we
are told, a Constitution that comprehends "race consciousness."
It should go without saying, however, that once the idea of
racial consciousness is allowed to animate the law, there will be
no guarantee that it will be used for constructive purposes. If
racism is as endemic to the American system as the supporters of
a race-conscious law claim, one would think they would be
reluctant to bring the issue of race once again to the forefront
of the nation's consciousness.
By turning the Fourteenth Amendment into an instrument of
class politics,the Court runs a considerable risk. It may
encourage the formation of a majority faction, as the majority
inevitably becomes more aware of its class status as a
majority--indeed as a racial-class majority. Alternatively, it
may transform our regime into one no longer based on majority
rule. Either possibility should give pause to the Court, and if
�.
not to the Court, then all the more to the rest of us.
lAC-NUMBER: IAC 03423785
lAC-CLASS: Magazine
LANGUAGE: ENGLISH
LOAD-DATE-MDC: December 20, 1993
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�Copyright 1988 Information Access Company;
Copyright Scholastic Inc. 1988
Scholastic Update
April 8, 1988
SECTION: Vol. 120 ; No. 15 ; Pg. 20; ISSN: 0745-7065
LENGTH: 600 words
HEADLINE: Five landmark decisions; Marbury v. Madison; McCulloch
v. Maryland; Plessy v. Ferguson; Brown v. Board of Education;
Roe v. Wade
BYLINE: Relin, David Oliver
BODY:
FIVE LANDMARK DECISIONS
"The Constitution," said former Supreme Court Justice Charles
Evans Hughes,"is what the judges say it is." In those simple
words, Hughes summed up a complicated concept. While the
Constitution is more than 200 years old, it is a living, changing
tool at the center of our democracy. The nine Justices of the
Supreme Court decide how the Constitution applies to today's
world. The five cases below, experts agree, have shaped the way
in which we see ourselves as a country. Marbury v. Madison
(1803): For the first time, the Court declared a U.S. law
unconstitutional.
William Marbury sued Secretary of State James Madison (left)
for blockingMarbury's appointment as a justice of the peace.
Marbury argued that an Act of Congress--the Judiciary Act of
1789--gave the Court the power to force Marbury's appointment.
The Court disagreed. Congress misinterpreted the Constitution,
Chief Justice John Marshall argued, by giving the Court this
power. Marshall used this case to establish the Court's crucial
governmental role as the final interpreter of the Constitution.
McCulloch v. Maryland (1819): In a power struggle between a
state and the federal government, the Court sided with the U.S.
government.
After Congress created the Bank of the U.S. in 1791, the
state of Marylandobjected. Only the states, Maryland's argument
went, had the right to create banks. Furthermore, Maryland
argued, states had the right to tax banks established by the
federal government.
In an opinion written by Chief Justice John Marshall (right),
the Courtdisagreed on both points. The Constitution, Marshall
said, gave Congress certain "implied powers"--including the right
to create banks. He also said that states could not alter U.S.
laws. The decision helped establish the central authority of the
�Constitution and the federal government. Plessy v. Ferguson
(1896): Faced with the question of whether blacks and whites
could be legally segregated, the Court chose segregation. The
case involved Homer Plessy, a black, who sat in a "whites-only"
car on a Louisiana railroad. Plessy was arrested and charged
with violating Louisiana's segregation laws. Such laws were
known as "Jim Crow" laws (see headline at right) . The Court
sided with Louisiana. It ruled that the 14th Amendment
guaranteed political--but not social--equality. Their decision
stated that "separate but equal" accommodations for blacks were
legal. The ruling gave federal approval to racial segregation
for the next 58 years.
Brown v. Board of Education (1954): As
headlines (below) proclaimed, the Court unanimously banned public
school segregation. The case arose when Oliver Brown, a black,
sued the Topeka, Kansas, Board of Education. Brown's daughter
Linda had been refused admission to an all-white school near
their home. Instead, she was assigned to an all-black school 20
blocks away. Chief Justice Earl Warren ruled that "separate
educational facilities are inherently unequal." The decision
reversed the Plessy v. Ferguson ruling and spelled the end of
racially segregated schools. Roe v. Wade (1973): In one of the
most hotly debated cases in Court history, Norma McCorvey (right)
challenged a Texas law that forbade abortion during the first
three months of pregnancy. Testifying under the assumed name
Jane Roe, McCorvey sued the Dallas district attorney responsible
for enforcing the law. The Court sided with Roe. Justice Harry
Blackmun wrote tha t the right to privacy protects "a woman's
decision whether or not to terminate her pregnancy."
