Harvard Du Bois Institute; WGBH Forum Network; US Supreme Court and Race

It is now my great pleasure to introduce my colleague and friend Randall Kennedy who will open our discussion and then join Michael Clarke in a conversation the Michael R. Klein professor of law at Harvard University. Randall Kennedy is a scholar and widely cited commentator on race relations and civil rights law. After earning his law degree from Yale University he served as a walk clerk for Judge James Kelly Wright of the United States Court of Appeals from 1902 to 1983 and for Justice Thurgood Marshall of the U.S. Supreme Court for nineteen eighty three to nine thousand nine hundred four. Professor Kennedy is the author of four books including the magisterial race crime and the law which I still have in my undergraduate class every year as well as more recently Interracial Intimacies sex marriage identity and adoption in 2003 and most recently in 2008 Sellout The Politics of Racial Betrayal. He is currently at work on a book on race relations and the Obama presidency that should appear this fall. He was elected a fellow of the American Academy in 1998. I'm very pleased to introduce to you all Randall Kennedy.

Thank you. I'm delighted to introduce my colleague and friend Michael Klarman. Professor Klarman got his undergraduate education at the University of Pennsylvania. He attended Stanford Law School and after that when Marshall scholar Oxford we received his DE fill he clerk for then Judge Ruth Bader Ginsburg when Judge Ginsburg sat on the United States Court of Appeals for the District of Columbia circuit. And after that spent Michael Klarman became a much celebrated member of the faculty of the University of Virginia School of Law. He is now the Kirkland and Ellis professor of law at Harvard Law School.

Over the past several years he has written any number of. Articles and books chapters has written several books. My favorite of the books he's written is one that won the Bancroft Prize in 2005 it's called from Jim Crow to civil rights the Supreme Court and the Struggle for Racial Equality. There were a number of nice things that were said about this book I'll just read one because I know of. The author of this in Chromium quite well. This is what was said about this book in the pages of The New Republic. Carman study is a major achievement. It bestows upon its fortunate readers prodigious research new wants judgment and intellectual independence. I'm sure that these are traits that will be bestowed upon us

this evening. And it's my great pleasure to see the floor now to Professor Michael Carmen thank you. I'm going to talk to you tonight about the Supreme Court and race. I'm going to give you a brief historical overview and then I'm mostly going to focus on developments in the last 40 years since 1970. They'll be a few takeaway lines after I offer my description and I'm going to try to get this done within 30 minutes so that there will be plenty of time for some discussion with Randy and then questions from the audience. So I want to start with the conventional wisdom and then I want to try to debunk that conventional wisdom. The conventional wisdom is that the Supreme Court is a heroic defender of the rights of racial minorities. That's because the justices are somewhat insulated from politics. They're not directly politically accountable. That allows them to have so many element of independence and enables them to protect minority groups

against majority Tarion oppression. I want to challenge this idea that the court has historically played this role. Indeed I want to argue to the contrary that the Supreme Court more often than not has been a foe rather than a friend of racial minorities in general and African-Americans in. African-Americans specifically before the Civil War the United States Supreme Court upheld federal fugitive slave laws against constitutional challenge. The court struck down Northern State personal liberty laws that tried to protect African Americans from kidnapping in the famous Dred Scott case an eight hundred fifty seven. The court both held that Congress lacked the constitutional power to restrict the spread of slavery into Federal Territories and the court held that even free blacks did not have any rights that white people were bound to respect during and after Reconstruction. The Court invalidated federal civil rights

legislation. The court allowed the perpetrators of racial massacres and lynchings of African-Americans to go free on legal technicalities. Well into the 20th century the Supreme Court generally upheld laws segregating the races and sustain southern state measures address toward the disfranchisement of African-Americans. It's really Brown versus Board of Education in 1954 and its immediate progeny that are responsible for this romantic image we have of the Supreme Court as a savior of the. Interests of African-Americans now to be sure the court's ruling in 1954 which struck down state mandated segregation in public education was of enormous symbolic importance to African-Americans. Many contemporary African-American newspapers referred to Brown as the most important important event for blacks since the Emancipation Proclamation by

making Jim Crow seem more vulnerable. The Brown decision raised the hopes and expectations of African-Americans and thus helped to catalyze the transformative civil rights change that came in the 1960s. Yet one should not exaggerate the contribution that the Supreme Court made to progressive change in the 1960s. The Brown decision reflected social and political changes with regard to race at least as much as the decision made such changes possible. The ruling would not have been conceivable without the tremendous impetus for racial change provided by World War to the anti fascist ideology of the war. The contributions made by black soldiers. To this war for democracy the increasing migration of African-Americans from the rural south to the urban north where they exerted much greater political influence and finally the Cold War imperative for racial change that

followed the war. That is the perceived importance for the United States to eradicate Jim Crow as a way of appealing to third world nations which are mostly nonwhite to side with democratic capitalism in the battle with communism. All of those forces laid the groundwork for the Supreme Court's decision in Brown. Moreover the court followed its bold pronouncement in the brown one decision in 1954 with a ruling that was so weak and vacillating in Brown two in one thousand fifty five that I think the court actually led white Southerners to believe that it was possible to in September date the justices into eventually backing down from their decision. After Brown to the Supreme Court essentially vacated the field for the better part of a decade the justices apparently concluded that they did not have sufficient backing in public opinion or from the president or from Congress. And they concluded that they had no useful role to play until that sort of

