The next time a right winger uses Brown v. Board as proof that empathy has no place in the law

[Empowerer]

please remind them that Brown represents the utmost application of empathy in the interpretation of law in its purest and most admirable form:

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? We believe that it does . . .

To separate {Negro schoolchildren} 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 . . . Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial integrated school system.

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. ---Brown v. Board of Education, 347 U.S. 483 (1954)

Case closed.

[jobycom]

1. K&R. From a heartless judicial standpoint, Plessy v Ferguson was justifiable.

But a human understanding of inequality and its effects destroyed the "Separate but Equal" myth, and allowed the Court to overturn one of the worst decisions in our nation's history.

[sandnsea]

2. The right usually argues that Brown was all about empathy

They've changed their minds this week?

I would argue that Brown was meticulously crafted to center on the legal obigation of states and localities to provide an education, and the inability of minority students to gain an education in a segregated setting. It specifically discussed the lack of motivation to learn among people who believe they are inferior, which results in a lack of an education. I suppose the right makes their empathy claim on Brown because the case was based on sociology studies instead of pure law, but not considering sociology or psychology when making legal decisions about humans is as stupid as not considering science when making environmental decisions. Of couse the right doesn't mind doing that either.

But they really can't argue that the court doesn't need diversity because white men have the empathy to view law from different perspectives, and then ridicule the need for empathy too.

[EffieBlack]

5. You're right

And just as they once attacked Brown as you described, they now claim to embrace it - while, at the same time, do their best to dismantle every measure that enables the government and private entities to enforce it, insisting that "race-conscious" remedies have no place in America.

It's all pure hypocrisy, which all boils down to one simple thing: protecting at all costs the institutional advantage enjoyed by whites.

[nxylas]

22. Not all whites

Only male, heterosexual, Christian ones who can (at a bare minimum) afford a new luxury car every year.

[struggle4progress]

3. Wingnut anger about Brown v Board launched the movement against "Activist Judges"

Activist Judges <Matthew Yglesias>
I just watched Robert Gibbs go through an incredibly frustrating debate over whether or not the criteria President Obama has laid out for judges means he’s going to appoint some of the dread “activist judges” to the Supreme Court. I wish progressives wouldn’t be so defensive about this. The idea of an “activist judge” is something that was cooked up by white supremacists in the 1950s and 60s who didn’t like judges bossing people around and telling them they had to let black people vote and go to school ... William Rehnquist explained in a memo written when he was in the Nixon justice department “A judge who is a ’strict constructionist’ in constitutional matters will generally not be favorably inclined toward claims of .. or civil rights plaintiffs ... http://yglesias.thinkprogress.org/archives/2009/05/activist-judges.php

That Rehnquist comment explains why the rightwing has wanted SCOTUS appointees to be "strict constructionists" who follow "original intent" -- it's racist code language

[HamdenRice]

4. Very true. It's a strange opinion in some ways. Everyone should read it.

It has relatively little analysis of the equal protection clause, which is the actual constitutional basis for the decision.

It was based substantially on the sociological studies of Kenneth Clark, and the effect of segregation on school children.

No Supreme Court since would ever write an opinion like that.

The Warren Court also handed down a voting rights case -- about rural southern districts being over-represented in state legislatures -- that in addition to having a legal analysis had a passage that said, essentially, "people vote; trees don't vote."

[sandnsea]

6. Actually it uses science to make its case

Would you suggest the court cannot use science? It's a very short opinion, so it could fit into a newspaper unedited. There was little analysis of much of anything in it. The court concluded that the very act of segregation sets up a dynamic where equal education is impossible, education requiring the motivation of the individual which was not necessary to consider in Plessy. Advances in the sciences are used all the time to reverse court decisions, unless you join the right wing in the argument that sociology is just social do-goodisms.

"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial integrated school system."

[HamdenRice]

7. Actually, no science is not used in appellate courts

Or more precisely, appellate courts do not determine scientific issues. Appellate courts generally determine only issues of law. Science is an issue of fact, which is determined in the trial court, not the appellate court.

The more typical way that the opinion would have been written -- certainly the way it would have been written today -- is to accept a finding of fact by the trial court of injury to the children as determined by the application of social science, and then determined whether that injury, burdening one racial group, was a violation of equal protection under the Fourteenth Amendment.