GRAPHIC: photograph
lAC-NUMBER: IAC 06552485
IAC-CLASS: Magazine
LANGUAGE: ENGLISH
LOAD-DATE-MDC: December 21, 1993
�Copyright 1990 Information Access Company;
Copyright Scholastic Inc. 1990
Scholastic Update
January 26, 1990
SECTION: Vol. 122 ; No. 10 ; Pg. 8; ISSN: 0745-7065
LENGTH: 1848 words
HEADLINE: Five "little" people who changed U.S. history; Supreme
Court cases: Dred Scott v. Sandford, 1857; Brown v. Board of
Education, 1954; Gideon v. Wainwright, 1963; Miranda v. Arizona,
1966; Roe v. Wade, 1973
BYLINE: Sudo, Phil
BODY:
FIVE "LITTLE" PEOPLE WHO CHANGED U.S. HISTORY
Dred Scott v. Sandford, 1857
Dred Scott said he never understood "all the fuss they made"
over his case.He only wanted his freedom.
But in a historic ruling in 1857, the Supreme Court denied
Scott his freedomand upheld the legality of slavery. The
decision caused such bitter controversy that within four years,
the nation's Northern and Southern states took up arms against
eac~ other in the Civil War.
Scott was born a slave around the year 1795. In 1833, he was
sold to anArmy surgeon named John Emerson, who lived in Missouri,
a state that allowed slavery.
In 1834, the Army transferred Emerson to Illinois--a state
that prohibitedslavery. Nevertheless, Emerson took Scott along
as a house servant. Later Emerson was transferred to an area in
the Wisconsin Territory, which later became Minnesota. That
territory also prohibited slavery. Scott followed him there as
well.
In 1838, Emerson and Scott returned to Missouri. When the
surgeon diedthere in 1843, Scott became the property of Emerson's
widow. With the help of white, antislavery lawyers, Scott sued
the widow for his freedom. He argued that his years spent in
free territory had made him a free man. Even though he had
returned to a state where slavery was legal, he had done so with
the rights of a free man.
As the case wound through the courts, Scott was sold to John
A. Sanford. ASupreme Court clerk misspelled Sanford's name and
entered the case as Dred Scott v. Sandford.
�In a 7-2 decision, the Court ruled against Scott. Chief
Justice Roger B.Taney said blacks were not U.S. citizens and had
"no rights which the white man was bound to respect."
Furthermore, the Court said, laws prohibiting slavery were
unconstitutional, because they deprived a person of his slave
"property" without due process of law.
Northern states were outraged because the ruling went against
theirantislavery laws. Southern states demanded that the slavery
rules be enforced. The angry division sent states hurtling toward
the Civil War.
Two months after the Court's decision, Sanford sold Scott to
a new owner,who gave the famous slave his freedom. Scott died a
free man in St. Louis a year later.
Brown v. Board
of Education, 1954
Linda Brown lived four blocks from Sumner Elementary School
in Topeka,Kansas. But she couldn't go there. Sumner accepted
only white students, and Linda was black.
Linda's father, Oliver, was tired of having to watch his
daughter walk sixblocks every day, wait for a bus, and head off
to a black school three miles away. So when she was 7, he tried
to enroll her in Sumner.
Linda was quickly rejected. Kansas was one of 18 states in
1951 wheresegregation was legal. But with the help of a lawyer
named Thurgood Marshall, Oliver Brown sued the Board of Education
of Topeka, seeking an end to segregated schools.
Three years later, the Supreme Court voted 90- in favor of
Brown. In amajor victory for the civil rights movement, the
Court agreed that forced segregation "generates a feeling of
inferiority" among minorities, and rejected the concept of
"separate but equal" facilities--a rule that had stood since
1892.
But segregation did not die easily. Many states refused to
adhere to theCourt's ruling. It took years of protest by
concerned citizens before states such as Alabama, Mississippi,
and Louisiana allowed blacks and whites to sit together in the
same classrooms.
Today, Thurgood Marshall is a Justice of the Supreme Court.
And LindaBrown--now Linda Brown Smith--is a 46-year-old
grandmother.
She still lives in Topeka, where she teaches piano. But her
important placein American history has not brought her happiness.
In 1986, Smith told People magazine, "I am real bitter." Despite
the end to legal segregation, Topeka's elementary schools are
�still "segregated" because blacks and whites live in separate
neighborhoos and go to separate schools. "My children weren't •
. • exposed to all races in school, and that is a big part of
growing up and preparing for adulthood." She does not want the
same fate for her grandchildren, so she recently called on the
local school board to further integrated Topeka's schools.
Ironically, after fighting to get into the school closest to
herneighborhood, Smith now favors busing children to different
schools to promote racial diversity.
Gideon v. Wainwright, 1963
Clarence Gideon had been in and out of prison for much of his
51 years,usually on charges of petty thievery. So it was no
surprise when, in 1961, police picked him up for breaking and
entering a pool hall in Panama City, Florida.
ButGideon said he was innocent. Too poor to ·afford a lawyer,
he demandedthe court appoint him one.
Under Florida law, only accused murderers were given
court-appointedlawyers. Gideon was forced to represent himself.
He was convicted and sentenced to five years in jail.
From his cell in the florida State penitentiary, Gideon,
prisoner #003826,began studying the law. His reading convinced
him that he had been denied his right to legal representation.
In 1962, Gideon sent a package to the Supreme Court. The
letter inside washandwritten in pencil. Using the legal terms he
had learned, Gideon asked the Court to overturn his conviction.