support was forthcoming. There was no such immediate show of support as a result as late as 960 for a full decade after the decision in Brown as few as one or two in a hundred African-American schoolchildren were attending integrated schools in 1964 a full decade after the Brown decision. Now as the. As a direct action phase of the civil rights movement the sit ins the Freedom Rides the street demonstrations begin to sweep the nation in the early 1960s. The Supreme Court re-entered the fold the court again extended itself both with regard to school desegregation specifically and with regard to other racial issues more generally. In 1963 the court warned that the desegregation context had been significantly altered from what it was in 1954 1955 and that desegregation plans that might have been deemed

sufficient eight or nine years earlier no longer would necessarily be so in 1064 the justices ruled that school closures taken for the purpose of avoiding desegregation orders were unconstitutional. And in 1960 8 the justices in a case out of Virginia held that the constitutionality of school desegregation plans would depend not on whether they formally de segregated the schools but whether they actually achieved a significant measure of. Racial integration during the 1960s the court also went to great lengths to overturn the criminal conviction of sit in demonstrators. The court created a new constitutional law to protect the end of a Lacie against legal harassment by Southern states. The Court expanded the range of private actors which are bound by the anti-discrimination provisions of the 14th Amendment and the court upheld broad exercises of congressional power

on behalf of civil rights. In addition the Warren Court justices revolutionized the rules of criminal procedure and criminal defendants disproportionately belong to racial minority groups and the court also radically transform the law. Federal courts because the justices no longer believe that southern state judges could be entrusted with barely dealing with the civil rights of southern blacks and whites. For this short decade of the 1960s the court came about as close as it ever has to realizing this image of heroic protector of racial minorities. Then just as the civil rights movement reached its zenith shifting social and political forces disrupted racial progress. Opinion polls had shown that civil rights was the predominant issue on the national agenda from the spring or summer of 1963 through the spring of 964. But at that

point the Vietnam War displaced that from the number one issue on Gallup polls. Moreover a civil rights leaders began to shift their focus from the south to the north and broaden their agenda to include economic empowerment. Many previously sympathetic Whites lost their enthusiasm for the movement. Less than six weeks after President Lyndon Johnson signed the Voting Rights Act into law a race riot erupted in the watch neighborhood of Los Angeles killing 34 people and that proved to be the harbinger of dozens of other race riots in American cities. Later in the 1960s by the mid to late 1960s black nationalism which often issued racial interger integration as a goal and nonviolence as a tactic was sowing divisions within the civil rights community and souring many white Americans on racial reform. Indeed one can

see the white voter backlash erupting as early as 1964 in national politics. That's the year the Republican Party nominated Barry Goldwater for the presidency. Barry Goldwater was a vocal opponent of that year Civil Rights Act and in the 1964 election he won five deep south states and its home state of Arizona beginning accelerating a transformation in national politics that we still see to the present day blacks deserted the party of Lincoln in droves. And those whites most committed to the preservation of white supremacy switched at 100 years after the Civil War from being reliable Democrats into being reliable Republicans by 1966 a racial backlash was appearing in the north. Has there been race riots proposals for fair housing legislation and demands by African-Americans for economic empowerment. We're starting

to sunder the Civil Rights Coalition in one thousand sixty eight Republican presidential candidate Richard Nixon won the presidency on a platform of domestic platform of law and order a reduced pace a relaxed pace of school desegregation and an end to busing. 97 percent of African-Americans voted for Hubert Humphrey in 1968. Only 35 percent of whites did so the 14 percent of voters who supported the notoriously race that's George Wallace who was running on an independent party ticket. Those people those 14 percent provided an additional future temptation for the Republican Party to move even further to the right on race issues. Nixon's victory at the polls translated directly into changes in the court's racial jurisprudence. He got four new appointments to the court during his first term. Nixon's appointees quickly made

themselves felt with regard to the court's racial jurisprudence in 1074 the Supreme Court decided in its most important race decision most important school desegregation since Brown a case out of Detroit since out of Detroit called Milliken versus Bradley. The court ruled by a 5 to 4 vote that largely white suburban school districts could not be drawn into an urban desegregation to create unless there was proof that school district lines had been drawn with the deliberate purpose of preserving racial segregation. As a result of this decision federal courts were disabled from accomplishing meaningful civic desegregation in most American cities. In most American cities whites were fleeing the cities to the suburbs. It was not possible to have meaningful desegregation if you walled off the suburban school districts from the urban district. Nixon's

appointees were four of the five justices in the majority and Milliken versus Bradley. On another issue of tremendous racial importance the Burger Court ruled in a case called Washington vs. Davis in 1976 that laws that did not make a racial classification that is laws that on their face say nothing about race. Those laws would receive heightened judicial scrutiny. The most excuse me the most intensive form of judicial review. Only if the plaintiff could prove that they had been motivated by discriminatory racial purpose it was not sufficient to show that those laws simply had a disparate impact on racial minorities. So to give you an example of what's implicated by that decision as a result of that ruling. Federal sentencing guidelines that prescribe precisely the same punishment for possessing five grams of powder cocaine as

