HistB61 Midterm Study Guide

8/8/2019 HistB61 Midterm Study Guide

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Hist B-61: THE WARREN COURT Midterm Study Guide

United States vs. Carolene Products Co. (1938)

Facts of the Case

A 1923 act of Congress banned the interstate shipment of "filled milk."

A manufacturer, indicted for shipping filled milk, challenged the law.

Question Does the law violate the Commerce Power granted to Congress in

Article Section 8 and the Due Process Clause of the Fifth Amendment?

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Conclusion

The Court upheld the act. In this otherwise unremarkable case, theCourt planted the seeds for a new jurisprudence in a footnote four to

Stone's opinion for the Court. Stone gives a presumption of constitutionality

to economic regulation, saying The Court would no longer substitute itsviews on economic policy for the views of Congress. Stone went further in

footnote four by cautiously asserting that certain types of legislation mightnot merit deference toward constitutional validity. The most controversial

element in the footnote was the suggestion that prejudice directed against

discrete and insular minorities may call for "more searching judicial inquiry."

Regulatory legislation affecting ordinary commercial transactions isnot to be pronounced unconstitutional unlessit (does not) rest upon some

rational basis within the knowledge and experience of legislators

- Changed the standard of review, harder to demonstrate that a statute is

unconstitutional.

- Produced an enormous tendency to the Supreme Court not strikingdown laws.

- Counterpoint to New Deal position of government involvement.

- Creates a rift in the Supreme Court regarding differential preference of

property vs. civil rights, those in favor of across the board judicialrestraint vs. greater involvement.

Lochner v. New York (1905)

Facts of the Case

The state of New York enacted a statute forbidding bakers to workmore than 60 hours a week or 10 hours a day.

Question

Does the New York law violate the liberty protected by due process ofthe Fourteenth Amendment?

Conclusion

The Court invalidated the New York law. The majority (through

Peckham) maintained that the statute interfered with the freedom ofcontract, and thus the Fourteenth Amendment's right to liberty afforded to

employer and employee. The Court viewed the statute as a labor law; thestate had no reasonable ground for interfering with liberty by determining

the hours of labor.

Represents a shift from procedural to substantive due process

- Substantive: is the law fair? Concerns rights of the court not explicit inthe constitution. In this case, it was unclear whether the court had the

right to strike the statute down. Use of substantive due process tostrike down laws characterized the Lochner Era.

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- Procedural: is the law fairly applied?

Justice Holmes dissent

- This case is decided upon an economic theory which a large part of thecountry does not entertaina constitution is not intended to embody a

particular economic theory- CaveatI think that the word liberty in the Fourteenth Amendment is

perverted when it is held to prevent the natural outcome of a dominant

opinion, unless it can be said that a rational and fair man necessarilywould admit that the statute proposed would infringe fundamental

principles as they have been understood by the traditions of our peopleand our lawa reasonable man might think it a proper measure on the

score of health

The decision became a hot topic for progressive criticism of the court.Holmes opinion universally accepted as beacon for judicial restraint.

Fiss, Troubled Beginnings of the Modern State, pp. 3-5,6-8

- The Fuller Court was characterized as an instrument of the propertiedclasses, dedicated to stopping the masses in their effort to curb big

business.

- Passed Lochner v. NY, as well as legislation invalidating protection ofunion activity by applying the Sherman Anti-Trust Act to a labor

organized boycott. The court was greatly at odds with the currentprogressive President, Theodore Roosevelt. 1912 election becomes an

occasion for a broad-based political and social movement to express its

anger and disappointment with the court. Roosevelt endorses the recallof judicial decisions as a check upon the abuses of judicial power.

- Pound denounces the work of the court as excessively mechanistic anddivorced from changing economic and social realities.

- Holmes dissent provided a critique of the court from within.

- Following Fullers death, influential progressives like Charles EvansHughes and Louis D. Brandeis were appointed to the court, but the

attitudes of Lochner continued to prevail.- Rift from Lochner in the 1930s: Following the Great depression, FDR

enacts an extensive program of state intervention. Court clings to

Lochner and invalidates some early New Deal legislation. Antagonismbetween legislative and judicial branches intensifies. Roosevelt

threatens to appoint judges sympathetic to his viewpoint to the courts.

Proposed an increase in the size of the courts in his infamous court-packing plan.