By denying him a lawyer, he said, the Florida court had denied
his rights to "due process of law."
The Court agreed to hear Gideon's case. It was filed against
Louis L.Wainright, the director of Florida prisons.
A year later the panel voted 9-0 in favor of Gideon. "It is
intolerable ina nation which proclaims equal justice under the
law as one of its ideals that anyone should be handicapped in
defending himself simply because he happens to be poor," the
Court said. From then on, all people accused of crimes were
entitled to legal representation.
Gideon received a new trial, and a lawyer from the American
Civil LibertiesUnion offered to represent him. But ironically,
after fighting so hard for the right to legal representation,
Gideon fired the lawyer on his first day back in court. He said
he would rather represent himself.
But this time, the judge refused to allow Gideon to represent
himself. Thecourt appointed Gideon a lawyer of his choosing.
The new lawyer won Gideon an acquittal, and that night, the newly
�free man went to the pool hall for a visit.
Before he died in 1972, a reporter asked him, "Do you feel
like youaccomplished something?"
Gideon replied, "Well, I did."
Miranda v. Arizona, 1966
Ernesto Miranda was working in a Phoenix warehouse when the
Arizona policearrested him on charges of kidnaping and rape.
After hours of questioning, Miranda confessed to the crimes, and
in 1963, he was sentenced to 20-30 years in prison.
But his lawyer appealed the judgment, claiming the police
threatened Mirandaand forced his confession. Miranda, he said,
was denied consultation with a lawyer and did not know his
rights.
The case went to the Supreme Court, and in 1966, the Justices
supportedMiranda's claim by a 5-4 vote. The suspect's confession
had been obtained illegally, said Chief Justice Earl Warren, and
he put new limits on the power of police to question suspects. A
new trial was ordered.
Uncer the Court's ruling, nothing arrested persons say can be
used againstthem unless police inform them of certain rights: The
right to remain silent, the right to a court-appointed attorney,
and the right to have an attorney present during questioning.
Once they are told of those rights, arrested persons must also be
told that, from that point on, anything they say can be used
against them.
Thus were born the famous "Miranda rights." Ever since,
police across thecountry have been issued "Miranda cards,"
containing the phrases they must read to suspects upon arrest.
"You have the right to remain silent" and "Anything you say can
be used against you" have been heard on countless TV shows as the
villain is being handcuffed.
Civil rights advocates praised the decision, saying it helps
remind policethat criminal suspects, however lowly they may seem,
are still human beings with civil rights. But many police were
frustrated by the ruling because it limited the evidence they
could use in court.
Throughout the 1980s, the Reagan administration sought to
overturn theMiranda decision. And, in fact, the courts have
chipped away at Miranda, making it easier for police to obtain
convictions.
As for Miranda himself, he received a new trial and was
reconvicted ofkidnaping and rape. The state paroled him in 1972,
and he drifted through the Southwest, occasionally autographing
�Withdrawal/Redaction Marker
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COLLECTION:
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�Comparing
The Suffering
Of Millions
Ex-Famkhm Aide
says -~ta~. Fared.·
·\lblse· Than Jews~
Ei-Farrakhan Aide
Minimizes Holocaust
By Rene Sanchez
: .. MuBAM.MA»,FroaaBI .
whO ha~ been ~ndemned for mak·
WuhingtGD Past Slafl Writer
Khalid Abdul Muhammad, a prominent member of the Nation of Islam
who has been widely denounced for
expressing antisemitic views, toured
the Holocaust Museum yesterday
and emerged contending that genocide against black people has been
far worse than what happened to
Jews.
After a 9<Mninute visit, Muhammad, accompanied by his young son
and several aides, told reporters that
the suffering Nazi Gerinany inflicted
on "S9"Cilled" Jews and other minorities during World War D was minuscule compared With the pain that
blacks have endured from whites for
centuries. At one point, Muhammad,
holding a poster-size portrait of a
lynching, stressed that the Holocaust lasted only for a decade. He .
refused to answer questions, then
left abruptly with his entourage.
Muhammad's brief remarks after
the museum tour infuriated jewish
leaders, who said that he had not
showed any hint of compassion for
the victims of the Holocaust and appeared instead to be minimizing its
significance simply to promote a. leeture he is _scheduled to give at Howard Unive~sity tonight on "the black
"'twas disgraceful," said David c.
riedman, director of the Anti-Defamation League's Washington office.
"Everything he said confinns that
this is a man consumed with hatred
for Jews. Hi~ visit to the museum
---..~rii-ii!wlft-8-Mtl~.: . . . . - - - . - -
But Muhammad's emphasis upon
leaving the museum was to say that
the suffering of blacks has been
overlooked for far too long and that
"'tbe black holocaust is 100 times
worse than any other holocaust in
. the annals of time...
He also asserted that 150 million
blacks died crossing the Atlantic in
the international slave trade. Some
historical sources c:Ontend that 7 to
15 million Africans came to the
Americas as slaves, and that 15 per·
cent of them .ilied in the passage
across the seas..