I'm not saying that the Court could not discuss the finding of fact by the trial court in the opinion; just that it is a very unusual opinion because of the relatively superficial application of those facts to the history and jurisprudence of the equal protection clause.

The Brown decision reads more like a trial court opinion than an appellate opinion.

[Empowerer]

9. That's not quite true

While the Court decides issues of law, it doesn't do so in a vaccuum - it applies the law to the facts established in the record. In Brown, the Court reviewed the entire record developed in the trial court, including the scientific study conducted by Dr. Kenneth Clark. After doing so, the Court concluded that the damage done to these children by the imposition of state-imposed segregation, as proven in the trial court, meant that they were being denied equal protection under the law as guaranteed by the Fourteenth Amendment. Based upon that, the Court ruled that school segregation was unconstitutional, as a matter of law.

While you're correct that the Court determines only issues of law (the trial court determines the facts), it cannot rule on these issues of law without applying them to the facts - THAT'S where the empathy comes in.

[HamdenRice]

10. I don't see where you disagreed with me

Appellate courts do not determine issues of fact, but as I said they discuss them as they determine issues of law.

Brown has scant discussion of the issues of law -- which is why it's an unusual opinion and would not be written that way today. The Court today would have had a much longer discussion of the Fourteenth Amendment.

Are you saying it's not an unusual opinion and would be written that way today?

Any evidence of that?

I'm not sure what your point is.

[Empowerer]

13. My point is that your claim that Brown was oddly decided is not true

In fact, the case was decided precisely as you said was "the more typical way." The Court accepted the finding of fact by the trial court, applied the Constitution and relevant precedent to those established facts, and determined that the segregation of schoolchildren on the basis of race violated the 14th Amendment.

There was no need to get into a lengthy discussion of issues of law because there really weren't any - it was a very straightforward case. It was also a unanimous decision, so there was not a need for individual justices to write separate opinions. In fact, the justices deemed it critically important to speak with one, strong, solid voice, because of the monumental nature of the case, and the short, uncomplicated opinion did just that.

But it is not an unusual opinion - and under the same circumstances, there is no reason it would not be written that way today. Of course, the circumstances today aren't the same, since the Court is heavily weighted with political idealogues who would be very unlikely to overturn Plessy if presented with the same set of facts. But the anomaly lies with the current Court, not the Warren Court or its opinion in Brown.

[HamdenRice]

17. Do you base this view on having read thousands of appellate opinions?

I think I echo most legal scholars is saying that Brown is an unusual opinion. I base that on both my own reading of it compared to my reading of thousands of other appellate opinions, and on the consensus of scholarship about Brown. I should note that I'm focusing on the opinion, not the decision.

There was no need to get into a lengthy discussion of issues of law because there really weren't any - it was a very straightforward case.

This is definitely not true. There was at that point, a half century of precedent upholding Plessy and "separate but equal." It was not a straightforward case by any means because the lower courts and Supreme Court had to come to terms with why "separate but equal" now violated the Fourteenth Amendment after five decades of saying it didn't, and why "separate but equal" in elementary education could violate separate but equal while "separate but equal" could continue in other walks of life. Basically, the opinion sidesteps these issues with conclusory statements, which is unusual.

It was also a unanimous decision, so there was not a need for individual justices to write separate opinions. In fact, the justices deemed it critically important to speak with one, strong, solid voice, because of the monumental nature of the case, and the short, uncomplicated opinion did just that.

In fact, the justices were deeply divided and one theory is that is why the opinion is so vague. Warren wanted a unanimous opinion, but the justices held wildly divergent opinions about the power of the federal courts to apply the equal protection clause and due process to the acts of state governments. Ironically, the very same liberal judicial and legal forces who wanted to outlaw racial discrimination were the same ones who had tried to reign in application of equal protection and due process by reactionary federal judges against progressive states, when those doctrines were applied to strike down state legislative attempts to improve the conditions of workers and regulate business. Felix Frankfurter in particular was an absolutist on civil liberties, but didn't want to enforce civil rights against the southern states. There was great concern that Brown could undo the New Deal Court's work -- or worse, liberal scholarship going back to the pioneering work of Oliver Wendell Holmes -- which basically said that federal courts had to defer to any state legislative policy that could be deemed "rational."

In other words, one of the reasons there is no articulation of a theory of the Fourteenth Amendment in Brown is that Warren could not have gotten a unanimous opinion if he had tried to articulate such a theory -- not because the justices were in any way united.

