John Roberts v. Thurgood Marshall

In 1954, the Supreme Court thought it had ended public school segregation. It was wrong.

On the first day of the Senate Judiciary Committee's questioning of John Roberts—who is a strong supporter of the sanctity of adhering to the precedents of Supreme Court decisions (stare decisis)—Democrat Joseph Biden of Delaware bluntly emphasized, however, that the Constitution is a living document.

For a striking example, Biden pointed out to Roberts that 58 years after the Supreme Court made "separate but equal" racial segregation the law of the land (Plessy v. Ferguson), a unanimous Court decided in Brown v. Board of Education (1954) that segregated public schools are inherently unconstitutional. Roberts agreed that Brown v. Board was a legitimate exception to stare decisis when it broke with the precedent of Plessy v. Ferguson.

Biden sweepingly added that the 1954 ruling had thrown "racial segregation . . . in the dustbin of history." No one in the hearing room questioned that conclusion. But neither Biden nor Roberts mentioned that a series of Supreme Court decisions since Brown have so weakened this much celebrated ruling that there are now more segregated public schools in the nation than in 1954.

Nor was there any reference to the fact that John Roberts—in the political post of deputy solicitor general in the Justice Department of George W. Bush's father—played a significant role in the strengthening of racial segregation in public schools when he signed the government's amicus briefs in two cases: Board of Education of Oklahoma City v. Dowell (1991) and Freeman v. Pitts (1992). His boss at the time was solicitor general Kenneth Starr.

Earlier in Roberts's career—which has been solely in the upper echelons of the law and not in the streets or even in the trenches of the criminal courts—Starr was Roberts's supervisor in 1981 and 1982, when Roberts was a special assistant to the attorney general in the Ronald Reagan administration. At the time, Starr described Roberts as "our civil rights shepherd." When both were promoted in George H.W. Bush's administration, Roberts remained the influential shepherd.

I am not saying or implying that Roberts or Starr is a racist. I know Kenneth Starr and respect him—however, we disagree on a number of constitutional issues. And having spent hours by now on the voluminous records of John Roberts, I see no evidence that he is a racist. But throughout history, government officials have taken actions that changed history—without their being at all sensitive to the effects of these actions. And since John Roberts is likely to become the Chief Justice of the United States, his part in the subsequent deterioration of Brown v. Board should become part of his record.

The 1991 case, Oklahoma City v. Dowell, is detailed in one of the most important books on American history: Richard Kluger's Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (Knopf). The 2004 updated version of this Pulitzer Prize–winning book is still in print, in hardcover and paperback. Because of how fragmentedly American history is taught in our schools, including universities, it's very much worth getting this book in view of the bleak civil rights prospects of the Roberts Supreme Court in the years ahead.

To the case: Oklahoma City's schoolboard had ended its 13-year-old school busing program mandated by a federal court to assure integrated elementary school grades. The schoolboard decision, Kluger notes, "left eleven city primary schools with all-black enrollments." The rationale: The city's residents had the right to send their children to neighborhood schools—"as if," Kluger pointed out, "blacks could readily pick their neighborhoods." (Emphasis added.)

The then Chief Justice William Rehnquist (John Roberts's mentor), ruling for the 5-to-4 majority, decided that the mandatory busing had been intended to remedy past intentional discrimination; but the time had come to go back to "the important values of local control of public school systems." Emphatically disagreeing, the NAACP sued.

This decision, which John Roberts helped facilitate, turned, wrote Kluger, "a blind eye" to its result—"inescapable future segregation" in Oklahoma City.

Dissenting was Justice Thurgood Marshall. For years, as counsel for the NAACP's Legal Defense Fund, Marshall had pursued a long, hard road through the lower courts to end this segregation—with a final triumph, so it had seemed, in the Ruling in Brown.

But with this decision, Marshall thundered, "The majority today suggests that thirteen years of desegregation was enough. . . . Remedying this evil—and preventing its recurrence—were the motivations animating the requirement that formerly de jure [by law] segregated school districts take all feasible steps to eliminate racially identifiable schools. . . . I believe that a desegregation order cannot be lifted so long as conditions likely to inflict the stigmatic injury condemned in Brown persist, and there remain feasible methods of eliminating such conditions."

The stage had been set for a ruling the next year in Freeman v. Pitts—when Marshall was no longer on the Supreme Court—and Justice Anthony Kennedy ruled for the majority that if blacks were residentially segregated, there was no state action mandating that kind of segregation. It was by "private choices."

Again, the Court acted as if the majority of blacks have free choice in where they live. The Freeman case is so important—in not only American history, but to the future of civil rights in a John Roberts Supreme Court—that, in the next column, I will provide its background in the years before Brown v. Board and the role in Brown of Dr. Kenneth Clark, whom I knew well, and who eventually came to refer to himself as "the last integrationist."

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