Asymmetrical Information

Jane,
I am both happy and irritated to say that I've been linking you alot lately. Happy, because you've been covering ideas that I've already talked about, so our minds are thinking somewhat alike. Irritated, because you ALWAYS say it more clearly and succinctly than I do.
But keep it up. Your thoughts always help me in articulating my own thoughts more successfully.

ummm... don't you mean the 'Warren Court'?

Yes. . . that was weird. I'll fix it.

Brown v. Board of Ed also had a fairly settled constitutional precedent.

This is spinning of the first order, and convenient too, as you manage to easily dismiss the strongest practical demonstration of positive activism. That is, you redefine it as not being an "activist" decision. It is true that Brown was a culmination of a trend, but that trend increasingly conflicted with existing precedent (Plessy), was not accepted by popular opinion, and was certainly controversial in the existing legal community (not unique to the South, as the North also had and wished to protect its segregation policies). Brown was such a revolutionary decision that the Chief Justice struggled for (and achieved) unanimity to increase the decision's legitimacy, even though at least three justices were unsure that it was really constitutionally correct. This is just the kind of argument by rhetoric that you condemned in your post below as being peculiar to the humanities and inferior to argument by fact. So really, if you are ready to condemn "activism" wholesale, you really must first admit and deal with the fact that Brown was wrongly decided.

(Actually, I think only two justices needed persuading. Not three.)

Yes, but it was established under what I'd call the plain meaning of the constitutional clauses. The later commerce clause meanings essentially read unlimited power into the constitutions, against both the plain meaning and the known historical intent, and Roe didn't even both trying to find a precedent. Bakke actually violated the previously understood reading of "equal protection", from what I know of it. Supreme court precedents do get overturned by later courts, and sometimes should, but it takes decades, adn that's really my point -- the Warren Court went far beyond interpretation or overturning precedent, to striking down bits of the constitution they didn't like, and making up new bits they did, in order to accomplish feats of social engineering they considered desireable. But perhaps my understanding is flawed.

Both Bakke and Roe were Burger court cases. Earl Warren had retired by then.

Ahh. . . that's quibbling. ;-)

Amitava, in light of the 13th, 14th and 15th amendments to the constitution, might one assert that Plessy was wrongly decided?

Might one, in fact, argue that Plessy was an example of judges ignoring the constitution in order to get a result they thought socially desireable? ;-)

Hmmm. Not so fast there Jane and Timmy. I'll have to turn those last two questions around and ask you how you get the result in Brown (intuitively and morally right though we all agree it is) out of the "plain meaning" of any of the language in those three amendments.

The Court derived the result in Brown from the phrase in the 14th am reading, "nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws." Contra Jane, I would argue that this result is far from obvious if we simply go by the "plain meaning" of the text.

First of all, what is "protection?" I'd say the "plain meaning" of protection is that just as the State may not itself deprive you of life, liberty or property without due process of law, it must protect equally your rights to those things against encroachment from criminals. The most obvious wrong they were seeking to rectify with this language was the rampant violation of the personal and property rights of Southern freedmen and abolitionists without local law enforcement batting an eye.

But does it necessarily follow that if the state provides a service other than rights protection to some person or group it has to do so equally for everyone? One can certainly argue that this result ought to follow, but it would have been far from "plain" to the people who wrote the language in 1868. To the contrary, there was a well-known 1849 case from Massachussetts that upheld segregated schools in Boston even while holding that the state constitution made everyone "equal before the law."

There are (at least) two ways one might justify this holding. 1) There is no "right" to public education. By failing to provide it, the state does not violate or countenance a violation of any rights. So it's just not the sort of thing covered by the "equal protection" requirement. 2) To the extent that there is a right to education, equality does not prevent the state from providing this service in a manner adapted to the "respective relations and conditions" of the people receiving it. This latter is the reasoning of that Massachusetts case, and chances are that most of the people who ratified the 14th amendment agreed with it. (The strongest position the radical Republicans of the period seem to have taken on the topic was to argue blacks shouldn't have to pay taxes that go to schools they can't attend—note the long civil rights pedigree of vouchers!) Note also that under the Massachusetts court's reasoning, a state wouldn't even necessarily have to rise to a strict "separate but equal" standard. It could instead have "separate and adapted to the socially unequal relations and conditions of blacks and whites."

Looked at from this perspective, Plessy was actually a step forward, because it required formal equality of facilities. The holding of Plessy was that as long as public facilities provided for blacks and whites were equal, the mere fact that they were separate was not a constitutional violation. Those justices were ignoring something, but it wasn't the "plain meaning" of the constitutional text—it was the reality that the segregated facilities were in fact far from equal.

The cases leading from Plessy to Brown were essentially attempts to enforce the "equal" prong of "separate but equal" by challenging one by one the various inadequacies of the black schools. In Brown the Court finally threw in the towel and held that when it comes to public education, separate is inherently unequal, relying (rather controversially) on a bunch of work by social scientists purportedly proving the adverse psychological effects on black schoolchildren caused by the stigmatization of separation.
Note that given the reasoning of Brown, it's not necessarily obvious that its holding ought to apply to anything other than the education of children. Nevertheless, it's usually cited as establishing the proposition that "equal protection" means "any public services must be provided to all on an equal basis, which means a racially integrated basis."