five hunters. Sorry five grams of crack cocaine. As for possessing 500 grams of powder cocaine those laws have survived constitutional challenge even though 90 percent of the crack defendants are black. And three quarters of the powder defendants are white and enormous disparate racial impact. But under the Supreme Court's racial jurisprudence not unconstitutional unless you can show that a discriminatory racial animus is what produces the law and the 978 Baki decision the Burger court narrowly ruled that race based affirmative action policies would be subject to the same strict judicial scrutiny as traditional Jim Crow legislation. Conservative justices then since I have read the 14th Amendment as a command of colorblindness that's a 14th Amendment that was adopted for the purpose of guaranteeing civil rights of recently freed slaves. The judge

these justices have read it to mandate colorblindness in the context of racially motivated measures designed to redress past discrimination. The court's overall record on race based affirmative action is mixed. Since the Bacchae decision the conservative justices have almost invariably voted to strike down affirmative action measures while the liberal justices have almost always voted to reject constitutional challenges to those measures. Individual case outcomes have been determined by the swing justices. First Justice Lewis Powell then Justice Sandra Day O'Connor. But it would be fair to say the court has invalidated more affirmative action laws than it has sustained. This hostility of the conservative justices to race based affirmative action reflects what I would call a constitutional double standard. These are the same justices who ordinarily For example in cases

involving abortion cases involving gay rights or physician assisted suicide professed commitments to judicial restraint to democratic decision making respect for states rights and a commitment to a constitutional methodology of textualism and originalism. Yet all of those considerations point in the favor of the court permitting race based affirmative action when the court strikes down affirmative action programs. It is unelected justices striking down the democratically chosen policies of state and local governments and they are doing it on a thin constitutional basis. The text of the 14th Amendment doesn't say anything about government colorblindness and the original understanding of the 14th Amendment which these justices ordinarily profess a commitment to abiding by. Does not mandate color

blindness. The people who wrote the 14th Amendment and their constituents were actually perhaps ironically too racist to support a complete ban on government racial classifications. We know for example that they thought that laws disenfranchising blacks were not forbidden by the 14th Amendment that's why the 15th Amendment was necessary. A couple years later they did not believe that excluding blacks from jury service violated the 14th Amendment. And they did not believe that laws forbidding interracial marriage or laws mandating segregation of schools violated the 14th Amendment. It is impossible I would submit to you to derive from the 14th Amendment a mandate for government colorblindness the Rehnquist court which succeeded the Burger court pretty consistently ruled against the interest of racial minorities although most of its decisions were divided narrowly along partisan lines. Since Presidents Ronald

Reagan and George H.W. Bush appointed five new justices to the court between 1981 and 1991 conservatives have enjoyed a secure majority on almost all racial issues. Although interestingly not on many other issues such as abortion and gay rights the death penalty or the separation of church and state by 1991 the last 10 amendments to the sorry the last 10 appointments to the Supreme Court had been made by Republican presidents none of whom garnered much more than 10 percent of the African-American vote in their presidential election victories. It was the Rehnquist court the Rehnquist conservatives court which sounded the death knell for court ordered school desegregation in a case from Oklahoma City in 1991 a narrowly divided court ruled that once a school district had

complied in good faith for a reasonable period of time with a court order desegregation decree and if it had a limb unaided to the extent practicable the past the facts of deliberate state sponsored discrimination then the school district was entitle to be released from its court ordered desegregation to crit. If terminating a desegregation decree under those circumstances resulted in increased school segregation which it almost invariably did then private housing preferences were responsible. The conservative majority said that and you could not fairly ascribe responsibility to the ensuing school ensuite for the ensuing school segregation to the government. In 1995 the conservative justices indicated that their tolerance for alternative remedies alternative to busing alternative remedial decrees involving increased funding to compensate for past

discrimination. That those were also unlikely to satisfy the court's scrutiny. In a 5 to 4 decision the Supreme Court forbad the use of magnet school programs for the for the purpose of enticing suburban whites back into urban schools. And the justices imposed virtually insurmountable obstacles to judicially mandated increases in educational financing as a remedy for school segregation. In addition to curbing court ordered school desegregation and race based affirmative action the Rehnquist court is conservative majority inaugurated a new strand of constitutional jurisprudence that called into question the permissibility of legislative districts that had been deliberately gerrymandered to enhance the ability of racial minorities to elect representatives of their own race. As with the conservative justices posture toward

affirmative action these decisions are very difficult to reconcile with the original understanding of the 14th Amendment which quite clearly was meant not to cover political rights but only the civil rights that distinguished former slaves from free persons. Perhaps most disturbing the Rehnquist court has proved largely indifferent to race discrimination in the criminal justice system. In a 1987 decision called McCluskey vs. Kemp the conservative justices narrowly rejected again a 5 to 4 decision they rejected an equal protection challenge to the discriminatory administration of the death penalty in the state of Georgia. Specifically according to a study that the justices stipulated they were accepting the validity of for purposes of the litigation defendants who murder whites were four point three times more likely to get the death penalty in Georgia. Then defendants who had murdered

