Tuesday, February 16, 2010

"Re-Arguing 'Brown Versus Board of Education'"

Before she was appointed to the highest court in the land, Justice Ruth Bader Ginsburg observed that, as far as abortion rights were concerned, an “equal protection” argument was more legally supportable than the “privacy” argument that won the landmark Roe v. Wade Supreme Court case of 1973. For this learned observation, Ginsburg got severely yelled at by the supporters of abortion rights. Why? Because

“We got what we wanted. Shut the f---k up!”

They won the case. They didn’t care how. (Of course, if the issue comes up again, and they’re forced to defend the weaker argument, they’re going to be really sorry.)

A weaker argument was able to carry the day, because, by 1973, the majority of the country was ready to make abortions legal. I’ve heard it said that the Supreme Court never leads, which means, it never gets ahead of where the majority of the country, at that moment in history, is currently situated. With public opinion behind you, you don’t need the best argument, just a good enough one, and you’re in the clear.

This takes me, in my slithery way of thinking, to the decision that integrated America’s public schools – Brown v. Board of Education of Topeka, et al. By 1954, when the case was decided, the country at large was ready for integrated schools. The Supreme Court legitimized that readiness by making it the law.

(The vote authorizing school integration was nine to zero, largely because the then Supreme Court Chief Justice, Earl Warren, a former politician, and thus sensitive to the power of symbolism, made certain that the Court, including the Southern justices, would speak in a unanimous voice. This doesn’t happen anymore, partly because the Court is terminally divided along ideological lines, and partly because they no longer put politicians on the Supreme Court.)

The law Brown was replacing was Plessy v. Ferguson. Plessy established the principle of “separate but equal”, meaning: “Black children are required to go to separate schools, but those schools must be of equal quality to the ‘Whites Only’ schools.”

To spare you from reading the Brown decision in its entirety, I will now provide you with the opinion’s determining sentence. Which is this:

“Separate educational facilities are inherently unequal.”

“Separate is inherently unequal.” Such an assertion seems obvious today, but back then, it was a powerful enough argument to overturn a longstanding, crappy law.

The problem, at least to my legally untrained mind, is that “separate is inherently unequal” does not seem like a legal argument. The way I see it, expanding on the problems caused by “separate but equal”, Warren offers more of an emotional argument, based on a psychological reality.

“It’s bad for the kids.”

(In an experiment, segregated young, black girls were shown two dolls, one with a white skin color and one with a black skin color, and they were asked which doll was the “nice” one. The black girls invariably chose the white doll, indicating that, though separate, these girls clearly did not feel equal.)

Because Brown is in no jeopardy whatsoever, revisiting its argument seems entirely unnecessary. Of course, that won’t stop me from doing it. I’ve wasted my time in far less meaningful pursuits than this one.

Why am I bothering? In my view, the Supreme Court embarrasses itself whenever it bases its decisions on anything other than the most persuasive and supportable legal arguments. When they abandon that rigorous standard, the justices are simply a bunch of bullies, throwing their weight around. Behaving in this manner when their cause is just – as in Brown – gives justices the “Green Light” to throw their weight around whenever. And we’ve seen where that leads.

In other words, I’m doing this for the Court. So it won’t become a laughingstock, and cause one of our three branches of government to lose the respect of a nation.

The following is my, in my view, more legally grounded, argument explaining why the “separate but equal” position is unacceptable. There have been times when I’ve gotten a better idea, and I’ve gone back and rewritten a post after it had been published. If the members of the Supreme Court – and I’m sure many of them read this blog – decide my argument is stronger than the one currently on the books – I give them permission to replace the inferior version with its better. Then, down the line, when people study this case, they’ll say, “That’s a really solid argument. I mean, they could have said, ‘Separate is inherently unequal’, but that’s more of an emotional argument.”


“The Better Argument in Favor of ‘Brown versus Board of Education’”

By Earl Pomerantz.

Law student for five weeks.

I’m a little nervous. I’ve never argued before the Supreme Court before. Oh, well. Here we go.

“Mr. Chief Justice, and the other eight justices whose names I think I know, but don’t press me on it. Consider the idea of the contract. It seems to me that, in order for any contract to be legally binding, the conditions set down in that contract would have to be acceptable to both sides, meaning, both sides would have to accept the conditions set down in that contract. I just repeated myself. I’m sorry. I’ve never done this before.

“If this does not take place – both sides agreeing to the arrangement – then I put it to you, my partisan Justices, that that contract has no legitimacy whatsoever. It is simply a document, wherein one side tells the other side how things are going to be.

“I ask you, judges appointed for life, who continually give the party that appointed them the decisions they want, how can any arrangement – such as the decision to make public schools ‘separate but equal’ – satisfy the principle of equality, when one side – the ‘White’ side – gets to make the decision concerning that arrangement, while the other side – the ‘Black’ side – with no say in the matter whatsoever, is simply required to go along with what the 'White' side says? Can we say that such an arrangement is really equal? No. It’s simply, ‘This is the way it’s going to be, and if you don’t like it, too bad.’

“Now, if the ‘Black’ side, presented with the ‘separate but equal’ proposal, decided, ‘“Separate but equal” is okay with us’, then so be it. 'Separate but equal' it is. But what if, instead, they replied, ‘You know what? We appreciate your proposal, but, truth be told, we’d just as soon go to school with you.’

That would be equal. But that didn’t happen. The ‘White’ side proclaimed, “‘Separate but equal’, and the negotiation was over.

“An arrangement – a contract, if you will – is being negotiated on the issue of equality. And that negotiation is corrupted, on its most basic level, by an inequality in the decision-making process itself. How, oh, wise and impartial Justices of the Supreme Court, can the outcome of such a negotiation, by any recognized standard of legal ethics, be equal?”

That’s better, isn’t it?

Or should I just shut the f--k up?


Anonymous said...

So basically your alternative argument is is that since it is Team A that decides that Team B goes to a separate school, and Team B doesn't have to agree, then separate is inherently unequal.

A. Buck Short said...

In the arena of separate but equal,I'm so relieved Orthodox Judaism is allegedly consensual.

Max Clarke said...

Separate but equal wasn't a contract, so the Side A and Side B comparison is difficult to use accurately. Applying contract law to this issue would open a can of worms. The court made the right decision, it cleared the way for big changes in America. Contract law as a basis for this would have been a weaker foundation that the civil rights reasoning which was used.

growingupartists said...

Keep arguing your cases Earl, practice makes perfect.