[Empowerer]

19. Yes, I do - I am a legal scholar who has studied, taught and practiced this and I am very familiar

with Supreme Court jurisprudence, particularly in the area of civil rights.

I know what I'm talking about.

And I know, without equivocation, that by the time the Supreme Court heard the Browncase, this WAS a very straightforward issue - thanks to the groundwork laid by Thurgood Marshall and Charles Hamilton Houston, who created a series of precedents and established a trial record that enabled the Court to rule as it did and to do so unanimously. Yes, the justices were conflicted for various reasons. But they were able to reach the conclusion they did precisely because the NAACP lawyers had set up an unshakeable framework for them.

Your argument about Warren's desire to create an alternate theory is irrelevant to this discussion, since that is not what we're talking about. You claimed that the Court's decision was unusual in its approach. It was not.

[HamdenRice]

23. Well, I guess we'll have to agree to disagree.

In my reading, there are few Supreme Court opinions on such a momentous issues written in the style of Brown.

It side steps the legislative history of the Fourteenth Amendment (despite all the argument below about its meaning), declines to address due process, mentions the term, "equal protection" just once, and includes no footnotes.

To you that's perfectly ordinary. To me, it isn't.

[HamdenRice]

25. Just did a quick check of one well known source

Mark Tushnet's legal biography of Thurgood Marshall, "Making Civil Rights Law," has a few interesting observations about how Brown was crafted based on Supreme Court justices' notes. I won't bore you with the details, but here's the basic picture.

By no means had the NAACP convinced the Court by the time of Brown arguments and the deliberations of the judges. Marshall had brilliantly forced them to make a decision that he thought would ultimately go his way, but the justices hadn't decided. Douglas, who was for banning segregation, wrote a memo to files in May 1954 after the opinion was released that said that if the decision had been written right after Marshall's argument, the Justices would have ruled in favor of keeping Plessy, in favor of segregation, and against the NAACP. At that time, Douglas, Black, Burton and Minton wanted to overturn Plessy; Vinson, Jackson, Reed and Clark favored keeping Plessy. Frankfurter wanted to uphold it in the states, but ban segregation in D.C. (because it was a federal territory). Frankfurter also just wanted to delay and delay in the hope that Congress would pass a statute.

So, at least according to Tushnet, this seems to be an idiosyncratic interpretation:

And I know, without equivocation, that by the time the Supreme Court heard the Browncase, this WAS a very straightforward issue - thanks to the groundwork laid by Thurgood Marshall and Charles Hamilton Houston, who created a series of precedents and established a trial record that enabled the Court to rule as it did and to do so unanimously.

According to Tushnet, several of the justices were indeed concerned (as I mentioned above) that a decision outlawing segregation would be inconsistent with the New Deal Court, which said that federal courts must defer to state legislation.

Vinson's sudden death and his replacement by Warren changed the dynamic. Warren wanted to ban segregation on policy grounds as well as constitutional grounds because he firmly believed African Americans were not inferior. Douglas was focused more on the fact that segregation was simply unconstitutional.

Once Warren had persuaded a majority to vote to overturn Plessy, he was able to persuade the dissenters to go along with the majority. Jackson was convinced, still, that it was a political decision, and the opinion needed to be written as a political/policy justification.

According to Tushnet, that's in part why Warren dispensed with much of the legal argument on Fourteenth Amendment grounds that appeared in early drafts of the opinion, and focused on equal opportunities for school children. He also wanted the opinion to be understandable to the average citizen.

So, there is one source -- Mark Tushnet's bio of Marshall.

[Empowerer]

26. Thank you for that, but i am already very familiar with the background of Brown

Please reread my post. I did not say the justices had made up their minds before the argument. I wrote that Marshall and Houston had laid the foundation through more than a decade of careful strategic litigation that established a clear record of facts and established the strongest of precedents - that the justices later relied on to overturn Plessy. The foundation these legal giants laid was so strong, the Court did not need to go any further than they did.

I'm not sure why you're so insistent on arguing this point, but you'll have to find someone else to argue it with. I'm done.

[HamdenRice]

27. I'm only insistent because I believe in being fact based

Law is determined by judges and justices. In Brown, despite the brilliance of the Hamilton-Marshall strategy, the outcome was not at all uncontroversial among the justices, and probably would have gone the other way if Vinson had not died, and Warren replaced him.