Friedman, ·of the Anti-Defamation League, Said that Muhammad
. is. breeding ~~veness by charg~
ing that one ininority had been in·
· ed with more pain throughout
history 'than another. "You can't
quantify sufferiDi," he said. "It's
pointless." . . .
·..
· ··Muhammad
to..
a1Jow re. . refUsed
.
porters to join him on his tour, and
!!!._~um,officials complied with his
request. :Sara ~oomfield, die· museum's director of Public programs,
led Muhammad on the tour and said
~t be
"genuinely interested" in what it ~picted. ·At one
point, Bloomfaeld said, Muhammad
~ood with his son, Farrakhail, ·before one exhibit that showed how
Jews had been slaughtered. "Boy, is
that sick," she said the son told his
ml'antisemitic COIIIIIMmts. including
LeOiiird Jeffries,· a :faculty member
at'.Ciiy 'COllege~'of'New York, and
Mimt ZUlu Shabul, :a· :Howard 1aw
stiMieftt :WhO led d1ant!i against Jews
in FebruarY while' PteJiaring a student 'Ci'
· for •· Muhammad
...
·· .. :·.
:
..
.
Tbat event has provoked • ·
spread debate ~ Howard's cam~
and has led to meetinp between top
wUvenlty ~·1iftd Jewish comll_l.'!*l' :leadei's.:ln recent weeks, a
Jewish historiin whO teaches at Yaie
University, David BiroR Davis, pOst·
·
·
a ~ at ·llpward on the
. of a
..
that the
~ar .would be embarrassed
Tonight's lecture at Howard Uni-
versity, which is .titlecl"Document·.
ing the ·Blade B~ust: i$ apon-
sored by the student group that
Shabazz leads, UnitY.· Nation. Yesterday, Howard President Franklyn
G. Jennifer voiced alarm over the
evenL
. .. · . , ::
.
,
"' want to ~.our deepest
~m that the Uaity Nation.orP.
seemed
nization has.chosen to.provide a plat·
form 011 .our campus for individuals
who are associated with blatantly antisemitic rhetoric,"Jennifer said in a
statement that .he said was made on
behalf of the university's board of
trustees.
·
·
father.
1
Muhammad, a former top aide to
Ironically, Muhammad devoted a
Nation of Islam leader Louis Farra- parl"ot his remarks after the Bolokhan, has bee~ immersed in contro- ' ca~t Museum tOur to praising How~
~ersy about ~s scathing denuncia·
anl'for allowing him to speak there
tions of jews smce late last year. In a regularly, saying that the university
speech to studen~s at Kean College was ..answering the call to free
of New jersey m November he speech"
'
charged that jews were "sucking
·
[blacks']) blood." He was later rebuked and stripped of his title by
THE 1'4SHINCTON Posr TvESDAl~ APRIL 19, 1994
Farrakhan, who nevertheless said
there was truth to his remarks.
An increasingly popular orator at
historically black colleges, Muham-~·
mad i.s on a program at Howard tonight with several other speakers
\\
See MUHAMMAD, 88, CoL 1
I
tt
�Farrakhan
aide: Blacks
treated worse~
Desda Moss
USA TODAY
By
Khallid Muhammad, the
aide whom Nation of Jslam
leader Louis Farrakban rebuked and demoted for anti-semitic speech, tried to upstqe
the exhibits at the U.S. Holocaust Museum Monday.
After a 1~-hour tour of the
museum, Muhammad re·
newed his assertion that blacks
in slavery suffered much more
than Jews in the Holocaust.
"We, over the past 6,000
years, the past 400 in particu·
Jar, have lost over 600 mW.Ion,
which means tbat the black
'holocaust' Is 100 times worse
.than any recorded," he said,
referrtng to slavery and the
scattering of Africans across
the globe.
In a well-planned media
event that left some museurngoers outraged, Muhammad
and his entourage showed up
without prior arrangement.
After his tour, he faced reponers, tlanked by huge photographs of a lynching. the burning body of a black man and a
diagram of the cargo hold of a
slave ship.
He declined to take questions and said he was in Wash·
ington for a joint appearance
tonight at Howard UniversitY
with two equally controversial
scholars- Leonard Jeffries of
City College of New York and
Tony Martin of Wellesley Col·
lege, Both have been accused
of anti·Semitic views.
Monday, a federal coun upheld the reinstatement of Jef·
fries, tired as chairman of the
Black Studies depanment at
AT HOLOCAUST MUSEUM: Khallld Muhammad and members of the Nation of Islam display photos of a
body of a black man Monday in washington, D.C. Muhammad says blacks in slavery suffered more than
the City College of New York caust, we paid a bell of a cost.• but people still listen."
