Judge Barrett Refuses To Accept the Mythicized Account of Brown
Generations of law students are taught about the majesty of Brown v. Board of Education. As the story goes, Chief Justice Warren was able to craft a narrow, unanimous opinion, to ensure the opinion would be widely accepted. And, with Brown, the Court finally overruled Plessy and the separate-but-equal doctrine. Most casebooks do not describe what happened next. Most students do not learn about Brown v. Board of Education II. Most students do not learn about the massive resistance. Most casebooks do not include Cooper v. Aaron.
The truth is far more complicated. Chief Justice Warren was able to finagle a unanimous opinion that said very little. It didn’t overrule Plessy. It didn’t require immediate desegregation. The majority decision allowed the lower courts to supervise desegregation with “all deliberate speed.” And the standoff at Central High School in Little Rock, Arkansas demonstrated that the federal courts, standing by themselves, were feckless. Indeed, after the Court decided Cooper v. Aaron, school districts simply shut down rather than comply with court orders. (See my article, The Irrepressible Myth of Cooper v. Aaron). The Court’s assertion of judicial supremacy was met with silence. This decision, better than any other, reaffirms that the Court is the least dangerous branch.
But judicial nominees do not dare recite this actual history. During his first hearing, Judge Kavanaugh repeatedly brought up the mythicized version of Brown. Even when he was not asked about Brown. (He also repeatedly brought up the unanimous U.S. v. Nixon decision, which was a prelude to his Vance dissent.) Over and over again, he praised Chief Justice Warren for reaching a unanimous decision. Kavanaugh certainly knows the true impact of Brown. But he wouldn’t say it, because the myth signals the right virtues. Here is how Kavanaugh described Brown during a colloquy with Senator Grassley:
But Brown v. Board, as I’ve said publicly many times before, the single greatest moment in Supreme Court history by—in so many ways; the unanimity that Chief Justice Warren achieved which is a—just a great moment; the fact that it lived up to the text of the Equal Protection Clause; the—the fact that it understood the real world consequences of the segregation on the African American students who were segregated into other schools and stamped with a badge of inferiority.
(“Lived up to the text”?! Come on. The text speaks of equal protection, not equal treatment. The opinion did not engage the text at all. And it affirmatively rejected history.)
Judge Barrett refused to buy into this mythicized account of Brown. I encourage you to watch her colloquy with Senator
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