Expect to see these questions and lines of attack at Brett Kavanaugh's confirmation hearing, because senators often use them, regardless of the nominee.
Heading into the last presidential election, the Supreme Court had four solidly liberal justices (Kagan, Ginsburg, Sotomayor, and Breyer). With the vacancy caused by the death in early 2016 of the conservative Antonin Scalia, we were very close to returning to the first solidly liberal Supreme Court since 1969, the last year of the Warren Court. Chief Justice Earl Warren (1953-1969) staked a claim for judicial supremacy on the basis of the Brown decision in 1954 (technically Brown v. Board of Education of Topeka and four companion cases), which vacated state laws requiring or permitting racial segregation in public schools.
Brown is the most important decision ever rendered by the United States Supreme Court. Its significance lies much less in its impact on the civil rights movement, which was indirect at most, than in establishing the idea that the judicial branch holds a monopoly on constitutional interpretation. Though controversial in 1954, the Segregation Cases (as Brown was initially called) are today almost universally regarded as the epitome of judicial wisdom and courage. Because the Supreme Court did what is considered so obviously right when the rest of the political system would not, it came to be considered preeminent among the three branches of the federal government.
It is still living off the moral capital acquired in Brown. Three years after that decision, the Court, enforcing the desegregation of Little Rock High School in Arkansas, went so far as to assert that its interpretation of the Constitution was the Constitution, the “supreme law of the land.” In 1992, the majority wrote in Planned Parenthood v. Casey:
The American people’s belief in themselves . . . as a people who aspire to live according to the rule of law is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals.
In other words, the rule of law depends on the rule of judges. The American people and their elected officials have largely acquiesced in this usurpation. Public opinion polls show that the Court is near the top of institutions that Americans trust—way above Congress and the media, behind only the police, the military, and small business.
It is a testament to this moral monument that a university press would publish a book about one obscure justice’s concurring opinion in Brown—and an unpublished one, at that. Bringing to light a heretofore undiscovered Brown text is the equivalent of finding a Gnostic gospel or new a Dead Sea scroll.
In Justice Robert H. Jackson’s Unpublished Opinion in Brown v. Board: Conflict, Compromise, and Constitutional Interpretation, David O’Brien takes up a number of old historical disputes. One is the claim, based on an assertion by Justice William O. Douglas in his 1980 autobiography, that Justice Jackson was inclined to dissent in Brown. This is easily enough disposed of. Douglas was a latter-day Baron Munchausen when it came to fabricating his own life story; his statements about others, too, should be greeted with skepticism.
O’Brien also recapitulates an old story about Justice William Rehnquist, Jackson’s clerk in 1952-53 and later Chief Justice. Rehnquist prepared a memo for Jackson, “A Random Thought on the Segregation Cases.” This memo made the argument, whose truth almost all scholars today admit, that the Framers and ratifiers of the Fourteenth Amendment did not intend to prohibit segregation in the public schools.
For example: The same Congress (the 39th) that submitted the amendment to the states provided for segregated schools in the District of Columbia. The ratifying states maintained segregated school systems. Even the 43rd Congress, whose Civil Rights Act of 1875 was the furthest step in “radical” Reconstruction and the precursor of the Civil Rights Act of 1964, did not require desegregated schools. Even Justice John Marshall Harlan, the lone dissenter in Plessy v. Ferguson (1896), which upheld segregation in transportation, accepted not just segregating blacks from whites but the complete exclusion of blacks from the public schools.
Jackson considered, but rejected, Rehnquist’s memo, which resurfaced when President Nixon appointed Rehnquist to the Supreme Court in 1973 and again when President Reagan appointed him to the chief justiceship in 1986. Rehnquist claimed that the memo reflected Jackson’s views rather than his own. The evidence is pretty clear that Rehnquist was misleading or simply lying, and O’Brien clearly resents what he sees as an ungrateful clerk’s betrayal of a great judicial statesman.
But he also misses some deeper ironies here. One is that the “conservative” Rehnquist swallowed whole the Progressive-New Deal narrative of the pre-New Deal Court’s being beholden to plutocratic interests, using the Due Process Clauses as shields to insulate big business from social welfare legislation. The Warren Court justices had all imbibed this historical fable, which made them reluctant to use the same clauses to strike down segregation (and later anti-abortion laws). This reluctance is what made them turn to sociology for a basis on which to toss out school segregation in Brown.