- Does not occur in 1937 the court adopts a New stance, repudiating

Lochner (court reversal in consecutive years and the introduction of the

rationality test)

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West Virginia State Bd. of Ed. v. Barnette (1943)

Facts of the Case

The West Virginia Board of Education required that the flag salute be

part of the program of activities in all public schools. All teachers and pupilswere required to honor the Flag; refusal to salute was treated as

"insubordination" and was punishable by expulsion and charges of

delinquency.

Question

Did the compulsory flag-salute for public schoolchildren violate the

First Amendment? Conclusion Jackson Majority, Frankfurter dissent

In a 6-to-3 decision, the Court overruled its decision in Minersville

School District v. Gobitis and held that compelling public schoolchildren to

salute the flag was unconstitutional. The Court found that such a salute wasa form of utterance and was a means of communicating ideas. "Compulsory

unification of opinion," the Court held, was doomed to failure and wasantithetical to First Amendment values. Writing for the majority, Justice

Jackson argued that "[i]f there is any fixed star in our constitutionalconstellation, it is that no official, high or petty, can prescribe what shall be

orthodox in politics, nationalism, religion, or other matters of opinion orforce citizens to confess by word or act their faith therein."

Jacksons Majority Opinion

- The refusal of the children to participate in the ceremony did not

interfere with or deny rights of others to do so. (Evokes the clear andpresent danger standard of the first amendment)

- The sole conflict rests between authority and the rights of theindividual

- Question of whether a compulsory salute and slogan is a legitimate

way to arouse loyalties. A person gets from a symbol the meaning heputs into it. What is one mans comfort and inspiration is anothers jest

and scorn.- Compulsion is envoked even though silence does not present a clear

and present danger.

- It is not necessary to enquire whether non-conformist beliefs willexempt from the duty to salute unless we first find power to make the

salute a legal duty- Compulsion is not a valid means for achieving national unity

- Emphasizes the beneficial nature of diversity of opinion.

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Frankfurters dissent

- Applies the rationality test says WV court passed the law for thepurpose of attaining food citizenship.

- The constitutonal protection of religious freedom gave religious

equality, not civil immunity (freedom from conformity to law because ofreligious dogma), otherwise individuals could pick and choose which laws to

abide by.

- The flag salute is not an oath test, and does not dictate what childrenand parents should believe.

Adamson v. California (1947)

Facts of the Case

Adamson was convicted in California of murder in the first degree.

During the trial, the prosecutor, in accordance with a California law, made

comments to the jury which highlighted Adamson's decision not to testify on

his own behalf. Question

Is a defendant's Fifth Amendment right not to bear witness againsthimself applicable in state courts and protected by the Fourteenth

Amendment's due process clause?

Conclusion Frankfurter concurring, Black dissent

A divided Court found that the the Fourteenth Amendment's dueprocess clause did not extend to defendants a Fifth Amendment right not to

bear witness against themselves in state courts. (The Bill of Rights didnot apply to the states before the civil war) Citing past decisions such

as Twining v. New Jersey (1908), which explicitly denied the application ofthe due process clause to the right against self-incrimination, and Palko v.

Connecticut (1937), Justice Reed argued that the Fourteenth Amendment

did not extend carte blanche all of the immunities and privileges of the firstten amendments to individuals at the state level. In a lengthy dissent which

included a deep investigation of the Fourteenth Amendment's history, JusticeBlack argued for the absolute and complete application of the Bill of Rights

to the states.

Significance: Frankfurters opinion that the 5th Amendment did not applyto the states is one of the last of its kind before the slow process of

incorporating more and more of the Bill of Rights into the 14th Amendment.

Blacks Dissent: Black becomes the leader of the due process revolutionThe first 10 amendments were proposed and adopted largely because of

fear that Government might unduly interfere with prized individual liberties.The people wanted and demanded a Bill of Rights written into their

Constitution. The amendments embodying the Bill of Rights were intended tocurb all branches of the Federal Government in the fieldstouched by the

amendments-- Legislative, Executive, and Judicial. The Fifth,Sixth, and

Eighth Amendments are pointedly aimed at confining exercise of power by

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courts and judges within precise boundaries, particularly in the procedureused for the trial of criminal cases . . . My study of the historical events that

culminated in the Fourteenth Amendment . . . persuades me that one of the

chief objects that the provisions of the Amendment's first section,separately, and as a whole, were intended to accomplish was to make the

Bill ofRights, applicable to the states.

