How conservatives co-opted Brown (shocking revelations)

Writing in Slate, Risa Goluboff tries to channel her offense at legal conservatives' "appropriation" of Brown v. Board into an explanation as to how we've pulled off this dastardly act. How, wails the former Breyer clerk, "did they so easily convert Brown from an opinion championing racial equality into one that countenances — even requires — continuing racial inequality and segregation in the name of the Constitution?" She then pivots, perhaps without realizing at first that she has pivoted: we have "abstracted a decades-long struggle for racial progress into a single formalistic harm: government classifications on the basis of race."

See what Risa did there? She pivoted from talking about the particular case of Brown to the broader question of racial equality, and with superbly oblivious irony, performs this abstraction in the same breath that she accuses legal conservatives of abstracting from Brown to "a single formalistic harm: government classifications on the basis of race."

But it gets better, because when she reconnects with Brown - the case, rather than the talismanic incantation Risa et al have appropriated it as - Risa reaches a frankly stunning conclusion to her question. "How [did] conservatives appropriate[] Brown v. Board of Education"? How did we manage to paint that case as being a rejection of "government classifications on the basis of race"? Are you ready for this? Risa concludes:

Because that's what it says.

No kidding! She says:

Unfortunately for the liberal justices, Brown may not have been the sturdiest reed on which to rely in rebutting this conservative constitutional vision [i.e. that the constitution forbids government classifications on the basis of race1]. The truth is that although Brown did not invoke Justice Harlan's "color-blind Constitution" outright, the way it was structured, and the way it has often been read since, lends credence to the conservatives' modern interpretation. For Brown did, as the conservatives suggest, emphasize the formal problem of state-mandated segregation. It did, as they insist, suggest that the problem of de jure (legally sanctioned) segregation was more substantial and worthy of constitutional consideration than the problem of the myriad private segregations and discriminations and inequalities—what the court now calls de facto segregation—that also characterized Jim Crow.

"Emphasize"? It is only a question of emphasis, apparently, to read a case as deciding not only the case before the court,2 but the central issue of the age. The mind boggles! With shocking candor, Risa concludes that just because "Brown itself offers up a formalistic vision of racial harm does not preclude it from offering up other visions." Read that again carefully: just because a case says one thing doesn't mean that it can't mean something else. This is a law professor, ladies and gentlemen. No kidding.

Still, Risa's offense (and that of her various fellow-travelers) springs into sharp focus with this revelation: they're not really mad at us, they're mad at Brown! If only that case hadn't actually said what legal conservatives accuse it of saying -- if only it had said what it ought to have said -- we evil legal conservatives would never have been able to portray it as saying what it actually says!

Similarly, Justice Breyer's accusation that the majority's reading of Brown is a "cruel distortion of history" snaps into focus: what he means is, the majority insists on reading what Brown actually says instead of what Justice Breyer would have written if he'd been on the court. Justice Breyer is of course the most eloquent proponent on the modern court for bypassing a statute's text in favor of its purpose. He - and Risa - would evidently apply purposivism not only to statutes but to precedents, too: Brown only dealt with segregation, but that's only because they couldn't get a majority to say anything more, so in all fairness, you can't read Brown to say only what it actually says - you have to read it our way. To insist on actually reading the case to stand for the matter it purports to decide is a cruel distortion. Oceania has always been at war with Eastasia.

How "did [we] so easily convert Brown from an opinion championing racial equality into ... a single formalistic harm: government classifications on the basis of race"? It turns out that it's a lot easier to transmute base metals into gold when your base metal is, well, gold.

HT: Howard.

Related:
Irony

Post facto:
Bolling v. Sharpe reconsidered: precedent, original meaning, and prudence (part 1) (2/21/08)
Fighting for the Brown legacy (5/27/08)

1. 1. More properly, state government classifications on race - the equal protection clause applies only state actions. I continue to believe that Bolling v. Sharpe, 347 U.S. 497 (1954). was wrongly-decided.
2. 2. Which was, let it be remembered:

   These cases ... are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.

   In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment.

   Brown I, 347 U.S. 483, 487-8 (1954) (emphasis added and footnote omitted). In the remedial opinion, Brown II, the court characterized Brown I's holding as "the fundamental principle that racial discrimination in public education is unconstitutional." Brown II, 349 U.S. 294, 298 (1955). If conservatives have stolen Brown, as Risa and her fellow-travelers it was an inside job: Chief Justice Warren was in on it.