Footnote 4 of Carolene Products and the "counter-majoritarian difficulty."
The form of the opinion in Brown v. Board of Education is curious. The opinion’s lack of parsimony and its reliance on social science evidence regarding the impact of segregated schools are bewildering. Ironically, if the Court simply mirrored the form of constitutional argument it used in the lesser known companion case of Bolling v. Sharpe, which was decided the same day as Brown, not only would Brown have a better legal argument, it would have presented a pedagogically better argument as well.
The Brown opinion’s lack of parsimony is most puzzling. It misses the legal point by, apparently, attempting to make a policy argument. The problem starts with the curious way in which the Court framed the question in the case: “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?”
Comparing the question’s phrasing in Brown to the more traditional phrasing of the question in Bolling highlights the oddity of the Court’s choice in Brown. Setting aside the important but unrelated issue that the Court applied the Fifth Amendment in Bolling rather than the Fourteenth Amendment (because Bolling dealt with segregation in DC schools, so the Fourteenth Amendment did not apply) the Court framed the issue applying a traditional means-ends test familiar to even casual students of American constitutional law. The Court asked simply whether “segregation in public education is … reasonably related to any proper governmental objective.” Racial animus being an illegitimate governmental objective, the Court struck down racial segregation in DC schools.
Simple and clear.
Adapting the due process language from Bolling to the equal protection question asked in Brown, the Court could easily have asked whether the classification of the students was reasonably related to any proper governmental objective. Racial animus, again, being an improper governmental objective, segregated schooling would be perforce unconstitutional whether it had a detrimental impact on the education of minority children or not.
To be sure, Bolling’s ostensible “reverse incorporation” of equal protection via the Fifth Amendment due process clause is another matter. But given the application of the due process question, the two-pronged, means-ends test, and the evidentiary burden of proof being placed on the government to justify any discriminatory classification, is straight forward. And provides a straight-forward answer that does not rely on conclusions from any social science research.
In framing the legal question in Brown as an empirical question about whether segregation deprived children of equal educational opportunities, the Court missed the pedagogical opportunity to instruct the nation that when governmental classifications touch on race, it’s not a matter of whether the discriminatory classification measurably hurts someone or not. The government bears the burden of proof. It needs to prove that the purpose of the classification is legitimate (compelling in today’s judicial language) and the government bears the burden of proving that the classification attains its purposes (or is necessary to obtain the purpose in today’s judicial language).
The Court summarized in Bolling what was traditional jurisprudence even at that time, “Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions, and hence constitutionally suspect.”
So why did the Court in Brown then aim to answer a more-complicated, empirically-based question which the law at the time did not require it to answer?
One reason might have been that the justices thought striking down legal segregation on the basis of a failure to meet the burden of proof was too weak of a legal reed on which to rest such a propitious decision. If so, that was a missed opportunity for the Court, both legally and pedagogically. The mode of the Court’s reasoning in Brown suggests a weaker policy position relative to Bolling. Worse, it logically implies that segregation is permissible unless discrimination has some measureable, negative impact of racial minorities!
A different reason for the Court’s use of empirical studies in Brown might be that it aimed to answer a crucial empirical claim relied on in Plessy v. Ferguson to sustain the constitutionality of state-required racial discrimination. The majority wrote, “[E]very exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class.”
So far so good. The majority then advanced this empirical claim:
We consider the underlying fallacy of the plaintiff’s argument to consist in 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 that construction upon it.
In his dissent, Justice Harlan pointed out the disingenuousness of the majority’s claim. Harlan in essence articulated the two-pronged, means/ends approach to racial classifications, one in which the government has the burden of affirmatively establishing the legitimacy of need for the discriminatory classification.
Harlan had the better approach compared to the Court sixty years later in Brown. As in Bolling, Harlan simply pointed out that the governmental objective at issue in Plessy was constitutionally invalid.
While the Court in Brown might have thought it was advancing persuasive policy arguments to end racially segregated schools, the irony of Brown and Bolling being companion cases is that the more-parsimonious argument in Bolling is the more persuasive argument relative to the policy-oriented argument in Brown. More importantly, it is better in terms both of constitutional jurisprudence and for purposes of civic pedagogy.