Shelley v. Kraemer (1948)

Case: Shelley attempted to buy land subject to a covenant restricting

ownership to whites. A neighbor sued, the trial court denied relief

because the covenant hadn't been signed by all neighbors, the

Supreme Court of Missouri agreed with the suing party, the USSupreme Court reversed.

Supreme Court's reasoning (opinion by Vinson): the private agreement

for ownership restriction does not violate the 14th Amendment, but

the Supreme Court of Missouri did violate the amendment by grantingjudicial enforcement to the agreement. The action of courts is

regarded as action by the State, therefore courts are limited by the14th Am. The Amendment refers to "exertions of state power in all

forms", so even if the agreement was originally private, its

enforcement is public, thereby violating the Amendment.

Wermiel, Rights in the Modern Era: Applying the Bill of Rights tothe States

Between 1925 and 1969, the Supreme Court ruled that mostprovisions of the Bill of Rights function as check on the power of state

governments, and not merely as limits on federal authority.

Incorporation the process of applying the bill of rights to the states.

The framers of the constitution believed that problems could be dealt

with on a state level, as most state constitutions incorporated a Bill of

Rights

The Bill of Rights was added to alleviate concerns about the power of

the national government.

After a series of cases in which the BofR was ruled to not apply to thestates, Congress passed the 14th Amendment in 1866.

Ruled that states may not abridge the privileges or immunities of

citizens of the United States and that no state may deprive anyperson of life, liberty or property without due process of the law

The Slaughter-House cases shot down the privileges and

immunities clause

Brennan really set the Supreme Court on the path towards gradual

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adoption of the BofR. Justified it with a need for vigilance to preventgovernment from whittling away the rights of the individual.

Korematsu v. United States

December 1944

Delivered by: Justice Black

Background:

Immediately after the Japanese bomb Pearl Harbor, ~120,000 Japanese and

Japanese-Americans on grounds that they posed a national security threatand would be subversive. Many American citizens were interned, constitutingthe first and only instance of forced internment of U.S. citizens. Fred

Korematsu was 23, an American citizen. He was issued evacuation order andforged his identity, had plastic surgery, and assumed that identity of a

"Spanish-Hawaiian". He was arrested as he was walking down the street. An

ACLU lawyer visited him in prison and offered to use his case to test theevacuation decree.

Justice Black defended the decision because he said it was a matter of

military strategy and they weren't in the position to second-guess military

commanders. The Japanese in Hawaii (approximately ~200,000 of them)however, were untouched because they contributed so much to the state's

economy. Yes, this was a time of war, but interesting to note that German-Americans and Italian-Americans were also untouched. Obvious racism. In

California, for example, there were more cases of racial prejudice againstJapanese than Blacks, perhaps due to sheer number of them. Justice Warren

was then the attorney general of California and was one of the three mostpowerful people in the Japanese internment case. By the time Warren died,

he hadn't publicly apologized for his role in Korematsu. Even so, his memoirs

show he felt conscious pangs after this decision.

Decision: Justice Black said any law that classifies according to race wouldhave to undergo "strict scrutiny"the opposite of the rationalist test.The

Court decided 6-3 that the US was acting constitutionally, because "[t]herewas evidence of disloyalty on the part of some, the military authorities

considered that the need for action was great, and time was short."

Dissent: Justice Murphy

Justice Murphy sees these measures as racist. Says there must be limits to

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military discretion, especially when martial law hasn't been declared. Anymilitary claim must be subject to "having its reasonableness determined".

Murphy makes the point that there was no comparable discriminatory action

towards Italians, Germans, the only difference being the Japanese havingbeen "born of a different racial stock." He sees this dangerous in light of the

"despicable treatment of minority groups" by the very governments the U.S.had "pledged to destroy."

Pull quote: "I dissent, therefore, from this legislation of racism."

Dissent: Justice Jackson

Jackson seems to dissent on the ground that being in a time of war does not

mean the Court could accept military orders regardless of their

constitutionality. He says a commander is "not making law" and issuesorders that "may have a certain authority as military commands, although

they may be very bad as constitutional law." But once the militaryemergency is over, whatever arguments made to justify the undermining of

constitutionality remains an issue and "lies about like a loaded weapon ready

for the hand of any authority that can bring forward a plausible claim ofurgent need."

