An excellent Op-Ed a few weeks ago in the LA Times by University of Chicago law professor Justin Driver puts current Supreme Court jurisprudence in historical context:
On March 12, 1956, the majority of Southern senators and congressmen joined forces in Washington, D.C., to publicize the “Declaration of Constitutional Principles.” Now known by its more evocative label, the “Southern Manifesto,” this statement denounced the Supreme Court’s unanimous decision in Brown vs. Board of Education, which two years earlier had invalidated racial segregation in public schools.
The nation will not celebrate Saturday’s 60th anniversary of the Southern Manifesto as it does civil rights victories — and for good reason. But we should not permit this crucial date to pass unacknowledged, because doing so invites the comforting delusion that the mind-set supporting the manifesto has been banished from polite society. Although the Southern Manifesto may seem utterly disconnected from current racial realities, arguments marshaled by its drafters presaged recent developments in the Supreme Court’s constitutional doctrine. …
In the 1960s, when it became clear that the Supreme Court would not reverse Brown, Southern Manifesto signatories shifted strategies from condemning the opinion to embracing their neutered version of it. They contended that Brown, properly understood, actually mandated “colorblind” policies. Under this theory, Brown forbade districts from even voluntarily striving for meaningful integration if they considered the race of individual students in pursuing that goal.
Today, this anemic reading of Brown is the law of the land. In 2007, the Supreme Court in a 5-4 decision invalidated school integration programs in Louisville, Ky., and Seattle. Although both programs enjoyed broad local support, the court reasoned that taking students’ race into account to promote school integration nevertheless violated the Equal Protection Clause.
In striking down those programs, Chief Justice John G. Roberts Jr. reached for Brown’s mantle, writing: “Before Brown, school children were told where they could and could not go to school based on the color of their skin.” For Roberts, the same principle that once required the invalidation of intentionally segregated schools now required the invalidation of intentionally integrated schools.
Rather than view the Southern Manifesto as the last gasp of a dying regime, it may be more accurate to understand it as the first breath of the prevailing order.
The key clause in the article in my view: “in a 5-4 decision.” And now back to our regularly scheduled programming …