Balkinization: BLAB + Siegel (and the Rosenberg thesis)

BLAB + Siegel (and the Rosenberg thesis)

Anonymous

I am preparing to teach my fall Fourteenth Amendment class by going through the new edition of Processes of Constitutional Decisionmaking, the constitutional law casebook by Brest, Levinson, Balkin, Amar and, in the latest edition, Reva Siegel. This is hands down my favorite casebook (although I use Sullivan-Gunther for Conlaw I). It is a constitutional epicure’s delight, the conlaw equivalent of a five course meal at a Michelin three star restaurant.

In saying this, I am obviously not setting any records for moral courage, given that several BLAB authors contribute to this blog. Indeed, perhaps this blog can be viewed as a sort of extension of the casebook.

There are many discussions one could have based on the casebook, but I was somewhat jarred by the note that follows Brown v. Board of Education on Gerry Rosenberg’s 1991 book The Hollow Hope. The Rosenberg thesis was that courts cannot by themselves cause major social change and thus Brown was not a significant causal agent in the civil rights movement. These were fighting words, both when Rosenberg published them in 1991 and now.

As I recall, Rosenberg’s argument had two parts. As recounted in the casebook, the first part argued that “real change did not come until the political branches joined the desegregation effort and Congress enacted the Civil Rights Act of 1964.” This part of Rosenberg’s argument was based on the fact, well-known long before the book was published, that a very low number of black children were in integrated classrooms even ten years after Brown. Second, and more controversially, Rosenberg tried to assess Brown’s indirect impact on the civil rights movement and, as the casebook notes, was quite skeptical.

I was predisposed toward accepting Rosenberg’s argument when it was published due to some research I had done on the history of the civil rights movement. This research made me question the impact of Brown. In particular, I had read David Garrow’s 1986 biography of Martin Luther King, Jr. At one point, Garrow quotes Al Raby, one of King’s allies in his 1966 effort to desegregate various institutions in Chicago:

“I don’t see that the judicial process has really helped the Negro. . . .The same process, the process of legal opinion, got us twelve years ago a decision of the United States Supreme Court that we would have integrated schools, that segregation would be done away with. And the result of that legal opinion twelve years later is largely insignificant.” (Bearing the Cross, p. 522)

It’s clear from Garrow’s work and the work of others that Brown was culturally significant to the civil rights movement. For example, its anniversary was celebrated in some way in most years following the decision. But it is also clear that Brown’s practical value was contested, even in the 1960s. I was all the more puzzled, therefore, when Garrow turned out to be one of Rosenberg’s critics.

The casebook fairly reports that Rosenberg had numerous critics. One of the main lines of criticism was the defense of Brown as “culturally significant” and “symbolic.” These criticisms have always struck me as beside the point. If it were widely agreed that the main significance of Brown was symbolic, it would hardly have been necessary for Rosenberg to write his book in the first place. Rosenberg’s book was controversial because it attacked the ideology of cause lawyering, an ideology that gives courts a practical (not just symbolic) role in major social change. This ideology was still powerful in the 1990s, as Rosenberg discovered when he went to various law schools to defend his thesis. However, no one could contest the first part of Rosenberg’s argument, Brown’s very limited direct impact. In fact, the casebook goes on to amply support this point in the next few pages following the Rosenberg note. The main battle ground was over the more difficult question of indirect impact, of influence. But if we say we are interested in the general causal factors behind the civil rights movement as a whole, there is ample evidence that Christian moral beliefs played a far greater role than the legal principles exemplified in Brown.

Posted 10:44 PM by Anonymous [link]

Comments:

Many thanks to Steve for his kind comments about the casebook. I am, of course, interested in what he has to say about our treatmentn of the Rosenberg thesis. I would put on the table the following additional point re the presentation of Brown: I think it's fair to say--I'll let my other co-editors speak for themselves if they disagree--that one of our purposes was to "put
Brown in its place." One way of doing this is by bringing the Rosenberg thesis to students' attention. Another, perhaps even more important, way of doing this is to bring to their attention the remarkable political courage displayed by Harry Truman in desegregating the armed forces in 1948--over the opposition of most of the senior military brass--and then, of course, winning an election in which one of his opponents was Strom Thurmond in behalf of the Dixiecrats who walked out of the Democratic convention in protest. It is hard to argue that Brown is not an important decision, but the standard law-school narrative for many years is that the Supreme Court was almost like Kronos-like in giving birth to Brown without any exogenous prompting. Frankly, by 1954, it took relatively little courage for the Court to follow the clearly expressed desires of both the Truman and Eisenhower Administrations to rid the US of what, as Mary Dudziak has shown, was the Cold War-losing legal oppression of Africa-Americans. Truman displayed far more raw courage, though most students never learn that, given the fixation by the legal academy on courts and courts alone.

And, incidentally, LBJ probably trumped even Truman's courage in his embrace of the Voting Rights Act of 1965 even though he knew full well that it probably meant the death of the existing Democratic Party in the South and the potential rise of the Republican Party. One wonders if LBJ had any inkling of what the eventual "cost" of the VRA would be, but it is clear that he was willing to pay some considerable cost to do what he thought necessary to redeem the Declaration of Independence and the Gettysburg Address. (To anticipate a probably reply, I know full well that LBJ could have been even more courageous had he supported the Mississippi Freedom Democratic Party at the 1964 Democratic Convention; Todd Gitlin argued some years ago that his failure to do so was an important explanation for the rise of a more radical politics, which may be right. Still, one should admire Johnson for rising to the occasion in 1965.)

# posted by

Sandy Levinson : 11:08 PM

One thing I have been thinking about lately is why, after Rosenberg and the host of others who have doubted the uses of judicial politics by themselves (wasn't this one of the principal lessons of the 1990s in academic legal scholarship?), so much passion has been put into the judicial politics of the GWOT. When one thinks back to the Vietnam war, there was in fact very little judicial politics, ie resistance to the war using legal tools like international law. Recall some of Richard Falk's work, and Telford Taylor's "Nuremberg and Vietnam." But also recall the Russell Tribunal. What made a difference then was popular (especially youthful) protest. It is not as if liberal law professors can themselves call up popular resistance to the war. Yet I have wondered why, if they have been talking so much about the irrelevance of strictly judicial politics for so long, they have put so much energy into them since 9/11. If (as was said on this or another blog) Hamdan is like Brown, what do Rosenberg's findings suggest about putting Hamdan in its place?

# posted by

Samuel : 6:48 AM

I think that there's a risk in going so far as to underrate Brown. I can understand the frustration of the Civil Rights Movement leaders at the delays, but that doesn't mean that Brown (or the Court) was ineffectual.

Let me give an anecdote from my own background. In Riverside, CA in the summer of 1963, arsonists burned down one of the schools. Until that time, the schools had been de facto segregated (Riverside was hardly a bastion of racial harmony). However, instead of rebuilding the school, the school district voted to integrate the entire district by busing. It's my understanding that this was the first such action in the entire country (that's what they say; I've never checked, so feel free to correct me).

We can never know for certain, of course, but I have little doubt that it wasn't the demonstrations in the South which led to this result. Riverside was NOT a liberal place. Nor was it Christian moral beliefs. I think it was Brown; that's what people always said, anyway.

I certainly agree that the importance of Brown can be and often has been overstated. But I wouldn't want to move so far in the other direction that we leave students believing it was irrelevant.

# posted by

Mark Field : 8:13 PM