Another irony is that while it is clear on originalist grounds that the Fourteenth Amendment was not intended to prohibit segregated public schools (or racial intermarriage), a good case could be made that it did mean to prohibit segregation in other realms of public life—such as public transportation, which the Court would come to uphold in Plessy.
Ultimately, the Warren Court was just as misleading as Rehnquist. It concluded that the evidence about the original intent of the Framers and ratifiers of the Fourteenth Amendment was “inconclusive.” This was disingenuous to say the least. The history was clear.
An eminent constitutional historian, Alfred H. Kelly, had been recruited by the NAACP to convince the Court that the 39th Congress intended to prohibit public school segregation. Kelly gave his best effort but, after having failed to convince the Court, confessed that he had traduced the canons of the historical profession—but for a good cause. He made this confession in an essay whose title alluded to the ancient Greek muse of history: “Clio and the Court: An Illicit Love Affair.” Many historians have engaged in such illicit relations, in legal briefs on abortion, affirmative action, and homosexuality cases, but few have shown Kelly’s honesty.
Jackson ultimately went along with Warren’s opinion in Brown, which went something like this: Public education in the 19th century was not what it had become by 1954, namely the key to success in life. Success in education, in turn, depends on high self-esteem, and segregation harms black children’s self-esteem. As Warren put it, segregation “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.”
Suffice it to say that each of these premises is open to doubt. But they were widely accepted in 1954, and got the job done. Even so, and even as the public has come to accept wholeheartedly the result in Brown, law professors continue to be embarrassed by its sloppy jurisprudence. Witness books about the case like What Brown v. Board of Education Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision (2002).
What does Jackson’s unpublished concurrence add to this? Not much. O’Brien points out that the post-New Deal justices were all “legal realists”—that is, they did not believe in any difference between law and politics, and held that judges made rather than discovered the law. Brown, of course, was the epitome of such judicial legislation.
Jackson, O’Brien claims, was forthright about the fundamentally political nature of constitutional interpretation, and was bothered that his brethren were not equally candid. But the unpublished concurrence does not really illustrate this. While Warren’s majority opinion stressed that circumstances, particularly the importance of education in American society, had changed since 1868, Jackson emphasized that the Negro race had changed. Indeed, the concurrence makes what is today a rather embarrassing defense of segregation as having been good for black Americans in an earlier era. In the 1860s, he wrote, “the Negro population as a whole was a different people than today.” Its condition then was “close to primitive.” But “Negro progress under segregation has been spectacular and, tested by the pace of history, his rise is one of the swiftest and most dramatic advances in the annals of man.”
In short, this unpublished opinion would have made the incoherent Brown decision even more incoherent.
Moreover, as Brown was a sloppy decision, this is a sloppy book. The Dred Scott decision was not rendered in 1957, nor was it a “strict construction of the Constitution,” nor did Taney refer to whites as the “dominate” race (the word was “dominant”). Justice Stanley Reed died in 1980, not 1981. William O. Douglas grew up in Washington (as well as Minnesota and California), not Oregon. O’Brien misspells the names of both parties in the 1948 case of Shelley v. Kraemer. While William Rehnquist probably was guilty of deception, should we accept the testimony of the convicted John Dean on the point? (And it is something of a cheap shot to attribute Rehnquist’s stubbornness in defending his deception to “his Swedish heritage.” Swedes, apparently, are not a “protected class.”) The author also accuses Rehnquist of supporting President Nixon’s “Southern strategy” of racial manipulation and polarization, but the best scholars now deny that there ever was such a strategy.
Similarly, O’Brien repeats the story that President Eisenhower, allegedly sympathetic to Southern segregationists, told Chief Justice Warren, “These are not bad people. All they are concerned about is that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.” This quote appeared in Warren’s memoirs, published after Eisenhower’s death. But O’Brien’s citation is not to that original source but to one of his own earlier textbooks.
Robert Jackson famously wrote of the Court’s power, “We are not final because we are infallible, but we are infallible only because we are final.” It is more than likely he never published his concurrence because the authority of the Brown decision would have been undermined if it had not been unanimous. Thus in his own small way he contributed to today’s imperial judiciary.
 See Herman Belz, Equality Transformed: A Quarter Century of Affirmative Action (Transaction, 1991), p. 39. See also Dean Kotlowski, Nixon and Civil Rights (Cambridge University Press, 2001), pp. 8, 24, 30, 37, 98, and 106, and Kotlowski, “Richard Nixon and Civil Rights,” Historian 60 (1998), 523-41.