Muhammad has maintained
for derogatory remarks about
Others at the museum found
Jews. But the coun ruled J~f· Muhammad's presence and ali active speaking schedule
since he was disciplined in
fries should not get $360,000 In words unsettling.
punitive damages and sent the
Anti·Defamatlon Leque re-. February by Farrakban for
case back for a trial on how , glonal director David Fried· making anti·Semitic remarks
much he should get
man said the visit was a "crude during a speech at New Jer·
Muhammad charged "so- and ugly attempt to use this sey's Kean College.
called Jews" with taking pan museum to promote his mesMuhammad's comments
ln an African holocaust
sage of bate. You can't quantifY have drawn rebukes from Jew·
Referrtng to a movie about pain and suffering."
Ish groups and several promi·
Holocaust rescuer Oskar
"We're very disturbed," said nent black leaders- including
Schindler, Muhammad said Holocaust survivor William Lu- Jesse Jackson and Congresthat while Jews got a kensburg. who volunteers at sional Black caucus Chairman
"Schindler's List," blacks got a the museum with his wife, Hel· Kweisi Mfume, D-Md.
"swindler's list"
en, al.c;o a survivor. "He twists
In response to the rally,
"We not only suffered a bolo- words. What he says Isn't true, Howard oftlclals announced
the university has scheduled a
faculty-student forum today "to
reamrm the traditions of toler·
ance and diversity."
The university also acknowl·
edged postponing a lecture ear·
ller this month by a noted Jew·
Ish scholar, David Brion Davis
of Yale University, out of concern he might be heckled,
Muhammad's appearance
overshadowed the Holocaust
museum's announcement. In
partnership with Fannie Mae;
of a program to teach Washington. D.C., students about the Jes.
sons of the Holocaust.
In NYC, morale low
for police and public
By Bruce Frankel
USA TODAY
V'
NEW YORK- The commissioner of
the nation's largest police force showed
up for roll call Monday at a somber
Harlem precinct house where 14 om·
cers were stripped of their shields,
handcuffed. and arrested last week.
For days, the city's newspapers have
been plastered with photos of 14 om.
cers charged with seiling dru~ protect·
lng dealers and acting llke the thu~
they were supposed to put behind bars.
With the promise of mo~;e arrests in
what Is already the biggest corruption
shake-up In a decade for the 31,000-olli·
cer depanment, Police Commissioner
William Bratton's afternoon visit to 30th
precinct house was no easy pep rally.
As tight-lipped omcers tiled Into the
brick-and-concrete station house, passersby continued to gawk at what has become a hall of shame.
"Anyone who wants a transfer can
have one, but we're encouraging" olli·
cers who want to be pan of turning the
precinct Into a national model ''to stay,"
said Branon.
The arrests - including two omcers
facing possible life sentences for drug
sales - are the legacy of two years of
l~vestigation by city and federal agen·
aes. They were foreshadowed In test!·
mony at corruption hearings last year
that revealed rogue cops who stole
dru~ and money and brutally enforced
their will without fear of omclal action.
While not systemic - the way New
York police corruption was a genera·
tion ago during the famous Serpico cor·
ruption case - experts say the current
corruption Is more brutal, corrosive
and ultimately destructive. And while
they salute the public etron to clean
house, they say much more Is needed,
including:
.
UNDER ARREST: Pollee officer Randolph Vasquez Is escorted
FBI head·
quarters Friday in New York City after his arrest in a corruption probe,
BRATTON: Police commissioner with
badges of two arrested officers
.,. Arresting and tiring supervisory
sergeants and lieutenants. "Until you do
that, this will not have a great Impact,''
says ex-a;lstant chief Aaron Rosenthal.
.,. Initiating more sting operations
and integrity tests.
.,. Detlnlng corruption as a crime by
pollee and creating an urgent and hostile climate toward It within the police
bureaucracy. "Elective law enforcement means no tolerance, period," says
Mark Moore of Harvard University.
.,. Establishing a full-time watchdog
to hold hearings, issue reports on cor·
ruption and audit the police depan.
ment's internal affairs.
The Mollen Commission. which began investigating corruption under for·
mer mayor David Dinkins, Is expected
to recommend an external monitor in
Its tlnal repon next month. Some ex·
perts say New York already Is doing a
better job of weeding out bad cops than
many other cities.
"C&tchlng corrupt cops requires goIng tlshlng. Most police departments ex·
pect the !Ish to jump out of the water,"
says Larry Sherman of the Crime Con·
trol Institute. "New York at least casts
out Its line."
Police corruption comes as little sur·
prise to most New Yorkers. They know
there's big money In dru8'(1eallng. and
cops - either lured by the desire to
have a share or frustrated by their fail·
ure to make a dent - are susceptible.
''There's nothing new about this.
What's unusual Is the way it's mush·
roomed,'' says Herb Kessler, 46, who
owns a coin laundry near the precinct
On the streets, In the barber shops
and bodegas, residents in the largely
Dominican neighborhood say they've
grown accustomed to police corruption
and brutality.
Some businessmen said that corrupt
or not, the omcers were the only ones
who stood between them and criminills.
Others talked with compassion about
how the shake-up was solllilg the repu·
tation of many good cops among the 191
omcers in the 30th precinct
·
Some didn't think the arrests went
far enough. ''They've just touched the
surface,'' says Mario Pimentel, 33, a
doorman. "I know that for sure."
