One of the current political oddities Is the refusal of several Trump judicial nominees to endorse the Supreme Court decision in Brown v. Board of Education, which in May 1954 struck down “separate but equal” public schools.
The aim of this retrograde negativism is elusive; but any substantive tampering with the Brown precedent would be madness and a prima facie case for impeachment. One side-effect, however, has been to expose the ineptitude of some Brown defenders, who know little of of the history they defend and offer rhetoric for fact.
Just why the Supreme Court of more than half a century ago chose to pivot the Brown decision on a Kansas case rather than some southern citadel of Jim Crow I don’t recall. Perhaps to ease the shock. But this was only one of several anomalies and far from the most difficult. The major difficulty was that the post-Civil War Congress that framed the 14th Amendment and its revolutionary phrases (e. g., “equal protection of the law”) countenanced school segregation in the District of Columbia, under its exclusive authority. This paramount obstacle became the focus of two terms of argument.
The Warren Court (even with its contingent of white southerners, led by Hugo Black of Alabama) deemed it unthinkable in AD 1954 to ratify the precedent that implanted racism in American law. Plessy v. Ferguson, an 1896 Louisiana railroad case, was a model of shoddy reasoning — e. g., that discrimination is a figment of the imagination of those excluded from certain legal benefits. A more farsighted view was stated in dissent by Justice John Marshall Harlan of Kentucky: Segregation by law imposes “a badge of inferiority” on those discriminated against.
Even after two sessions of argument and diligent scholarly research — in which a number of distinguished historians joined — the Supreme Court found itself unable to conclude that school segregation offended the 14th Amendment but resolved even so to strike it down. A crucial vote was in doubt — that of former Attorney and Solicitor General Robert Jackson. When Chief Justice Earl Warren visited the ailing Justice to seek his concurrence, Jackson agreed to join the decision but only if Warren confessed the Court’s failure to find a 14th Amendment rationale and declared that it was propounding “new law for a new day.” Lest the decision appear arbitrary and ungrounded, Warren cited reputable social studies documenting the effect of discrimination on minority children. Die-hard segregationists pounced to charge that the Court was practicing “sociology,” not law — a cry heard from that day to this.
The critics had a narrow point, whose questionable force 65 years have further diminished. Brown v. Board of Education was essentially a declaration of national policy which Congress could have made but didn’t. After several generations of interpretation it still stands, sealed by a unanimous Court, a crucial stride in a world where racial bias and stereotyping are increasingly infamous.
Donald Trump’s judicial nominees are wasting breath and time and so is a GOP Senate majority listening patiently to constitutional foolery. You can bet that Trump, the master begetter of this frivolous mischief, has no idea of its danger and gravity.
Contributing columnist Edwin M. Yoder Jr. of Chapel Hill is a former editor and columnist in Washington.