Pull Quote: "The courts can exercise only the judicial power, can apply only

law, and must abide by the Constitution, or they cease to be civil courts andbecome instruments of military policy."

Freedom From Fear

The American People in Depression and War

David M. Kennedy

The sheer size of the Japanese community in Hawaii and theircontributions to the the state's economy impeded any motion to

evacuate them. The mainland Japanese community was smaller, more

economically marginal and socially isolated.

At first, General John DeWitt condemned any discriminatory action against

Japanese-Americans, saying "An American citizen, after all, is an

American citizen." He later chanced his stance to: "A Jap's a JapIt

makes no difference whether he is an American citizen or not"Internees underwent loyalty interrogations. If they refused to foreswear

allagience to the Japanse emperor and answer if they were willing toserve in the US mility (which many did, offended at the questions or

suspicious that they were being recruited for death-missions) weredeemed disloyal and dispatched to a camp. If they answered yes,

they weren't recruited into a segregated, all-Japanese regiment and

dispatched to fight in Italy.

Aides counseled Roosevelt to accelerate releases from camps, because the

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reality of how wrong the internment was hit them. Roosevelt (whohad previously dismissed criticism with "[T]his must be a military

decision.") feared that releasing the Japanese all of a sudden

especially before the 1944 presidential election!would not be thebest idea. So he took his time with that.

In a coerced evacuation and compulsory internment case, Hirabayashi v.

United States, Justice Murphy warned that these had a "melancholyresemblance to the treatment accorded to members of the Jewish race

in Germany and in other parts of Europe."

Colonel Bendetsen drafted Final Report, Japanese Evacuation from theWest Coast, 1942, with DeWitt's signature. Evacuation justified as

being a "military necessity." HOWEVER, Justice Department lawyerswere shocked to read blatant falsehoods (about subversive activities,

illicit radio transmissions, etc) in the Report. Justice Dept. debated

about what to do. If they were clear with their findings, the "militarynecessity" argument would prove to be rubbish, so they attached The

Footnote. The controversial footnote used measured language: "in

several aspectsparticularly with reference to the use of illegal radiotransmitters and tosignaling by persons of Japanese ancestry, inconflict with information in the possession of the Department of

Justice." (Italics mine)

Assistant Secretary of War McCloy read this and freaked because heunderstood the implications of the footnotethe whole internment

program would be declared based on bogus evidence and

unconstitutional. He insisted the Justice Dept. remove the footnote.Under pressure, they did.

On the day before the Court decided the Korematsu case, the government

declared the period of "military necessity" was over.Reparations to Japanese-Americans. Korematsu receives Medal of Freedom

from President Clinton.

Interesting result: younger Japanese-Americans break out of tradition andcultural isolation and become more assimilated.

What of African-Americans in the army in WWII? Also in segregated units.

Army in 1940 only had 5 black officers, navy only took them forservice positions like cooks, and stewards. No blacks in elite positions

Asa Philip Randolph was head of Brotherhood of Sleeping Car Porters, all-

black union of railroad workers. He pushed for government to stopdiscriminating against blacks in military. He got a private audience with

President Roosevelt through Eleanor Roosevelt. Thought Roosevelt wassympathetic, shocked to learn he wasn't going to do anything about the

matter. Organized a march in Washington. Roosevelt insisted he call it off,

Randolph refused. As a result, Executive Order 8802 was passed, prohibitingdiscrimination on basis of race, creed, color, or national origin. Didn't

mention segregation, but still considered a victory.

Plessy v. Ferguson (1896)

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Case: Plessy, who claimed to be 7/8 Caucasian, refused to leave a

train coach reserved for whites and he was prosecuted for it. TheSupreme Court of Louisiana upheld the constitutionality of the statute,

the US Supreme Court upheld it as well.

Supreme Court's reasoning (opinion by Brown): The statute does notviolate the 14th Amendment because the separation of races does "not

necessarily imply inferiority of either race". The question is reduced towhether the statute is "a reasonable regulation" and gauged by the

standard of "established usages, customs and traditions of the

people", it is. An example of these traditions is the segregatedschooling in DC, which "does not seem to have been questioned".

