The Unteachabilty of Brown v. Board of Education: Reflections on Chief Justice Roberts's New Year homily

Chief Justice Roberts has delivered his annual end-of-year message, this time bewailing (altogether correctly) the fact that most Americans know very little about how the American political system actually works.  He has therefore mounted the "civic education" bandwagon, though, like almost all judges, he is apparently incapable of suggesting that one aspect of such education might be a more critical perspective of the Constitution itself, which continues to exhibit its ominous impact on the American polity literally every day.  Instead, he commits the fallacy of believing that civic education requires knowledge of the way that  the judiciary works (and emphasis on the kinds of controversies that come before the judiciary) rather than knowledge of the ways the wider system does (or, more accurate, does not) work.  Judges are almost literally the last people one should turn to for genuine insights into the actualities of the American political system, given the fact that few have the kinds of rich governmental experience that was once viewed as highly desirable in those who reached our apex court.

 I could also declaim at some length about the extravagant praise he offers of The Federalist.  It nay be worth noting that almost no one actually reads more than, say, a half-dozen greatest hits among the 85 essays.  One might be interested in what Roberts thinks of, say, Federalists 40 or 41, which exist quite uneasily with the paean to the "rule of law" that he valorizes.  Roberts's evocation of Publius is hagiographic.  He cites Marshall as a source of praise for The Federalist while failing to note, for example, that Marshall ruthlessly casts to one side the suggestion in Federalist 32 that the inevitable conflicts that would arise because of the concurrent taxing authority of states and the national government would be handled politically instead of by the legalism adopted by Marshall in McCulloch.  

But what most struck my attention was Roberts's apparent belief that Brown v. Board of Education is a model opinion, its eleven pages of clear prose serving as a welcome contrast to the bloated opinions of the contemporary Court that are tedious exercises in tendentious case-crunching.  I certainly don't disagree that most contemporary opinions, save for some of Justice Kagan's individual opinions, are close to unreadable.  But I do find it remarkable that Roberts would proffer Brown as an exemplary opinion.  It is, to be sure, not unreadable.  Instead, it is close to unteachable, for the price of Warren's need to garner unanimity (and therefore get the hesitant vote particularly of Stanley Reed) and then his desire to write a non-accusatory opinion that would, he naively believed, generate good will among white Southerners, is that contemporary students get almost literally no idea why there were segregated schools in the first place and how they are linked to the history of slavery as a constituent part of American society for literally hundreds of years.  One explanation for the form of the opinion, though, is precisely that Warren was an extraordinarily sagacious politician, just the kind of nominee who would be castigated today as the Court has become far more mandarin (with Roberts himself being exemplary of the mandarinate, given his total lack of truly relevant experience prior to his becoming CJ).

Readers at the time--which was 65 long years ago--might have been expected to fill in some of these blanks, just as most readers of Youngstown Steel, say, might have been expected to be aware of World War II and then the ensuing Cold War with the Soviet Union that took a distinctly hot form in Korea.  But most Americans, including most law students, are remarkably ignorant about basic American history.  One reason is that many schools have more or less given up on teaching what is now regarded as "old fashioned" political or constitutional history.  When I was teaching the introductory course on constitutional law, I did feel some kind of duty to assign Brown, but it was basically an ordeal to teach.  Not only does one have to fill in some blanks that Warren, rightly or not, felt it politic to leave undiscussed; but one also has to note that the case is a hopeless mess doctrinally.  One can quote it for the proposition that only certain forms of intentional race-based segregation are illegitimate or for the proposition that all "separate schools are inherently unequal."  There is, to put it mildly, a huge difference between these two propositions, and the Court provides no clue as to which is "correct."   Indeed, a full half-century later, we would be treated to the unedifying shouting match between Roberts and Breyer in Parents Involved  where each claimed to be the true devotee of Brown while offering extraordinarily different readings of that case.

Randall Kennedy recently delivered a talk at the New York Historical Society on the occasion of Brown's turning 65.  He is preparing the talk for publication, and I expect it to generate wide and deserved discussion.  Among other things, though, is the possibility that at 65 Brown deserves to be retired, with a generous pension but otherwise basically ignored.  It was an important moment in the history of the U.S. Supreme Court (though the Court gets far too much credit--and, say, Harry Truman gets far too little credit--for its "courage" in (maybe) striking down school segregation in the South (depending, of course, on what one means by "segregation" and, concomitantly, "desegregation," something the Court was quite unwilling to tackle for at least fifteen years and then proved to be irresolute)).

In any event, whatever else one thinks of Chief Justice Roberts's message to the American people, one should be completely skeptical that choosing to emulate Brown would prove truly advantageous to the joint aims of providing true illumination as to the meaning of the U.S. Constitution or shoring up the ever-more-fragile claims to legitimacy of a Court that is rightly perceived to be fully integrated into the operation of the most partisan and polarized American polity since 1858.  Perhaps these aims are simply unattainable in the modern world.  I am confident, though, that it will take far more than Roberts's seasonal homily and its platitudes to restore the kind of "constitutional (and institutional) faith" that is so important to him.