Moreover, Warren was only able to get a majority by writing an unusual opinion -- and that's my basic point -- that skimmed over the legal doctrine to focus on factual issues.

Brown remains one of the more unusually crafted important opinions of our time.

[sandnsea]

11. Oh please, of course science is used

Environmental appellate courts are full of disagreements based on current science. The decision specifically said "the history of the Fourteenth Amendment is inconclusive". The lower courts based their decision on Plessy which had nothing to do with education, and which the lower courts ignored. The decision discusses previous case law on segregated schools and differentiates the functions of education from the environment of segregation on students. I don't think that was a finding in any of the lower cases. This was the basis of the decision.

[HamdenRice]

12. What law school did you go to?

Cause I think you were misled by one or more of your law professors. Appellate courts do not determine issues of fact. Scientific issues, including environmental issues, are issues of fact.

End of story.

[EffieBlack]

15. Sandnsea said nothing about appellate courts determining issues of fact

He/she simply stated a fact.

Why are you being so hostile/dismissive to those engaging in this discussion? It looks to me like everyone involved in this thread is very knowledgeable about the law - there is no reason for you to be snarky to them.

[HamdenRice]

18. I'm being hostile/dismissive?

Perhaps you should look upthread.

At any rate, there is no reason to accept the false claim that appellate courts determine issues of fact.

They don't.

[EffieBlack]

20. You keep throwing out a strawman - no one here argued that the appellate courts determine issues of

fact, yet you keep trying to argue this point. And you're doing it in a very hostile and dismissive manner, treating your correspondents as if they are ignorant and couldn't possibly know as much about the law as you do - when clearly they are very well versed on the topic.

Why not just address the OP's point? That the Supreme Court justices in a number of landmark civil rights cases did indeed demonstrate empathy, yet the right wing claims that those cases are proof that empathy is not needed in the justice system.

[HamdenRice]

21. Huh?

I'm the one who stated upthread that appellate courts don't decide issues of fact.

For some reason, a bunch of people seem to have a problem with that. So it's not a strawman. Therefore, you need to address those other posters, not me.

My initial post agrees with the OP, and says that style of Brown is unusual. Why that's controversial is beyond me. It's just one of those threads that has gone off the rails.

[sandnsea]

16. But they consider the accuracy of the science

and whether that science was applied correctly. It's how they decided that creationism does not advance academic freedom. They considered the accuracy of the science. You can't make a decision on such things based on law alone.

[Empowerer]

8. To separate them . . . may affect their hearts & minds in a way unlikely ever to be undone"

You're right that much of the decision was based on science, but this passage - one of the most moving I have ever read in a case - shows that empathy was an important underpinning of this decision. The science demonstrated something that struck the justice deeply - that segregation was damaging negro children's "minds and hearts."

That is the very essence of empathy. And thank God the justices on the Brown court had it.

[sandnsea]

14. I just wrote on that

http://www.obama-mamas.com/blog/?p=248 Racism, White Men and Supreme Empathy

"And that is what sends the right into fits. But it is really not just that they lack empathy, it is a fervent belief that empathy is not consistent with the interpretation of law. Some determine the content of the law and apply it to the facts of the case at hand. To go any further, to attempt to fill in missing gaps or correct particularly offensive or burdensome law, is practically abhorrent. Ed Whelan, former law clerk to Justice Scalia, goes so far as to call it a “lawless approach”. Giuliani, in a speech to the Federalist Society, said “ law schools, too many of them, had been confusing constitutional law with sociology...

"Empathy is not just a sympathetic emotional response to some temporary set-back, rather it is a mental projection into the state of mind of another person. It was the basis of Justice Harlan’s dissent in Plessy, wherein he understood the purpose of segregation was to impress upon a race of people that they were “so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.” Clearly it is more than the capacity for empathy that is in question, but rather it is the belief that utilizing that empathy is essential in analyzing and interpreting law..."

[Starry Messenger]

24. Excellent point Empowerer.

Thank you for a beautiful post.

[Empowerer]

28. Thanks!

[Honeycombe8]

29. AND...who's to say it wouldn't have happened sooner, if there had been minorities in the S.Ct.?

Hmmmmmm??????

[Empowerer]

30. It would have happened sooner if there had been a black justice before then . . .

But there could never have been a black justice until after Brown . . .