AP Photo
Thurgood Marshall, who as head of the NAACP's legal arm argued part of Brown v. Board of Education, stands outside the Supreme Court, August 1958.
The Open Mind explores the world of ideas across politics, media, science, technology, and the arts. The American Prospect is republishing this excerpt.
Alexander Heffner: My guest today recently delivered a lecture at the Supreme Court about the contemporary revival of the Southern Manifesto in opposition to the holding in Brown v. Board of Education. Justin Driver is professor of law at Yale Law School. He teaches and writes in the area of constitutional law and is the author of The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind.
We are here amidst constitutional, tumultuous constitutional waters. And I wanted to start there, not with impeachment, but with these unfortunate and mysterious comments by Trump would-be appointees and now appointed judges.
Democratic senators have been asking potential jurists do you agree with the holding in Brown v. Board? And they’re silent. They’re not answering whether they agree with the fundamental equality derived from that decision. Is there something more there that we should be concerned with, than just their refusal to accept precedent, the fact that they are unwilling to affirm assertively the holding in Brown?
Justin Driver: I find the refusal to acknowledge the legitimacy of Brown quite confounding. And one of the reasons that I find it confounding is that it is an incredibly protean decision. It means many different things to many different people. And so to say that you think that Brown was correctly decided, it doesn’t really pin one down in a major way. I think of Brown v. Board of Education as sacrosanct. Many people have said that in order to have a legitimate theory of constitutional interpretation, Brown has to be able to account for it.
So I’m confused by the refusal of these recent nominees to refuse to honor Brown.
Heffner: What we’re supposed to understand is that they refuse to comment on this because they’re refusing to comment on Roe and that by not commenting on Roe, they have to be consistent in their refusal to honor precedent. But we had all these nominations in recent years from the Bush years and Obama years where the nominees really did say that they were going to abide by stare decisis, by precedent, and that seems to be going out the window now. And there’s no demand on the part of the Republican senators who were voting, rubber-stamping these judges in that they are going to abide by any idea of stare decisis.
Driver: Yeah, I think that’s right. And I, for one, do not find the analogy to Roe v. Wade especially powerful in the sense that lots of people have been able to draw lines saying Brown v. Board of Education is one thing, and I’m not going to comment on these other cases. It’s striking about Brown, how quickly it became widely celebrated. And I believe that Potter Stewart’s confirmation hearings were in, you know you know, a very shortly after Brown v. Board of Education. And he believed that that decision was correctly decided and said, so during his confirmation hearings. And so the refusal is you know, a really notable development and it’s, it’s new.
Heffner: Do you think that the so-called strict constructionists, the textualists who want to understand America in the 18th century; they are intent on eroding Brown right now? That’s it’s a deliberate, explicit mission?
Driver: Well, unfortunately, from my vantage point, Brown has already been eroded so it’s a little hard to know how it could be hollowed out further.
Heffner: Expand on that.
Driver: So I guess I would say, I was a law clerk at the Supreme Court of the United States in 2007 when the Supreme Court issued a decision called Parents Involved in Community Schools.
That case grew out of Louisville and Seattle, places that had voluntarily adopted racial integration programs. They said, look, if we assign students simply to the closest school we’re not going to have racial integration as a result of the persistence of racial segregation and housing. And so in order to have schools that reflect the rich racial diversity of our communities, we’re going to take account of race. And the Supreme Court of the United States invalidated these measures and said that in effect; they run afoul of Brown v. Board of Education. Chief Justice Roberts wrote an opinion where he says; the way to stop on the basis of race is to stop discriminating on the basis of race. And he says that these programs are just like Brown in the sense that in the era of Brown, school districts told students where they could go to school based on the color of their skin.
And these programs tell students where they can go to school based on the color of their skin. It mattered not one wit for constitutional purposes that in the bad old days students were sent to separate schools and that was sort of predicated on racial inferiority, perceived racial inferiority of people of color. And in the modern era, they were taking account of race to bring people together. So I find that Brown has been hollowed out. Indeed it’s a long sort of period of erosion that has happened to that decision, and there’s precious little of it left in my view.