"We consider the underlying fallacy of the plaintiff's argument to

consist in the assumption that the enforced separation of the two racesstamps the colored race with a badge of inferiority. If this be so, it is

not by reason of anything found in the act, but solely because thecolored race chooses to put that construction upon it."

Dissent by Harlan: "Every one knows that the statute in question had

its origin in the purpose, not so much to exclude white persons fromrailroad cars occupied by blacks, as to exclude colored people from

coaches occupied by or assigned to white persons".

"What can more certainly arouse race hate,..., than state enactmentswhich, in fact, proceed on the ground that colored citizens are so

inferior and degraded that they cannot be allowed to sit in publiccoaches occupied by white citizens? That, as all will admit, is the real

meaning of such legislation as was enacted in Louisiana."

The Brandeis Brief (Muller v. Oregon 1908)

In 1908, Louis Brandeis submitted to the Supreme Court a brief thatargued for constitutionality of state law limiting women's working

hours, using vast amounts of social data to support his argument,creating a precedent for bringing social facts into legal considerations.

Context: The Supreme Court of at that time had defined the word

"liberty" in the due process clause (clause prohibiting the deprivationby state governments of "life, liberty, or property without due process

of law") as including the liberty of contract. This resulted in the Court

striking down many state laws that regulated the employer-employeerelationship. Such construal of this clause originated in 1894 in

Allgeyer v. Lousiana, where the state attempted to regulate marineinsurance companies. In Holden v Hardy (1898) the Court upheld state

regulations, but the case was not used as a precedent later. Lochner v.

New York (1905) was famous as a symbol of the judicial era, andJustice Holmes's dissent became equally famous (Constitution "is not

intended to embody a particular economic theory").

Brandeis's criticism of Lochner: 1. Judges "unequipped with thenecessary knowledge of economic and social science". 2. Judges had

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reversed their policy that legislation was constitutional unless provenotherwise. 3. Rationale underlying Lochner was the absence of

connection between statutes and public health.

Brandeis brief - 1. Two pages of legal argumentation - stating thatunless court finds no fair ground to say that there is danger to public

health if the hours aren't curtailed, it must uphold the statute. 2.

Ninety-five pages of social statistics entitled "The World's Experienceupon which the Legislation Limiting the Hours of Labor for Women is

Based".

Court upheld the statute and credited Brandeis for the decision.

Impact: lawyers defending regulations knew they had to submit social

statistics. Reenactment of Illinois statute limiting women's work hours

(defended by Brandeis, 600 pages of data), a number of other casesfollowed. Subsequently, Roscoe Pound and Oliver Holmes argued for

understanding of laws as based on experience rather than logic.

Brandeis personally: in favor of broad spheres of lawyer activity, notthe specialization that was ushered in by his brief. A complicated view

on women's suffrage and other rights.

Brown v. Board of Education (1954) (Brown I)

Case: Brown was coupled with a number of cases, all of which featured

African-American minors who were denied admission to all-whiteschools. Federal district courts upheld the doctrine of "separate but

equal" of Plessy v. Ferguson, the US Supreme Court unanimouslyreversed.

Opinion of the Court (Warren): First, there is no conclusive evidence

on what was the intention of the framers of the 14th Amendment, sothe case has to be decided in light of current state of public education.

In considering the doctrine of "separate but equal", the decision

cannot be based merely on "tangible" factors, but also on intangibles(precedent for considering intangibles was set by Sweatt v. Painter

and McLaurin v. Oklahoma State Regents). Citing psychological studies(footnote 11 included among others K.B.Clark's "Effect of Prejudice

and Discrimination on Personality Development"), the Court concludes

the doctrine of "separate but equal" has no place in the field of publiceducation. "Separate educational facilities are inherently unequal".

Since the decision has far-reaching consequences, the case will be

restored to the docket for reargument of questions 4 and 5 (questionsregarding application of the decision, the subject of Brown II).

Bolling v. Sharpe (1954)

Importance: applies the decision from Brown I (which applies only to

states) to federal policy.

Case: African-American minors were refused admission to public

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schools in DC based solely on their race, district court dismissed theircomplaint, US Supreme Court decided as stated above.

Opinion of the Court (Warren): Even though the 5th Amendment does

not contain an "equal protection" clause (which is present in 14thAm.), discrimination may be so unjustifiable as to violate due process

in the 5th. Segregation does not fulfill any government objective, so it

constitutes an arbitrary violation of people's liberty. The Courtprohibits the federal government from maintaining racially segregated

schools.