blacks in other words Georgia was essentially devaluing the lives of its African-American citizens by refusing to administer administer the death penalty as aggressively when it was blacks who had been killed as opposed to whites rejecting the constitutional challenge. The court said that race discrimination could not possibly be entirely eliminated from the administration of the death penalty as long as actors who were entered role to the administration of the death penalty like jurors and prosecutors continued to exercise significant discretion. And the majority also noted that similar racial disparities probably existed throughout the criminal justice system which meant that indicating McCluskey's claims would have profound consequences throughout the system. One might have thought that that observation made McCluskey's claims more compelling but the court thought they made them

less compelling. In 2007 another slim conservative majority brought the court's racial jurisprudence full circle from Brown in 1954 the court had ruled that state mandated racial segregation in public schools violated the 14th Amendment. In 2007 the conservative majority in an opinion written by the new chief justice John Roberts ruled that for school districts to take race into account in order to promote the goal of racial integration violated that same 14th Amendment. Now the conservative majority in this 2000 seven case which is known as parents involved. They did not talk about the tax or original understanding of the Constitution they talked about a supposed mandate for colorblindness but they did not try to root it in the text original understanding probably because as I've already suggested it is almost impossible to route such an understanding

in the text or original intent. Instead the conservative justices relied mostly on Brown vs. Board of Education and extraordinarily on the NWA CPS argument to the Supreme Court in brown which is an unusual source of constitutional interpretation to say the least. I can't think of other examples where the Supreme Court relies on the arguments that a past litigant made to the court in a prior case as a source of constitutional interpretation. Now Brown of course does not have to be read as a mandate for government colorblindness indeed it can just as easily be interpreted to forbid only those racial classifications that were adopted for the purpose or that have the effect of subordinating traditionally disadvantaged racial groups. It's true that the NWA Sepi and Brown did argue at least in portions of its brief for government

colorblindness but that's not what the court gave the end of Alessi. The justices in 1954 were too wary of striking down anti miscegenation laws. That was an ex special explosive issue in the mid 1950s when opinion polls show that 90 percent of the country north as well as South opposed interracial marriages. The justices were too worried about striking down bans on interracial marriage to give the NWA CPA a flat out ban on racial classifications. Moreover the conservative justices in 2007 were taking the end of the lacy piece argument in brown badly out of context. The NWA CPA had argued for government color blindness in the context of a system of formal Jim Crow white supremacy to approach the n Double A C P as repudiating race

conscious government efforts to redress past discrimination to promote racial diversity in a setting where nobody could have dreamed of legislatures adopting such measures which is the case in the 1950s. I think that is quite disingenuous. I would draw three lessons from this brief historical journey that I've just led you through. What should we conclude from the last 40 years. First of all most of these rulings were our five to four. Had there been one more liberal justice. Many if not most of these decisions would have come out differently. Thus it was not in any sense predestined that the United States Supreme Court would for the most part reject race based affirmative action prematurely terminate the school desegregation project or reject the argument that the Constitution bars not only discriminatory purposes but

also racially disparate impacts constitutional interpretation I would suggest necessarily implicates judicial discretion judicial discretion reflects political ideology and conservative justices tend not surprisingly to reflect the conservative racial ideology of the party that appointed them that ideology embraces a narrow formalised understanding of what counts as race discrimination. It accords the use of racial preferences whether they are benignly motivated or not and it deems this nation's ugly history of racial oppression as something more to be repudiated than to be remedied. Second while the political composition of the United States Supreme Court is to some extent fortuitous the victories of the conservative bloc of justices since 1970 has predominantly

been a function of politics between 1969 and 2008. Republicans controlled the Presidency for twenty eight years. Democrats only for 12 of the 14 appointments made to the United States Supreme Court between 1969 and 2006. Twelve of them were made by Republican presidents most of whom prided themselves on their conservative politics because constitutional interpretation is so inextricably inextricably linked with politics. I don't think we should be very surprised that justices who were appointed by presidents for whom very few black people voted would decide race inflected cases in ways that contravene the preferences of most African-Americans. Third and finally I think one has to wonder at least a little bit how much difference it would have made had the liberal justices had their way and had the decisions come out

in the direction that the liberal justices would have favored public opposition to busing the suburbs was so intense by the early 1970s. Think for example of the race riots that erupted in Boston in 1970 or Boston the so-called cradle of abolitionism that it's a little bit hard to believe that the Supreme Court had come out the other way in Millican versus that Bradley and approved of judicial bussing of the suburbs that the justices could have made that decision stick. It's quite plausible that there would have been a constitutional amendment or that there would have been massive defiance of such a decision a conservative majority majority of justices it's true has managed to invalidate most affirmative action policies that have reached the court. But even when the Liberals have won an occasional triumph such as the University of Michigan Law School case from 2003 that result has been overturned at the polls as it was in a

referendum in Michigan a couple years later because most Americans seem inclined when asked to vote on the topic they seem inclined to vote against race based preferences. So. Miller by the time the court in 2007 struck down school board policies that took race into account with the aim of promoting integration. By the time the court struck those down only 5 to 10 percent of school districts in the country had such policies. Most of the country had already given up on racial integration in grade school educate in grade schools So to sum this up in the last 40 years of conservative Gemini on the court we have had consistently racially regressive results pretty much across the board. But one should not absolve the larger society that the court serves of its share of responsibility for those outcomes.

