When Clarence Thomas appears this week at the confirmation hearings on his nomination to the U.S. Supreme Court, members of the Senate Judiciary Committee are certain to scrutinize his views on what most legal scholars agree was the most significant High Court decision of this century.
To some of his opponents, Judge Thomas’s past comments on the 1954 High Court ruling in Brown v. Board of Education, which outlawed racial segregation in public schools, offer one more reason why he is unfit to replace retiring Associate Justice Thurgood Marshall.
Citing Judge Thomas’s belief that the Court reached the right conclusion in Brown but used the wrong legal rationale, among other issues, the umbrella group Alliance for Justice said the judge’s elevation to the High Court would be “nothing less than a repudiation of Thurgood Marshall,” the civil-rights lawyer who won the historic case and went on to become the first black Justice.
People for the American Way Action Fund, a liberal advocacy group also opposing the nomination, charged that Mr. Thomas has “attacked” and “disparaged” the Brown ruling. It said his application of “natural law” philosophy in his discussion of cases such as Brown “could result in dangerous and dramatic reversals of Supreme Court precedents.”
But the nominee’s views about the Brown ruling do not place him outside the legal mainstream, according to both his supporters and other legal scholars. By questioning the legal foundation on which the Brown decision rests, Judge Thomas joins a distinguished array of constitutional scholars who have criticized the ruling written by Chief Justice Earl Warren almost from the moment it was announced. A chorus of other legal thinkers, meanwhile, has risen to its defense.
“Virtually every constitutional scholar worth his salt has found it necessary to re-examine the opinion in Brown v. Board of Education,” said David L. Faigman, an associate professor of law at the University of California’s Hastings College of Law in San Francisco. “It is the quintessential case of constitutional theory in the 20th century.”
Moreover, some supporters of Judge Thomas have suggested that his views on Brown align him with none other than Justice Marshall himself, who as the chief lawyer for the black litigants challenging de jure segregation of schooling made arguments that are remarkably similar to some of his prospective successor’s comments about the case.
The debate is not merely an academic one. The Supreme Court’s fundamental declaration in Brown that separate educational facilities are “inherently unequal” because they create a “feeling of inferiority” among black pupils remains subject to dispute often within the black community itself.
A significant number of black educators and parents, arguing that more than three decades of desegregation efforts have failed to adequately improve the schooling of African-Americans, have embraced educational remedies not dependent on integration, such as the creation of public and private schools that emphasize pupils’ African heritage or provide other special help for inner-city black children.
Social-Science Data Cited
A unanimous Supreme Court declared in Brown that segregated schools deprived black schoolchildren of the equal protection of the laws guaranteed by the 14th Amendment to the U.S. Constitution. The amendment was adopted following the Civil War to extend to black Americans all the privileges and immunities of citizenship, as well as full legal protections.
After an exhaustive examination of historical evidence submitted by all sides in the case, the High Court said it was “inconclusive” whether the framers of the 14th Amendment had intended to bar racially segregated schools.
The ruling instead focused on the contemporary importance of education to success in life, and said that to separate elementary and secondary pupils “from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
The Court cited a lower court’s finding that segregation had a “detrimental effect” on black schoolchildren. Then, in what would become one of the more controversial facets of the decision, the Justices said that such a conclusion “was amply supported by modern authority.”
In a footnote, the opinion cited seven sociological works that were believed to document the deleterious effects of racial segregation. “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place,” the Supreme Court said. “Separate educational facilities are inherently unequal.’'
1896 Dissent
In a number of speeches and writings, Judge Thomas, who was named to the U.S. Court of Appeals for the District of Columbia Circuit last year, has outlined his view that the ruling lacked a fundamental rooting in constitutional law and relied too heavily on the supposed evidence of psychological damage to black children stemming from state-imposed racial segregation.
The ruling would have been more persuasive, and could have served as a stronger precedent for later civil-rights cases, Judge Thomas has argued, if it had relied instead on the dissent of Justice John Marshall Harlan in Plessy v. Ferguson, the 1896 decision supporting segregation that was effectively nullified in Brown.
“The great flaw of Brown,” Judge Thomas wrote in a 1987 article in the Howard Law Journal, “is that it did not rely on Justice Harlan’s dissent in Plessy, which understood well that the fundamental issue of guidance by the founders’ constitutional principles lay at the heart of the segregation issue.”
“On the contrary,” he continued, “Chief Justice Warren, writing Brown, made sensitivity the paramount issue.”
The Plessy decision upheld a Louisiana law requiring racial segregation in railroad cars. The case is considered to have established the “separate but equal” doctrine that would be used to defend segregated facilities for blacks and whites.
In its most famous line, the majority opinion in Plessy called a “fallacy” the “assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put this construction upon it.”
In his lone dissent, Justice Harlan said the majority’s ruling would prove to be as “pernicious” as the Supreme Court’s staunchly pro-slavery Dred Scott decision in 1857. In the view of the U.S. Constitution, the Justice wrote, “There is in this country no superior, dominant ruling class of citizens .... Our Constitution is colorblind and neither knows nor tolerates classes among citizens.”
“Brown v. Board of Education would have had the strength of the American political system behind it had it relied on Harlan’s arguments, instead of dubious social science,” Judge Thomas said in a 1988 speech to the Federalist Society at the University of Virginia School of Law.