Many residents scolred at the arfe'
solely of street-level omcers, whi
hlgher·ranklng omcers went unpl
!shed. Corruption, they say, doesn't su
with rookies. "Even a blind man c
see,'' says C.J. Monroe, 45.
For all the arrests and media conf1
ences, coin laundry attendant M. Ht
ton, 51, says she'll walt to see what bE
pens. "If I look out that window in Ju:
and July, and I don't see (drug dealer
on those four comers like little arml1
then I'll believe something hQ·.
changed."
C.
�Richard Cohen
·Global 'llibalism I
The film. aired oo aeveral
«
not bappeo but because no ooe filmed
them. Imagine the Bosman oonflict-the
raped Muslim women by Serbs. random
liveS iP Rwanda's capital city d Kigali and capricious erecutioa, torture too hor. when, suddenly, a man stepped forward rible to describe here and DOt ac1miJJi&.•
and beat them to death. The victims were tered, mind you, to elicit information or in
presumably Tutsis. members of the mi- punisbment of a aime but oo the basis d
nority tribe, and the killer was pn!8lllllnothing more than etbnic hatred. This is
ablY'. J;m;Qority Hutu. The vieJ8 ClOUid Europe, tbis year-the fonuer Yugosla. be.· 6:lrRiven for tbinlciog of Joaepb Coo- . via, the present oonditioo of~ra.r.-:.~ of Darkness: the c:laslic
Now some more pictures. We see the
. OOiel~about Africa and evil.
awful cmsequena!S of the killing of Pales'Whitt a reassuriog but fUie. thought. tinians by the mad Baruch Gold5tein in
MyJIP ftasbed ipmediately. to a similar HebnJo. Then we see Israeli- Jews
piece of film. k shows a man killiDg a slumped dead oo the seat of a commuter
groupci ....... and terri6ed people with bus, kiDed by an Islamic zealot. ~ our
a crowbar. Africa again? Not oo your life. camera pans to South Africa, where
It's Europe, tbis c::eotury. The man with blacks are kiDing other blacks. This is a
the l!IOwbar is kiDing jews. Behind him fight between lnkatha and the African
can be lel!ll arim1iD.1J German t10o1J8.
Natiooal Congress, we are told. Yes, but
' -~ aow let's run 80IIIe pictlns that it is alao a fight between the Zulus and the
cba't e.ist--lllt becauae 1be dit Xh
IIIJd, before tbat, the 80GIIed
rrom
the
~ uttworb. was &bot
afar.
It ~ 1101111! women beging for their
,
THt: WASHII\GroN Post Tll•~o;u""· APRIL 19. 1994
�/r.
Politics of Moral Annihilation
Clintoo is a victim of tbe
moral amdbilatioll. Wbat's
a now deeply rooted halit in
politics whereby it's aot
t!IIIIU8h simply to defeat, outaraue or
outpoll your political oppooeot In this
Dew approach to politics, tbe ODiy test of
W:tory is wbetber an adversary's moral
standing is thorougbly sbredded and
destroyed. A foe c:anoot simply be mistaken, fOOlish, impractical or wrooabeaded; he or abe bas to be made into
tbe moral equivaleat of Hitler, Stalin,
tbe Marquis de Sade or AJ Capone.
This trend by no meaas started with
Qiaton haters. On tbe cmtrary, C~~~M~er·
vative CJintoo basbers are motivated in
part by their aenae tbat Democrats 8lld
liberals were more tban happy to enpae
in moral annibilatiao when it suited their
purposes: against Robert Bork and Car·
eace Tbomas, .Plliott Abrams or Ed
Meese. By God, aay aome oo tbe rilbt. if
they could do it to our heroes, then we'D
do it to theirs. "Remember Clarence
Tbomas!" bas assumed the same moral
power for aome at tbe rilbt as "Remember Madridr bad for aatHaacist veterans
of the Spanish Civil War.
As. a result. 7011 get a risht-wing
indUStry set up in Arkansas (sometimes
bired by the mainstream media) to collect every last document, story and
rumc;r designed to make Clintoo look
like a moral leper. You aoet the second
iDstallment of the c::oaservative Amerj,;
can · ~tor majazine's "Conversations with Arkansas State Troopers"
aeries in which yet another trooper tells
an be ~mows-« claims to knowClinton's alleged sexual adven-
**'
auvemar of Arkansas. You aet
preaaure from the rilbt Cll big newspapers and networks not to "bold back" Cll.
IIIJtbiag bad about CiDtao, DO matter
bow penooal. The irnp!ic:atqJ is tbat a
dec:iaiaD to leave certain aspects of QiD.
taa'a life private CCIDfltitutes bias, whereas in fact we know more about Clintoo's
penaaallife tban ..e did about tbat of
any otber president at the time be was
in tbe Wbite House. Rec:aD tbat wbat we
DOW know about the persoaallives of
KenDedy and Roosevelt came out ODiy
after tbeir deaths.
