Scott Yenor responds to Tyler Syck's and Mark Tooley's criticism of national conservativism.
In Justice Deferred, Orville Vernon Burton and Armand Derfner manage to make a review of hundreds of Supreme Court cases stretching over 200 years both readable and, for the most part, engaging. In part, they manage this feat by including profiles of leading figures and describing important developments outside the courtroom. They combine the skills of a historian (Burton) and an experienced litigator (Derfner). Most importantly, they fit all these complicated legal decisions into a simple, clear storyline. This is a tale of good and evil, without gray area, dilemmas, or hard choices. They celebrate what the Court accomplished on race and civil rights from the 1930s through the 1970s, but despair at what happened before and after this golden age. “Before that time, the Supreme Court spent most of its history ignoring or suppressing these rights, and in the half-century since the 1970s the Court’s record on civil rights has retreated far more often than it has advanced.” The language of “retreat” and “advance” indicated that Burton and Derfner are confident they know which way is forward.
On the one hand, Justice Deferred is a useful antidote to critical race theory’s claim that the law is an unending instrument of oppression wielded by white men. On the other hand, by putting complicated legal and political issues into simplistic pro- and anti-civil rights boxes, Burton and Derfner fail to explain to the reader what was at stake in these debates. In their telling, all dilemmas and tragic choices melt away. The poet Charles Baudelaire famously said that “the greatest trick the Devil ever pulled was convincing the world he didn’t exist.” The greatest trick that mainstream civil rights scholars try to pull is to convince the world that there can be no legitimate disagreement about the nature and limits of government’s efforts to achieve racial justice.
Justice Deferred breaks down into three roughly equal parts. Chapters 1-4 cover the Court from the founding through the early 20th century. This is the most interesting part of the book, not only because it explains some long-forgotten cases, but also because it conveys to the reader a sense of just how horrible the South’s Jim Crow system really was. They provide a useful antidote to commonly heard, but nonetheless silly statements about the “new Jim Crow” and “Jim Crow 2.0.” The second section, chapters 5-9, focus on what can be called the “Roosevelt Court” (the post-1937 Court filled with FDR appointments) and the Warren Court. Here the authors are forced to cover so many complicated cases so quickly that they fail to do justice to many of them. They do, however, introduce the reader to a wide variety of important issues and cases. The final section, chapters 10-13, is the weakest. Here the authors descend into partisan hyperbole, describing decisions of the Rehnquist and Roberts courts as “a dramatic wave washing away major civil rights protections.”
The authors’ storyline works well in the first third of the book because slavery and Jim Crow were evils, and the Supreme Court did so little to limit, reform, or oppose them. The authors cover not only the infamous Dred Scott decision, but the Slaughter-House Cases, the 1883 Civil Rights Cases, and Plessy v. Ferguson. Their lengthy discussion of the largely forgotten but still important Cruikshank litigation includes a short but vivid description of the Colfax Massacre of 1873. Throughout these chapters, one is struck both by how weak the federal government was in the South after the withdrawal of troops—thanks in part to the Court’s timid interpretation of Reconstruction-era legislation—and by the entrenched nature of a two-tiered criminal justice system in the South—one that made little effort to acknowledge that African-American are entitled to “equal protection of the law.” Much of this story is covered in greater detail in Michael Klarman’s Bancroft Prize-winning book, From Jim Crow to Civil Rights. But Burton and Derfner’s rendition is shorter and more accessible to the general reader.
The middle chapters of Justice Deferred cover more familiar ground, ranging from the White Primary and due process cases of the 1930s to the desegregation and Title VII employment discrimination decisions of the Burger Court. Although these chapters contain some useful descriptions of the civil rights movement, they suffer from several limitations. One is the narrow focus on the Supreme Court and constitutional law. During the period of greatest transformation, the mid-1960s, the most significant institutions were Congress and the presidency, not the federal courts. The authors of course mention the 1964 Civil Rights Act and the 1965 Voting Rights Act (VRA), but limit themselves primarily to judicial interpretations of them. I can recall no discussion of interpretation and enforcement of Title VII by the Equal Employment Opportunity Commission or implementation of Title VI by The Department of Health, Education, and Welfare. Paying so little attention to legislation leads the authors to ignore the gulf that emerged between the texts of these statutes and the Court’s interpretation of them. This is a book about the Supreme Court and constitutional law. But we should acknowledge that is too narrow a lens for understanding civil rights law.
