Roberts and the problematic legacy of Brown

Sherry Colb’s discussion of the Integration Cases and Robert’s use of Brown provides opportunity for me to throw out one of the things that I’ve been exploring recently: which is how the common law doctrine of precedent distorts our understanding of constitutional history, and the lessons we might draw from that history (an idea first articulated by Frederic Maitland in his inaugural lecture as professor of English legal history at Cambridge in 1880) (no, I wasn’t there).

The common law doctrine of precedent effectively requires us to conflate constitutional development with formal judicial decisionmaking. And, I believe, this prevents us from learning as much as we can from our constitutional history, and its true constitutional meaning. To my mind, one of the paradigmatic examples of how the common law’s use of precedent can prevent effective constitutional understanding is Brown. Brown is, it doesn’t need to be said, a iconic case. It is the case, we are told, that transformed the constitution by wiping out the separate-but-equal doctrine, and replacing it with a new, post-apartheid constitutional order in the form of the anti-discrimination principle.

The problem is, this isn’t true. The separate-but-equal doctrine was already largely discredited, juridically and socially (at least in the North), by the time Brown was issued. Brown expressly did not overturn Plessy, and it certainly did not articulate a successor constitutional test. Perhaps most problematic, Brown and its succeeding line of cases had no actual impact on American segregation. In fact, American society actually became increasingly more segregated after Brown was decided

The growing segregation of American society would not reverse until Congress passed the Civil Rights Act of 1964. In this sense, it was the Civil Rights Act of 1964 that really overturned Plessy. And, I would argue we should therefore be looking first-and-foremost to that Act, not than Brown, in our continuing efforts to conceptualize, construct, or even just celebrate our still very-much-up-in-the-air, post-Plessy constitutional order. Certainly, at the very least, the 1964 Act provides a much more robust description of what that order might look like than anything found in Brown.

But we can’t do that, because the doctrine of precedents causes the common-law mind to look more or less exclusively at judicial decisions for defining constitutional doctrine, and thus for defining changes in the constitutional order (a point I also made earlier in critiquing Ackerman’s particular notion of constitutional moments). The real reason we worship Brown, I suspect, is because Brown is the last, full judicial opinion on the constitutional meaning of race to issue prior to the flowering of the civil rights movement. This causes us to attribute the civil rights movement, and it transformative vision of race, to Brown, when in fact, Brown was – I would at least be willing to propose – really epi-phenomenal to this movement. In short, the reason why Robert’s vision of both Brown and the lessons of constitutional history are so simplistic is that this is precisely the view of constitutional and legal development that the common law foists upon us.