The United States Supreme Court mirrors American society at least as much as it shapes it. The conservative justices could not have voiced sted this conservative racial jurisprudence on the American people without their acquiescence. Thank you very much. Thank you very much. Mr. Harmon I'm going to take things off. You know we have a nice intimate group here we can have a. Good discussion. I have one comment and two questions to start things off. A comment is this. I'm very sympathetic to your debunking spirit and think that there's far too much of Supreme Court worship. We see it all the time and we see it certainly at

every confirmation hearing of a person who wants to be elevated to the Supreme Court. We see these this insistence by everyone the Nama need senators the president we see this insistence upon distinguishing between politics on the one hand and a law on the other. So there's this Montreaux of course about the. Yeah. The the the person who once the nominee insisting that he or she will as they say interpret the law and not make a law. Hear that over and over and over again. We also see this cult of the court in journalistic conventions. So for instance I mean every seen by every day on listening to the news reports. There is talk of the government over here. And then there's

the courts over here as if the courts are not part of the government. It's it's a convention but I think it's a convention that you hear over and over and over again and it has its effect on the way in which people think. Now here are my true questions. One where does the holds of court worship come from and why does it hang on. Given the history that you walk in there are lots of there. Brown vs. Board of Education certainly helped put a halo over the Supreme Court Brown versus Board of Education as several decades in the past. So why and why of history that you have detailed. Why is it that it is still the case as you indicate from the outset Why is it still the case that there are many people. Including racial Progressive's who insist that the court is somehow special

who insists that the court has to be or should be. As a matter of course or almost institutional design. A friend of racial minorities What explains that. SEC. And would it be good for racial progressives to do what you've done. Would it be good for racial progress as to engage in a systematic debunking of the court. One of the things that prompts me to ask that question is the attitude that was taken by one of the judges for whom I correct for Jay Scalia right. A crusading liberal judge a judge to desegregated the New Orleans school system and for his efforts had his family put under armed guard for a couple of years when I clerked for a judge right of the people in legal academia about whom he was most concerned. The group

at which he was most angry was critical legal studies and other radical legal realists. And I asked him about this and it seemed sort of strange given his politics why was he so angry at them and he said well the reason I'm so angry at him is because in their debunking of the courts you know if people in his position was we want the populace to obey the courts. Because if the populace does not obey the courts when the courts rule as and brown people won't listen. And frankly he was more afraid of white populism than he was afraid of the tendencies that were the subject of your talk. His view was that you know you have to. What are you most afraid of. And he thought that the racial progress is would get

more from the rhetoric of rule of law of constitutionalism of frankly court worship. He thought they would get more out of that than they would out of a realistic view of the court system. So what he had to say about those two things. OK. Two things plus a comment right. Those are great points let me let me start with a comment. I would distinguish a little bit between formalism and CT worship I think what you were describing most was a formalistic understanding of what judges do which is as Chief Justice Roberts said in his confirmation hearings calls balls and strikes as Justice Sotomayor said in her congress in her confirmation hearings. Empathy has no place we follow the law. That's formalism that's the idea that judges can be on pyres they can be autonomous automatons. Nobody who studies constitutional

law in the United States could I think realistically believe that judges are not making as much law as they are interpreting law so on every major issue of constitutional dispute United States abortion school prayer affirmative action the death penalty the separation of church and state federalism whether the Supreme Court should intervene in the Florida recount almost every imaginable issue the court divides 5 to 4. And it's not. Because one set of justices is following the law and the other side is making it up. It's because politics necessarily is implicated in constitutional interpretation. So I would just reject the formalist as a kind of pretense that goes on in Senate confirmation hearings. But everybody on the Supreme Court all those justices are bright enough to understand that that's not really what they do that when they decide that campaign finance regulation is unconstitutional that they are

expressing political disagreement as well as a legal disagreement. I don't know whether Court worship is necessarily tied up with formalism I think you can be a legal realist and believe that judges exercise discretion or you can be a formalised and think judges don't exercise discretion and still believe in court worship So I think those might be two separate points. Now the code of court worship this idea that the Supreme Court is responsible for protecting our liberties that if we didn't have a Supreme Court we wouldn't have a right to free speech we wouldn't have racial equality it would wouldn't have gender equality and so forth. I'm not sure I have a great explanation I think that's mostly rubbish. I think the Supreme Court operates at the margin and we have largely the same society with some marginal differences. There are lots of countries around the world that we recognise as being essentially as free essentially as egalitarianism who would never dream of entrusting this much authority to judges interpret the Constitution. Part of the part of the myth about Brown is that people

like founding myths so that in the same way people like to believe that a guy named after Doubleday invented baseball on a field in upstate New York. They like to believe that Brown versus Board of Education created the civil rights movement. It's much more complicated to believe that a variety of social and political forces largely emanating from World War Two like the Great Migration like growing black political power like the role of African-American soldiers like the anti-fascist ideology of the war that those sorts of things contributed to a powerful civil rights movement and that Brown really was contributing to a movement that was already well underway. The justices themselves totally understood that if you look at the internal deliberations in brown they're all saying things about how struck they are by how much the world of race is already changing they don't think they're creating a movement for reform. Some of the myth may just be comforting. It's a comforting sort of story to believe that the Supreme Court will