Avoiding the Hard Questions
The shortcoming of Burton and Derfner’s good guys/bad guys prism is particularly apparent in their scattered references to school desegregation. They spend only a page on Brown v. Board of Education, the Court’s most important civil rights case in its history. In contrast, they devote five pages to describing the despicable behavior of Governor Orville Faubus and the angry mob that tried to prevent the desegregation of Central High School in Little Rock. Most importantly, they ignore the fact that in 1954 the Court failed to explain what “desegregation” means, and that this grievous mistake produced a decade of obstruction by southern school districts. Later, Burton and Derfner note that the Court’s 1968 opinion in Green v. School Board of New Kent County represented a “new direction in school integration.” Quite right. But what was that direction and how did it diverge from the original decision in Brown? In Brown II the Court had ordered judges and school officials to “achieve a system of determining admission to the public schools on a nonracial basis.” After Green, though, it required race-based assignments in order to create racial balance. That proved to be one of the most consequential and controversial changes in the history of civil rights law. But it receives no mention here.
There is no more important question in civil rights law and policy than when it is constitutional and morally acceptable for government and those funded by governments to classify individuals by race. As Justice O’Connor put it, “distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” That was the central, powerful argument of those who opposed de jure segregation in the South. Although he supported some forms of affirmative action, Justice John Paul Stevens cautioned that “Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.” This formulation suggests that in some circumstances, limited use of race might be appropriate. That was the case with southern school desegregation: without some use of racial body-counts, it would have been impossible to achieve what Gary Orfield has called the “reconstruction of southern education.” But when and how?
For years the Supreme Court has struggled to find an adequate response to this question, and has largely failed. For Burton and Derfner, though, the answer is obvious: “benign” racial classifications are good; color-blindness is bad; and we can leave it to people like them to determine what qualifies as “benign.” Their later comment that Harvard’s use of racial preferences in admissions “did not show a bias or quota system restricting admission of Asian American students” demonstrates how willing they are to overlook the dark side of affirmative action.
Another critical issue that Burton and Derfner quickly skate over is federalism. One of the most important consequences of the civil rights revolution of the 1960s was a dramatic shift in the power between the federal government and the states. For decades segregationists had hidden behind a confused doctrine they called “state sovereignty”—an odd term in a country where the Constitution and laws of the U.S. are the “supreme law of the land.” To ensure that the second reconstruction did not go the way of the first, the national government substantially increased its power to force state and local governments to follow its commands. The most extraordinary exertion of federal power was the preclearance provision of the 1965 Voting Rights Act. No change in election law in “covered” districts could go into effect until first approved by the U.S. Department of Justice or a federal judge in the District of Columbia. Never before or since had a state legislature been required to seek permission from federal officials to allow a law to take effect. As Chief Justice Warren noted, a long train of abuse justified this “extraordinary” assertion of federal power. In subsequent years, though, the Court routinely approved (and sometimes initiated) unprecedented assertions of federal authority where no racial issues were involved and where Congress could point to no similar history of abuse. In short, the extraordinary became ordinary.
Another example of how the Court’s treatment of racial issues led to a profound shift in federalism was its reinterpretation of §1983, a surviving fragment of Reconstruction legislation. Burton and Derfner correctly note that “the new interpretation was a major change in the relationship between the states and the federal government.” They indicate their approval of this reading of the statute without explaining why. Given the importance of debates over the distribution of power within our federal system, one would think that this would command some attention in a long book on civil rights law. But no: the authors seem to believe that the more power flows to the federal government, the better. Although the Trump administration instituted and many state governments vigorously resisted policies the authors would consider hostile to civil rights, they never question the value of centralization of government power.