The risht-wingers bave one point in
their favor: ooce you get into wars of
moral anaibilatioo, ~tion is inevitable. They are fighting on well-worn
terrain. But it's not dear tbat liberals
started tbis fight, either. The habits of'
moral amdbilation can be traced just as
easily to tbe McCarthy period. when a
slew of patriotic liberals and leftists
were tarred by the rilbt as "traitors,"
''dupes: or •cowards."
Wherever it· started, tbis bighly per·
sonal and lllllty style of politics cannot go
on without a moral and iDteiJectual justificatiao. The more thoughtful conservatives have come up with a brilliant rationale to undergird the moral assault em
Clintoo: tbe Clintons started it with tbeir
attack at the 1980s as ~ decade of
,reed• How could they say aD the tbinp
they said about the Reagan Era and thea
still try to make money doing real estate,
CUIIIDOdities and other sorts u capitalist
acts amoog cansentiDg adults?
Leave aside one problem with tbis line
of attack-its implication tbat anyone
who raises any questioas about the el•
tmes •
cesaes or problems of modem c:apitalism
is automaticaDy forbidden from ever try·
ing to make money under the system.
Tbis would certainly come as a surprise
to the late John Maynard Keynes, the
eoooomist wboae sbarp critidsms u capitalism beJped to save it, and wbo made a
pile in stock speculation.
Nooetbeless, there is a truth lurking in
this line uanti-Clinton argumentation: it's
absurd to write off an entire decade as a
miserable faDure. Decades are rarely like
tbat. It is true, as the right daims, that
during the '80s-a.k.a., the Reagan
Era-inflatiao was tamed, growth was
restored and cammunism was routed. To
say tbat tbe 1980s wae about greed and
only about greed is to suggest that
majority u American voters wbo support
ed Reapn were either deluded
greedy. Tbey were neither.
But the attack on the 1980s by
left is only an imitation of tbe attack
tbe 1960s by the right To bear
right teD it, the 1960s were a
aexuallic:eDse, family breakup, the
culture and an kinds of other emnpllfi
cations of tbat dread disease,
siveness.. Tbe real advances in h
freedom during that era-c:ivil · ts
and equal rilbts for womeo, for
pJe-are usually ipored.
1bere are two inconvenient facts
tbis battJe.af-tiiHecades. The first is
each side is acblally criticizing the o r
lor the same aiDs u aelfishness and
sonal imspcnibility--sexual, familial
pharmacological in the case of the ~
bashers, social and eamomic in the
of 1980s lllllbers.
The other problem is tbat most pect
le Want no part cl tbis fight, since most
ve reached sensibly mixed verdicts on
decades. Each produced benefits.
et many people got hurt in the permis. e 1960s, and many also sui
. the capitalist 1980s.
Let's can the whole thing off-the
moral amdbilation of opponents, the
fruitless war over which of our recent
decades was worse, tbe moral superiority tbat the partisans in these battles
claim for themselves. Of course an end.
to these argwnents and practices would,
at the moment, benefit Clinton mor
tban anyone else. He'd love nothin
better tban to talk about the 1990s an
bave his opponents Jive by a code
civility tbat might give him room
govern.
So Clinton should take the first
toward making peace. During the
paign, be tried by acknowledging bo
what went right in the Reagan years
what went wrong under the Democrats
A rehabilitation of that rhetoric
be timely risht about now. And Clinton
can demand moral respect for himself by
ac:c:on:ling it explicitly to his opponents.
Yes, some interests are fighting his
health plan for largely selfish rea&ODS,
but most of its aitics ought not ·be
tossed into that category.
Clinton is risht to think that his nastier enemies ought to be ashamed of
themselves. The best way to shame
them is to aclmowledge that all sides
have some responsibility for stoking this
political war of all against all-and that
all sides have a duty to end it.
Cliristopher Whalen
False Images of Mexico /
Henry Kissinger's recent commen-
tary on Mexico (op-ed, April, 5} accu-
reflects the inside-the-Beltway
view of that country. As a supporter of
Cuauhtemoc Cardenas Solorzano, the
~ opposition candidate in this August's elections, let me give another
pe1 spec:tive on the current political situ·
ation there.
In the wake of the assassination of
government-party candidate Luis Donal·
do Colosio last month, the United States
pledged $6 billion to support the peso.
Stabilizing the bloated Mexican curren·
cy at its current rate of 3.3 per doDar
may seem good policy at the U.S. Trea·
sury, but this support for the Salinas
govemment is ec:onomicaDy• sbortsigbt·
ed and politically dangerous.
Tbe best kept aec:ret on WaD Street is
tbat the Mexican ecooomic: program is a
failure. In fact, the Mexican economy
"grew" at a mere 0.4 percent in 1993,
tbe lowest rate in seven years. Mexican
maaufacturing actually shrank 5 percent
last· year, wben roughly two private
companies were c:loeed for each new
enterprise started. Newly privatiaed
CICIIJU11ei'Cia banks in Mexico are inWIdated with bad loans. In rural areas, 1
IDiJlion additional farmers reportedly are
being put off the Janel annually because
fA cheap grain imported from the United
States and Cailada.