rescue us if we ever do anything awful. But of course it's not true. We had slavery we had white supremacy we had Japanese-American internment we had McCarthyism. The Supreme Court did nothing to rectify any of those things right the court the courts interventions are marginal and they come after the fact even in areas like race where the court decided Brown the court had first decided placidity. So the Supreme Court never is at the vanguard of movements for social reform the court is always bringing up the rear. The other explanation would be the role of lawyers lawyers have a more profound role in the United States than any other country in the world. And of course lawyers are committed to this myth because it embellish is the role of the legal profession in the judiciary. So of course they want to believe that lawyers and judges and courts are fundamentally responsible for creating whatever civil rights and civil liberties we treasure. Racial Progressive's and debunking the court I do believe quite strongly that Progressive's have been lured

into litigation and that it's been a really fundamental mistake. Progress is fell in love with the Warren court. They came to believe because of the Warren court that the Supreme Court could fight their battles for them. The Warren Court was deciding issues in favor of Progressive's like separation of church and state like protection of privacy rights. Race issues free speech issues protecting criminal procedure rights. The Warren court was adopting the agenda of the liberal wing of the Democratic Party. And I think it was easy to fall in love with judicial review in the Supreme Court. The problem is I think at least twofold One is that the Supreme Court is not always going to be controlled by progressives. So we've seen that in the last 40 years when the court more often than not has been controlled by conservatives. But the other may be less self-evident but

more I think more consequential problem is that if you win in the court. Before society is prepared for the victory you want a hollow victory. And I think we've seen that on issues like abortion and the death penalty where the Supreme Court in 1972 threatened to abolish the death penalty a little bit before the country was ready for it and created a massive backlash in favor of capital punishment. The Supreme Court struck down abortion with such a far reaching decision in 1973 that it invigorated a right to life movement that previously had not played much of a role in politics. And you've seen the same thing in the last six or seven years with regard to court decisions and gay marriage. These decisions that produce powerful political backlashes that have led to 30 states adopting constitutional amendments barring same sex marriage. And it had very beneficial effects at the polls for Republican Party candidates. The same thing was true with Brown.

Brown had. Almost no effect in the south for 10 years. It wasn't till national opinion had gotten behind Brown that you got the 1964 Civil Rights Act that you got legislation threatening to withhold funding from school districts that continued to segregate legislation authorizing the U.S. attorney general to bring desegregation lawsuits. It's only when Congress and the president in national opinion got behind Brown in 1964 that actual desegregation took place. So I think progressives you know understandably but regrettably fell in love with the court in the 1960s and that's a mistake these battles have to be won in public opinion. It's not that the court can't play a useful role. But if you think you can win in the court and the country is going to blindly fall in line with the court's decision there's just no reason to think that's true that's never been true. People who lose in the Supreme Court rally in opposition and fight and struggle

against the court they don't lie down and roll over and play dead and say now the courts told us what the rule will be. We're going to follow it. That's a common you're warning of that interplay of politics in court. Well they can. But I think you went astray when you tried to apply it to the world of other countries. In fact you said you can imagine other countries adopting our system whereas the truth is that since World War 2 successively many major countries that had never had a system of judicial review on national constitution or have adopted it deliberately following the American model. Germany has a constitutional court with a worldwide reputation and very significant decision. South Africa after the end of apartheid adopted a system of a bill of rights in a constitutional court which has repeatedly held government

action is invalid and has certainly had a profound effect on that society and Britain has just recently written the European Convention on Human Rights into domestic law giving the courts in Britain for the first time and this is a really radical change. The power to declare legislation of Parliament inconsistent with convention. So I think you should. So my my point was that there is no other country in the world where lawyers play the role that they play in the United States and there is no other country in the world where courts interpret and constitutions have as much impact on public policy and I'm going to stand by that point. It's true that since World War 2 a great many countries as you point out have followed the American model have written constitutions have been interested judges with the authority to interpret those

constitutions. It's also true that many other countries have followed American social mores across a broad array of issues McDonald's has exploded across the world as well. Other countries follow the United States for better and for worse. Other countries that have written constitutions and judicial review none of the. Have intrusted to their unelected judiciaries authority over most profound social conflicts that arise so the United States is the only country in the world where almost every issue of social conflict that you can imagine ends up getting resolved by the Supreme Court the death penalty. FIRMAT event actually on gay rights abortion separation of church and state. Whether we can limit spending on on on elections whether a presidential election recounts ought to take place in in the state of Florida. Every one of these issues is resolved in the United States by courts. It's true that in other

countries there is judicial review that courts are starting to assume greater authority. But I'm comfortable with the claim that no other Supreme Court exercises that authority. And the other point that I. Would run a emphasizes there are lots of other countries that have written beautiful Constitutions like the Soviet Union and the Constitutions don't really mean very much. So the point that I really want to emphasize is basic tolerance protection of civil liberties and civil rights. They come from having a tolerant society. They might come from some of the basic insights James Madison had about the structure of government in the Federalist Papers but they don't for the most part come from having nice words on a piece of paper work being enforced by courts the Supreme Court and those plays a sort of marginal role. Now you might say those points are in conflict I think there might be some tension between those two points I just made. One the Supreme Court adjudicates every important issue. But to the Supreme Court it most plays a marginal role because for it to a large extent the