Brown v Board of Education (1955) (Brown II)

Opinion of the Court (Warren): After an oral reargument (participants

included Attorney General of the US and AG's from involved states)

the Court has decided to localize the implementation of Brown andallow flexibility in its adoption. Courts are required to "take such

proceedings and enter such orders and decrees consistent with this

opinion [Brown I] as are necessary and proper to admit the parties tothese cases to public schools on a racially nondiscriminatory basis withall deliberate speed". School authorities have the primary

responsibility for solving local problems; courts will have to consider if

schools's actions consider "good faith implementation" of Brown; localcourts that previously heard these cases are best qualified for this

judicial appraisal.

The Southern Manifesto (1956)

"We regard the decisions of the Supreme Court in the school cases asa cleat abuse of judicial power."

"The original Constitution does not mention education. Neither doesthe 14th Amendment nor any other amendment."

The manifesto mentions Plessy v. Ferguson (1896) and Lum v. Rice

(1927) as precedents for the "separate but equal" doctrine. It claimsthe decision is without legal basis and that it "has planted hatred and

suspicion where there has been heretofore friendship andunderstanding".

"We pledge ourselves to use all lawful means to bring about a reversal

of this decision which is contrary to the Constitution and to prevent the

use of force in its implementation."

Klarman - Brown, Racial Change, and the Civil Rights Movement

Argues that the national civil rights legislation of the 1960s, not Brown,that brought transformative racial change to the deep South.

First, argues that in the long term, racial change in America was inevitablebecause of deep-seated social, political, and economic forces that were

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leading to impulses for radical change, regardless of Supreme Courtintervention, to the point that Brown was possible in 1954 only because

the forces for change had been preparing the ground for decades.

Disagrees with the popular theory that Brown inspired the civil rights

legislation, arguing instead that Brown crystalized southern resistance toracial change, which propelled politics in the South to the radical right.

Extremist leaders were elected who promised to do anything to maintainJim crow, resulting in nationally televised scenes of southern lawenforcement suing police dogs, tear gas, and other objectionable tactics.

These events converted millions of previously indifferent northern whitesinto enthusiastic proponents of civil rights legislation.

Kalman

Instead of debating whether courts can transform society, the interesting

aspect is that people still have confidence in the ability of courts to changesociety for what judges believe is the better.

The Fourteenth Amendments due process clause gave judges unusualpower. Though liberal law professors revered the Warren Court, its activism

made it more difficult for them to fulfill their goal to see the Court base itsdecisions on objective foundations of justice. Brown spurred the

development of both liberal judicial activism and contemporary constitutional

theory.

Rosenberg - The Hollow Hope

Pretty straightforward: argues that Brown was completely unsuccessful indesegregating schools, which was essentially its goal. Points out that major

reforms in practice came only after the civil rights legislation of 1964-65.

Parents Involved v Seattle School District (2007)

The Seattle School District used race as a determinate in student enrollment

within its high schools in order to maintain racial diversity within theirschools. A non-profit group by the name of Parents Involved in Community

Schools sued the district, stating that the use of race to determine student's

enrollment violated the Equal Protection Clause of the FourteenthAmendment as well as the Civil Rights Act of 1964.

The Supreme Court, in a 5-4 decision, reversed the lower courts ruling on

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the premise that there was no "compelling government interest" as earlierestablished in Grutter v. Bollinger, to maintain racial diversity. The court

argued that since there was no history of segregation in this particular

district they were not mandated by the constitution to desegregate. In otherwords the segregation that exists is de facto segregation not de jure

segregation. Furthermore, the court claims that continuing to "discriminate"based entirely upon race will perpetuate its importance within society, even

if it is for benign purposes. The court argues, "The way to stop

discrimination on the basis of race is to stop discriminating on the basis ofrace."

In Justice Thomas's concurrence, he challenges the notion that a black child

can only learn if he is next to a white child. He uses many social science

citations and statistics showing that black students can achieve in anenvironment with little racial diversity.

In a concurrence, by Justice Kennedy who did not join the majority in all

aspects of the opinion of Chief Justice Roberts, writes a narrower opinionand differs from the majority in his belief that obtaining a diverse student

body is in fact a compelling state interest.