One of the most influential law review articles ever written was "Toward Neutral Principles in Constitutional Interpretation," by Herbert Wechsler in the Harvard Law Review in 1959. Wechsler had great difficulty in coming up with a principled justification for finding "separate but equal" unconstitutional, as opposed to what he regarded as the result-oriented rationale set forth in the decision itself. Here is a brief discussion by Stanley Fish
http://www.pbs.org/shattering/sfish.html

While Brown may seem obvious and unexceptionable to all of us now, at the time it was regarded by many as the height of illegitimate judicial activism.

I meant to say "Toward Neutral Principles in Constitutional Law."

It seems to me that the more egregious violator was the Burger Court; they'd seen what the Warren Court had been able to do in Brown and Baker v. Carr (two cases where arguably SCOTUS had respected the plain meaning of the 14th) and decided that if it was good enough for them, it was good enough for whatever other miscellaneous crap they wanted to decide.

Burger, after all, is the court that expanded the relatively innocuous Griswold (a Warren Court decision, IIRC) into Roe.

Hmmmm. . . I'll have to think about that. Though it sounds like segregation in the South also violated Plessy, as the facilities weren't equal physically or in any other way. Also, it had become obvious that equal protection was being denied with a number of laws. But I'll chew on that a while and tell you what I think.

Well, to the extent that the facilities violated Plessy (which they surely did), the Court could simply have held that. That's no defense of Brown. Nor is there any question that equal protection--even in its most basic sense--was being systematically denied to Southern (not to mention many Northern) blacks. But let's remember to stay rigorous here, Megan. To look holistically at the situation and decide that the holding in Brown is justified because it's the only practical way the underlying evil of segregation could ever be righted is the very essence of "activism," is it not? (Not a very useful epithet, by the way, because we want judges to actively uphold the Constitution. The question is one of legitimate interpretation.)

We all know that the segregationists in fact did not regard blacks as equal, and would have to be forced kicking and screaming to part with every penny that would have gone into making the facilities dedicated to blacks equal in quality. But the legal job of forcing them inch by inch down this path could have been done under the doctrine of Plessy. To defend the principle that Brown stands for, you have to answer a harder question. You have to take seriously the following (counterfactual) hypothesis: What if the Southern states really did provide blacks with parallel public facilities that, though separate, were just as good as those provided to whites? What if they further maintained officially (whatever we suspect them to believe in their hearts) that the reason for the separation was not that blacks are in any way inferior, but just that in their judgment it was beneficial to both races that this separation be maintained? Would segregation under those circumstances still violate the constitution? Why exactly?

I suspect you're going to have a hard time coming up with a reason without saying something along the line that there is no conceivable reason other than a belief in black inferiority that could underlie the policy decision to keep the races separate. To which I suppose someone might respond by asking whether you think separate public restrooms for men and women also violate equal protection.

See why law school is so much fun?

Or I could just argue that if the South had really had equal facilities & protection, economic advancement and voting rights would have made Brown unnecessary.

For once, Jane, you have picked an argument out of your depth. Conservative legal scholars have anguished long and hard over this question, because the Left loves to argue that you have to drink their Kool-Aid to get to Brown.

I won't get too far into this debate myself, but one thing worth noting is that education is unusual among government benefits because it is mandatory. Now, you can avoid the gummint schools by going to a private/parochial school (thanks to a 1925 Supreme Court decision that is itself an interesting topic for discussion), but the fact that education is coerced does make it different than other benefits. As a practical matter, though, I'll agree that the relevant controversy is whether the "protection" in "equal protection" was as limited as CMN suggests. I would submit that the Court would have saved a lot of grief if it had been frank from the outset that it was adopting a practical rule of thumb of suspect classifications, which instead took years to establish.

As for the judicial nominations point on the Volokh site, I've been arguing for years that it was George Mitchell who started all this in the late 80s, and of course Daschle is his protege. But I recognize that the GOP is not blameless for retaliating during the Clinton years. The problem is that most journalists don't seem to remember anything that happened between Nixon's resignation and Clinton's inauguration; they've just blocked it all out.

If I can finish off with a third comment, the observation about the corrosive effects of activism on the nomination process and the life of the courts was made eloquently by Justice Scalia in his anguished dissent in Planned Parenthood v. Casey.

Oops, got the link to Casey wrong.

Just to be clear: I'm not suggesting that Brown turned on construction of the word "protection." It didn't. It turned on the meaning of "equal." Specifically, the Court formulated the question presented as follows:

"Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities?"

I raised the argument about "protection" simply to illustrate that the "plain meaning" of the 14th am. doesn't necessarily get you anywhere near Brown, even apart from the "separate but equal" issue.

I'm not sure I understand Crank's last comment about suspect classifications. Carolene Products with its canonical footnote 4 about "discrete and insular minorities" was decided in 1938. There was no question in Brown whether the distinction between black and white schoolchildren was a suspect one if applied invidiously; the question was whether it was being applied to the (constitutionally recognizable) detriment of the black children.

PS: I finally read the Volokh post that was the impetus for this whole thing. I don't know what Juan's cutoff point is for "modern," but he doesn't mention that there was a HUGE and NASTY confirmation battle over Wilson's nomination of Brandeis as well. Indeed, one might paraphrase Clarence Thomas and describe it as a "low-tech pogrom."

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