court reflects public opinion. There may be some tension there but I think both of those points are for the most part right. And I think in the United States more than anywhere else in the world the courts really are taking over a very broad swathe of jurisdiction whether it matters a huge amount depends on the other point which is whether the court ever deviates that far from public opinion. I would agree with the previous speaker if you can. You know I think that what we're learning in South Africa is that constitutional court not the Supreme Court. In fact plays a huge role in playing the agency of the marginalized in a whole range of ways. So on socio economic issues on housing. So I think that an understanding of these institutions of power as having the possibility to both and enable

the agency of all communities is absolutely crucial. So that's that's the one point. The other question I'd like to ask you and my question comes from a very specific place because I live in South Africa and I engage with issues of affirmative action. I'd like to know your thoughts on the argument that race based preferences require race classification and race classification in terns of reproach. In turn he produces ideas of race. Now part of that argument comes from a colorblind perspective. But there is also an anti racial argument that is often much more nuanced argument that is often misinterpreted that argues roughly for the same. But that also argues as I do in my own work

for looking behind the race categories for what you know lives behind them in order to create new indices. Oh those kinds of inequalities. If you would kindly let me say a word about the comment then I get to the question. I don't know enough about the details of South Africa constitutionalism I don't have a sense of what it is that the South African court has done in any detail in the last 15 years so I can't comment about whether the South African role or court has played a more constructive contribution. I would simply emphasize you mention the point that they that the court can enable as well as hinder. I absolutely agree with that the Supreme Court can do things that from a variety of political perspectives will seem either good or bad. My view is I think I'm making the point that simply from the perspective of racial progressive or progressive of a broader stripe. It's not at all clear that traditional review over the course of American history has been more of a hymn help than

a hinderance to the cause of racial progress of the Supreme Court for the first hundred fifty years of its existence mostly involve itself in issues of economic redistribution and it mostly intervene on the repressive rather than the progress of side between nine hundred thirty seven thousand nine hundred sixty nine. The court was controlled by New Deal fair deal liberals who more often than not decided cases in the way that someone of my political ideology with it would agree with in the last 40 years the court more often than not it's been controlled by conservatives who more often than not decide cases in a way I disagree with of the same court they can strike down racial segregation the same court that can strike down gender discrimination can also strike down affirmative action. They can strike down New Jersey's attempt to require the Boy Scouts to admit gays they can strike down campaign finance restrictions they can hand the 2000 presidential election to candidate Bush over candidate Gore. There is nothing inherent in judicial review that would cut in a progressive direction.

And even when the court does things that we would regard as positive from a progressive perspective there are costs of that. At one cost is that the court confers a certain legitimacy on the status quo after the court decision. So when the Supreme Court strikes down racial segregation and nonetheless African-Americans continue to go to disadvantaged schools schools that are unequal. It's a lot easier to say well the Supreme Court solved the problem in brown. If you still have a problem it must be your own fault it can't be the Constitution's fault because the Supreme Court has cured the segregation problem. The other difficulty is when people rely on the court they're not sufficiently vigilant. They don't seek to protect themselves as much in the political sphere. They don't try to mobilize as much social. Now I don't think that's actually true about the gay rights movement I think the gay rights movement learned from what happened with Roe versus Wade that it's not enough just to rely on the Supreme Court. But it's pretty common

in the pro-choice groups in the 1970s to reflect back on Roe and say what happened after Roe is we won this huge victory and then it became impossible for us to mobilize our supporters anymore because why should you go on fighting in 50 state legislatures when you already have the federal Constitution on your side. So I think there are costs to even even when you win in the Supreme Court and I'm not convinced that progressives are going to win anymore they're going to lose it depends on who happens to sit on the court. Now on the question I'm not positive that I followed it entirely but I'll try to respond to what I think I understood. Race based preferences don't require racial classifications. You can adopt measures designed to promote the interest of racial minorities that are facially neutral. So take for example the Texas so-called 10 percent plan where you stop using race based preferences and what you say instead is we're going to accept the top 10 percent of every high school graduating class into the

University of Texas and we know that some of these graduating classes are going to be mostly Latino or mostly black because of residential segregation. That is an effort to promote the interests of racial minorities without using a racial classification. And the Supreme Court suggested in the Michigan at least that the oral argument the University of Michigan case that it much preferred that you use these kind of surreptitious. Racially motivated efforts to promote the interests of racial minorities. Now it's not clear whether the conservative majority would permit even the use race conscious but racially facial neutral measures. The division in the most recent cases is the parents involved case in 2007 where the Seattle and Louisville school districts are consciously taking the race of students into account trying to promote some semblance of racial balance. So there are lots of other factors they're using in allocating students.