"Diversity, depending on its meaning and definition, is a compelling

educational goal a school district may pursue."

However, Kennedy agrees to concur with the ruling because he does not feel

that race should be the only factor in deciding and creating diversity.

In Justice Breyer's dissent he argued that the majority opinion drasticallychanged the established law and would take away a community's ability to

fight resegregation.

Some terms to know from this case is De jure and De facto segregation

De jure segregation: Segregation that has resulted due to law or

government intervention.

De facto segregation: Segregation that has resulted due to individual choices

and other circumstances.

Wechsler, "Toward Neutral Principles of Constitutional Law" (1959)

In this article Wechsler is arguing against the way recent court cases have

been decided, in particular the 1954 decision of Brown. Wechsler believesthat the court should make decisions based up neutral principles rather then

value choices. In his view the problem with Brown is "strictly in thereasoning of the opinion." He explains that the decision did not overturn

Plessy but instead simply declared that separation by race in education is

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"inherently unequal". Wechsler maintains that the judgment was not basedup the facts but "rested on the view that racial segregation is, in principle, a

denial of equality to the minority against whom it is directed."

Black, "The Lawfulness of the Segregation Decisions" (1960)

In this article Black supports the decisions made by the court regarding the

segregation decisions. He uses Justice Stone's interpretation of the 14th

amendment, which states that there should be no law that hinders the rightsof any US citizen, and that all citizens should be seen as equal under the

law. He uses the idea that any law has some inherent inequality, in the sincethat denying a bad driver a drivers license is in effect disadvantaging bad

drivers. He clarifies this point by explaining that equality within the law does

not actually mean "equal" but instead it means "equal unless a fairly tenablereason exists for inequality." Black argues that there is no justifiable reason

for treating blacks unequally as the 14th amendment rejects discriminatingagainst blacks simply based upon the color of their skin. So no matter how

"reasonable" some may see treating blacks as inferior and unequal, it is notjustifiable under the law, it is in direct contrast with the 14th amendment

and is thereby unconstitutional. Black strongly affirms that the use of

societal and psychological implications of segregation upon AfricanAmericans is significantly important and justified in the courts ruling. He

gives many examples of the negative impact segregation has upon blacksand asserts that segregation's purpose is to subjugate the black race.

Letter From Birmingham Jail

MLK writes his letter as a response to a group of clergymen whocriticized his actions of civil disobedience.

Argues that injustice anywhere is a threat to justice everywhere

Says negotiation in Birmingham failed, which is why he was forced to

take direct action to force the community to stop ignoring the issue

and actually negotiate.

Says there are two types of laws: just and unjust and that one has a

moral responsibility to disobey unjust laws. Quotes St. Augustine: an

unjust law is no law at all

o Defines just and unjust laws in terms of moral law and the law

of God.

o Cites theologian who said sin is separation to argue that

segregation is sinful, and hence segregation ordinances are

unjust.

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o Examples: Hitlers actions were technically legal

o Laws can be unjust if they affect a minority which has been

denied the right to vote.

o A law can be just on its face, unjust in its application (i.e.

parading laws)

Criticizes the white church for not supporting the civil rights

movement, and in many cases for fighting against it. Says he expected

more of them, but that instead they have been preaching only the

status quo.

Points out the hypocrisy of violent police retaliation against non-violent

protesters.

We will reach the goal of freedom in Birmingham and all over the

nation, because the goal of America is freedom.

Horwitz, Natural Law and Natural Rights

Says the Lochner Court illegitimately brought natural law into Court

decisions

Positive law: law which has been actually stated (i.e. the constitutions,

statues, well-settled legal precedents)

Natural law debate extends to debate over whether judges make or

discover law (a judge can argue that he discovered what wasnatural and hence discovered the law, as opposed to making it).

Unresolved: the conflict between narrow and broad scopes of

interpretation regarding what exactly constitutions, legal precedents,

and statutes have the power to imply.

Comparison to England in 19th century: natural law/rights ideas

entered into the everyday process of judicial interpretation in ways

that their English counterparts would have denounced as judicial

legislation

o Bentham and Austin: two English law theorists of the first half of

the 19th century. Positivists, said that common law would make

its way into legislation because of the parliamentary system.

o Blackstone: another English theorist. Bentham accused him of

evoking natural law concepts. Alexander Pope summed up his

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philosophy as: whatever is, is right.