The vast inflow of dollars into Mexico
over the past four years was aeated by
rately
artificially low interest rates in the United
States, and bas left Mexico with $150
biDion in foreign debt and a badly.overvaJ.
ued cumacy. With a $2 biiJion.per-montb
cum!llt ICCOUilt deficit, ally net dollar
outflows poae mortal dqer to Salinas
because tbe basic economic fundamentals
in Melico are UD80UIId. And the growing
'laking Exception
econcmic dislocation, in tum, is the engine behind rising political uorest.
In fact, the image of growth and
free-market reform under Salinas is an
illusion maintained by Washington to
protect the CIOil'UPt. PRJ-dominated status quo in Mexico City. Even before
CoJoaio's murder, the Treasury was
consideriog a standby facility of several
billion dollars to support the iDcreasingly
isolated Salinas government The wan
Street JoumaJ reports tbat the $6 billion
"bridge loan" elates an the way back to
the pre-NAFI'A clebate between Vice
President AJ Gore and Ross Perot. Yet
this is not the first time the Federal
Reserve has intervened in Mexico's poJitic:al affairs.
Six years ago, during Mexico's last
presideotia] election, the United States
secretly took steps to ensure a smooth
and thoroughly undemocratic transi·
tioa of power. Notes kept on the Au·
JUSt 1988 meeting by senior Fed offi·
c:ial$ reveal tbat the United States
negotiated some type of "deal" with the
outgoing government of Miguel de Ia
Madrid. Mexico borrowed $1 billion
and later repaid the loan, but an even
larger credit was apparently discussed
just months before the 1988 Mexican
election.
In documents published in the Con·
sressional Record by House Banking
Committee Chairman Henry B. -Gonza.
· 1ez, then-Cleveland Fed President W.
Lee Hoskins denounCed talk of a larger,
$3.5 billion Joan to Mexico in 1988 and
wamed that Fed participation in the loan
could be interpreted as subservience to
the White House.
Chairman Gonzalez, whose family fled
the 1910-1917 Mexican civil war, derides U.S. support for the PRJ. "'n the
middle of this political turmo=J (in the fall
of 1988] comes the Federal Reserve
with its· $700 million Joan-it even dis·
· cussed a much larger ,lint' of credit,"
Gonzalez observes. "Should the taxpay·
ers have a timely record of what the Fed
was doing? Should we be told why they
chose to support the ruling (PRI) party
at this time?"
In July 1988, as thousands marched in
the streets of Mexico City demanding
democracy and denolmcing ballot fraud,
outgoing President de Ia Madrid passed
power not to the winner of the election
but to his own chosen sua:essor. Were
it not for U.S. intervention in 198b,
Carlos Salinas would not have taken
office, and Cuauhtemoc Cardenas, who
again is a candidate this year. would
already be president of Mexico. It is no
small irony that the United States opposes the popular Cardenas, who supports tax cuts for small businesses. the
breakup of private monopolies in television and conununication.~. and a cam·
paign against corruptio•..
More than Americans, Mexicans deserve an explanation of why again in
1994 the United States is 'supponing a
regime that violates basic democratic
rights, encourages corruption and steals
elections with impunity, even as it enacts Melectoral refonn" legislation.
Without political stability in Mexico,
the economic opening and the benefits
of NAFI'A are in jeopardy. And without
democratic change away from the cor·
rupt political monopoly under the PRJ,
there can be no social peace. It's time
for all those supporters of NAFTA and
"free trade," including President Cimton.
to start speaking out in favor in democ·
racy and freedom in Mexico.
Christopher Whalen is a
Washington consultant and writer
who se1'11BS as an adviser to the
t:~~mpajgn of Ctu:~uhtemoc Cardenas.
�
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Don Baer
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Office of Communications
Don Baer
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1994-1997
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<a href="http://clinton.presidentiallibraries.us/items/show/36008" target="_blank">Collection Finding Aid</a>
<a href="https://catalog.archives.gov/id/7431981" target="_blank">National Archives Catalog Description</a>
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2006-0458-F
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Donald Baer was Assistant to the President and Director of Communications in the White House Communications Office. The records in this collection contain copies of speeches, speech drafts, talking points, letters, notes, memoranda, background material, correspondence, reports, excerpts from manuscripts and books, news articles, presidential schedules, telephone message forms, and telephone call lists.
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Clinton Presidential Records: White House Staff and Office Files
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537 folders in 34 boxes
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Brown vs. Board of Ed Materials/Research/Speeches
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Office of Communications
Don Baer
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2006-0458-F
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Box 28
<a href="http://www.clintonlibrary.gov/assets/Documents/Finding-Aids/2006/2006-0458-F.pdf" target="_blank">Collection Finding Aid</a>
<a href="https://catalog.archives.gov/id/7431981" target="_blank">National Archives Catalog Description</a>
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Clinton Presidential Records: White House Staff and Office Files
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42-t-7431981-20060458F-028-002-2014
7431981