But the race of a student might end up being dispositive because they're trying to preserve some racial diversity in schools. The court struck that down by 5 to 4 the most conservative four justices say the Constitution requires colorblindness the way to end race discrimination is to stop discriminating based on race. Justice Kennedy who is the fifth vote on almost every issue said that he might allow racially motivated but race neutral measures. But he first wanted you to try to sorry he said you. He might allow race conscious measures but he's not going to allow Rick facially race based measures unless you've first shown that you've exhausted all other alternatives. So Kennedy was very specific if you want to have a magnet school program for the purpose of encouraging whites back into the urban school system. That would be fine with him. If you want to draw if you

want to locate new schools in integrated neighborhoods rather than segregated neighborhoods hoping they'll be integrated schools. That's fine with him. Chief Justice Roberts Justice Scalia Justice Thomas they're probably going to strike that down as well. But Justice Kennedy will vote with the liberals. Now there's a whole nother other question about whether race based affirmative action is the right way to go or whether we should be focusing on class based affirmative action. My view is we should do both. I see them as serving different objection objectives. But it's clear that it's a lot more politically salable sellable to have class space to permit of action and it's probably legally easier to justify under the Constitution. So if the University of Michigan wants to admit students from disadvantaged backgrounds students who grow up in violent neighborhoods there's no constitutional objection to that. But if they take race into account today there are five votes to strike that down

as Justice O'Connor's on the court anymore and Justice Kennedy would be the other. Bring it locally now back to the United States. Two questions for both of you really. If the Supreme Court has not been the champion of civil rights. In healing the racial polarity cetera which would you in comparing it to the other two branches has been the better champion. That's the first question. The second question is can you identify the period. If we use instead of brown reconstruction is the epicenter for race in the law. Where the Supreme Court has been most agree aggressive and progressive in advancing civil rights.

You know I might have to ask you to repeat the second point but I can try to answer the first and then you can repeat the second or maybe Randi wants to say something as well so you're exactly right that we always want to ask the court as compared to who. And it's certainly true that the NWC he is litigating in the Supreme Court because the alternative is so unattractive and in the 1950s. Now sometimes the president was sometimes the president was acting first so Harry Truman did desegregate the military in the federal civil service by executive order. But it's not like Congress was going to pass civil rights legislation. It's not like Southern legislatures were going to desegregation. So you absolutely have to fight on whichever battle grounds are most attractive. I think the point I would emphasize is Thurgood Marshall and his predecessor Charles Hamilton Houston totally understood this. You don't put all your marbles into one basket and you don't see litigation as just about winning a case in the Supreme

Court. Litigation for Charles Hamilton Houston and Thurgood Marshall was a method of mobilizing social protest. It was the best method available. In the 1930s you couldn't engage in sit in demonstrations in the south in the 1930s because you would have been beat up or kill African-Americans in the south couldn't use political power because they were disenfranchised they couldn't use economic clout because they were mostly still sharecroppers and tenant farmers. You didn't have a lot you could do other than litigate. But they were very clear and Mar and Houston says this all the time. We have to prepare the social and political environment at the same time that we're litigating because judges reflect the social and political environment. And of course the NWC Pete didn't even ask the Supreme Court to strike down school segregation until after World War 2 because they knew they weren't going to win. Now one clear cost of developing too much of a fondness for litigation and the end of the ACP in the

early 1960s. Clearly was slow talk to direct action. So the first reaction of Thurgood Marshall in the end double ACP to the sit in demonstrations was to try to shut them down. The NWA CPA had a long history of focusing on letting litigation and lobbying and direct action protest was something that they did not initially support. That I think was a clear blind spot with the aid of hindsight the sit ins and the freedom rides in the Birmingham street demonstrations those were much more effective agents of social change then a Supreme Court decision in Brown which in fact meant very little intil there was a social movement behind it that was able to enforce it. Maybe Randy wants to say something about spam. Two quick things one your response to the first question is so sobering. You say well the Supreme Court is not consistent champion who has been none of the

branches of government have been consistent champions. Right. Maybe take a look at the Congress look at the president. The president I must say is often me doesn't get it. Enough attention certainly in the law school world doesn't get enough attention. And if you think about for instance the importance of executive orders in constitutional law classes you don't talk about executive orders a lot but you know they mancipation proclamation was an executive order really. The desegregation of the military was an executive order Harry Truman. But I mean you know the realistic response is there has been a consistent champion of racial minority rights with respect to any of the branches of government. One little thing when the Warren court. I mean again in keeping with I'm generally sympathetic to your view if anything I'd say maybe there's been you're detailing almost giving too much credit to the Warren court.

I mean after all in 1965 at the high point of the civil rights revolution. The Warren court brings us a case Swayne birth of Alabama that permit it facial racial discrimination with the deployment of peremptory challenges it took another three decades and Thurgood Marshall's unceasing. To six for the Supreme Court to revisit that issue. That was 1960 but. Loving versus Virginia the most aptly titled case in all of American constitutional history Loving versus Virginia is decided when it's decided years after Brown vs. Board of Education is decided at the end of the civil rights revolution 1967 the Supreme Court of the United States allowed people to sit in prison and to be prosecuted for marrying across the race line until 1967 and that

that's a such a sign of how cautious and in my view how unduly cautious the Supreme Court was so even We're talking about the Warren court. We should recognize that it was a very limited stream we cautious in its dealings on that very very sobering note. I'm going to have to begin to call the session to a close. Please join me in thanking Michael Klarman and Randall Kennedy for a very very remarkable. Thank you.