And in his Howard Law Journal article, the judge wrote that the Brown rulings “focus on environment overlooks the real problem with segregation, its origin in slavery, which was at fundamental odds with the rounding principles” of the nation.
“Had Brown done so, it would have been forced to talk about slavery, which it never mentions,” he continued.
Judge Thomas’s opponents are concerned about more than just his views on Brown. The judge has made critical comments about subsequent Supreme Court decisions that hastened the pace of desegregation and approved of busing as a remedy for racial imbalances.
But Elliot M. Mincberg, legal director for People for the American Way, said that the nominee’s thoughts on the 1954 case alone were “potentially troubling.”
“He appears to reject the whole notion that separate is inherently unequal,” Mr. Mincberg said. The judge’s view may be skewed, he added, by his “exceptional experience” in having attended a strong all-black Catholic school.
But supporters of Judge Thomas are quick to point out similarities between the nominee’s references to Brown and arguments in the Supreme Court brief prepared for that case by the lawyers for the NAACP Legal Defense and Educational Fund, of which Thurgood Marshall was then counsel-director.
“It is the dissenting opinion of Justice Harlan, rather than the majority opinion in Plessy v. Ferguson, that is in keeping with the scope and meaning of the 14th Amendment,” said the NAACP brief submitted in 1953. “That the Constitution is colorblind is our dedicated belief.”
The brief also has passages that strike some legal analysts as similar to the “natural law” philosophy espoused by Judge Thomas.
“The roots of our American equalitarian ideal extend deep into the history of the Western world,” said a supplemental analysis included in the NAACP brief in Brown. “Philosophers of the 17th and 18th centuries produced an intellectual climate in which the equality of man was a central concept. Their beliefs rested upon the basic proposition that all men were endowed with certain natural rights.”
“Thomas’s position is very consistent with the position argued by the NAACP in Brown,” said Clint Bolick, litigation director of the Institute for Justice, a conservative public-interest organization.
“The notion that criticizing Brown is sacrosanct is really ludicrous,” he added, “especially when Thomas is criticizing it for not going far enough in explicitly overturning Plessy.”
Need for Unanimity
The Brown decision’s reference to sociological studies in its footnote 11 has generated debate for years over the proper use of social-science evidence in the law.
The footnote cited, among other research, studies by the psychologist Kenneth B. Clark, who had used black and white dolls to evaluate the self-esteem of black children, and a landmark study of the state of blacks in the United States by the Swedish social scientist Gunnar Myrdal.
In an interview with Richard Kluger, author of the exhaustive 1975 history of the Brown litigation, Simple Justice, Chief Justice Warren said he included the reference to the social-science works “because I thought the point it made was the antithesis of what was said in Plessy. They had said there that if there was any harm intended [by segregation], it was solely in the mind of the Negro.”
Alluding to the controversy over Mr. Clark’s research methods and results, Judge Thomas argued in the Howard Law Journal that the famous doll studies “could have just as easily been used in support of segregation, as against it.”
The High Court nominee is not alone in questioning the reasoning behind the Brown decision.
“Brown was correctly decided, but the opinion was shaky and unfortunate in its emphasis,” said Charles A. Lofgren, professor of American politics and history at Claremont McKenna College. He is the author of a book on the Plessy case that has been cited by Judge Thomas.
“I fully agree that Justice Harlan, in his Plessy dissent, laid out a better ground for overturning segregated schools than what Chief Justice Warren used,” Mr. Lofgren said.
According to Mr. Kluger’s account, the difficulty for Chief Justice Warren in fashioning a strong opinion was that he was intent on trying to produce a unanimous ruling, which he believed would give Brown the moral weight it needed to be accepted by the nation.
“It is easy enough to imagine how an arguably more persuasive opinion could have been written,” said Peter Shane, a professor of law at the University of Iowa. “But if you look at the time it was written, Justice Warren was struggling to find a rationale for the case that every member of the Court would sign on to.”
Alexander Bickel, a former Supreme Court law clerk who would go on to become an influential constitutional scholar, argued in 1955 that if the Court had felt bound by the legislative history of the 14th Amendment, it could not have applied the amendment to the school-segregation case.
But the Court “was able to avoid the dilemma,” Mr. Bickel wrote, “because the record of history, properly understood, left the way open to, in fact invited, a decision based on the moral and material state of the nation in 1954, not 1866.”
Herbert Wechsler, a Columbia University legal scholar, created a stir in legal circles in 1959 when he wrote that he could not perceive the “neutral principle” of the Constitution on which the Court had ruled.
The debate has continued in legal writing to this day.
“Brown was a great and correct decision, but it must be said in all candor that the decision was supported by a very weak opinion,” Robert H. Bork, whose nomination to the High Court was defeated in 1987, wrote last year in his book The Tempting of America.
Laurence H. Tribe, a law professor at Harvard University, is a defender of Chief Justice Warren’s opinion.
“The most obvious rationale for the holding in Brown I is also the most persuasive,” he wrote in the 1988 edition of his textbook American Constitutional Law.
“Racial separation by force of law,” he said, “conveys strong social stigma and perpetuates both the stereotypes of racial inferiority and the circumstances on which such stereotypes feed.”