Burton and Derfner’s treatment of another key issue of the 1960s—the question of “state action”—is similarly disappointing. Before the passage of the Civil Rights Act and the Voting Rights Act, the Court regularly faced the question of how to draw the line between private action—which is not covered by the Fourteenth and Fifteenth Amendments—and “state action—which is. At bottom, this is the question of whether there is an area of personal autonomy that is exempt from government control unless authorized by a clear and valid statute. The authors routinely cheer Court decisions that applied the Fourteenth and Fifteenth Amendments to private organizations (such as the Jaybird Association in a famous voting case). At one point they refer to the segregation imposed by southern lunch-counter owners as “so-called private behavior.”
Ironically, one of the most interesting sections of their book is the long description of efforts by the Warren Court to protect the NAACP from a barrage of attacks by southern legislatures. The First Amendment rights of free speech and association, the Court held, prohibited states from demanding the NAACP’s membership lists. The authors help us understand why this was so important. But if the NAACP deserves protection from efforts to thwart their activities, why not the equally private Jaybird Association? Again Burton and Derfner sidestep the most interesting and most important questions.
The final four chapters on the post-1980 Court are the least useful part of the book. Although they provide a fairly good chronology of the Court’s meanderings on affirmative action and disparate impact analysis, they write more as advocates (as Derfner was in some of these cases) than as scholars. This leads them to exaggerate the dire consequences of decisions with which they disagree. For example, commenting on three decisions the Court issued on termination of desegregation orders between 1991 and 1995, they write “the Court largely shut these cases down,” telling lower courts “it was time to end these cases.” They are wrong on two counts. First, the principal thrust of these decisions was to give lower courts more discretion on when to terminate injunctions, not to tell them to end supervision. Second, during the 1990s fewer desegregation orders were terminated than in proceeding decades. Substantial change did not begin until the early 21st century, after many of those decrees had been in place for 20 or 30 years.
Another example. After reviewing the Court’s 2007 decision in Parents Involved in Community Schools, they write: “The Supreme Court under Chief Justice Rehnquist had effectively put the courts out of the business of racial integration; this case put school districts out of that business also.” They should take a look at The Century Fund’s detailed analysis of nearly 200 school districts around the country that are experimenting with new methods for bringing white, Black, Hispanic, and Asian students together in the same schools. Or at the Obama administration’s guidelines on how to promote integration within the bounds of Parents Involved.
The authors exaggerate once again when they claim that in the Shelby County case the Court “struck down the Voting Rights Act and “resurrected South Carolina’s ‘states rights’ vision.” In fact, the Court struck down only the trigger for preclearance. All the other sections of the Act remain in place. Congress remains free to update that trigger—which it has yet to do. Moreover, the logic of Chief Justice Roberts’s opinion in Shelby County is not much different from that of Chief Justice Warren’s opinion upholding the VRA half a century before. The authors acknowledge that Republicans have often used courts’ demand for “majority-minority districts” under the VRA to increase the number of Republican districts by packing Black voters together into overwhelmingly Democratic ones. This partisan manipulation of the VRA should give them pause. But apparently, it doesn’t.
In the end, Justice Deferred is most useful for laying out the conventional wisdom among mainstream civil rights advocates. It provides an accurate picture of the horrors of Jim Crow, and the failure of the Supreme Court to address those constitutional violations for decades. It recognizes the extent to which things have gotten much better since the 1950s. To the extent it convinces the reader that we are not forever locked in an iron cage of “white supremacy,” it performs an important public service. It offers a brief if one-sided guide to Supreme Court decisions and constitutional issues that all educated citizens should understand. What Justice Deferred fails to do is engage with opinions with which the authors disagree, or explore the implications of these decisions for how we govern ourselves. Like so many people writing about race and civil rights today, they are too quick to assume that they know exactly what justice requires.