Take home message: its important to consider the context in which

were talking about natural law and whether it is something that enters

legal arguments from the outside or as something which inherently

inspired laws on the books from the inside. There are a ton of

meanings that can be attached to it, and we shouldnt stereotype justone when we refer to natural law.

Powe The Warren Court

34-74

National Reactions to Brown

Both north and south believe courts mandate morally good outcomesaligned with Constitutionso However divergence on what morally good means

o To South, North and fed govt are aggressors Amicus brief asks court to see segregation in light of Cold

War/anticommunism. Soviet Union often pointed out US racial

discrimination, segregation became an international embarrassmento When Brown was decided, broadcast internationally immediately. NYT

calls it a "blow to communism." Eisenhower was pretty racist

Northern press lauds decision

NAACP gives "muted" reaction, given that outcome still depends onSouthern compliance

Southern Reaction Court hadnt ordered immediate deseg, so Southern reaction muted as

well

Many governors said they'd work with Court's decision Some politicians began staunch opposition GA and VA say they won't

comply

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Brown's Problem 2 goals in Brown

o declaring official gov-mandated segregation unconstitutional

o persuading southerners Court essentially challenged Southern way of life when challenging

segregationo Thus, Southerners obviously didn't want to comply

Other problems psychology involved SC judges are not

psychologists, nor does psychology have a place in lawo Lack of traditional legal sources. Plessy a huge precedent, so court

either had to prove Plessy wrong or say that things have changed Warren decided to go neither route

Instead, psychology and Footnote Eleven took point

Footnote Eleven Both "unnecessary" and "stupid:"

o Read like a sociology paper. Not much law in it.o Cited sociologists and economists (Myrdal's An American Dilemma, for

example) This was pretty much an insult to Southern lawyers

o Psychological tests Clark's doll study also flawed

No controls whatsoever Definitely reduced force/authority of opinion

Unanimity Was unanimity all that important? Mayb

e, because the South would have loved to see a dissent

A Changing Constitution Court stated it couldn't turn clock back to 1896, needed to take current

conditions into account Plessy a very clear ruling and big fundamental part of Southern

establishments/society

o As such, Southerners see Court as spitting on constitution and imposingwill instead of law

Still, no way Congress would have acted on segregation, so court "had"to

Harlan's Appointment

Lone dissenter in Plessy, symbolic appointment

Chap 3 Implementation

The debate on Remedy Brown didn't order anything specific Everyone assumed delay, even Marshall

o Marshall- "I don't believe any argument has been made to this Court to

postpone the enforcement of a constitutional right." Brown II decision (all deliberate speed) obviously meant more delay

General goal no violence and a reasonable time frameo Argument within SC Black/Douglas against Frankfurter/Jackson,

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pp. 165-71, 303-10, 317(Libel After Sullivan)-321

Southern states, especially Alabama, made life extremely hard for

NAACP members (mandated member lists, fired govt. employees who

were members, delayed cases in Court for a year, etc.)

NYT vs. Sullivan

o The ad: accused South of an unprecedented wave of terror

o NO state official was mentioned specifically, so it was hard to

decide who the plantiff against the Time was.

o Sullivan: the Montgomery police commissioner.

o Sullivan thought that if he was wrong, then 100 years of libel law

were wrong.

o Brennan: AL definition of civil libel is a form of regulation that

creates hazards to protected freedoms markedly greated than

those that attend reliance upon criminal law

o The press, having found a champion, made Sullivan into a race

case first and foremost, not a libel one.

o Courts at the time read the case narrowly. A question of what

actual malice means.

o Follow-up cases moved the focus from protecting the rights of

citizen critics to protecting the rights of the press at large.

Kluger - Simple Justicep105-106:

Introduces Charles H. Houston, one of the rare black students at Amherst

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College, who was elected to Phi Beta Kappa around 1915. Houston wenton to become a key figure in the legal fight for desegregation.

p123-137:

Howard University, an all-black university not much better than a highschool, was still the closest thing blacks had to their own university. In

1926, Mordecai Johnson, an ordained minister, came in as the first blackpresident and dramatically improved the quality of the university, most

importantly appointing Charles Houston dean of the law school in 1929.

Houston emphasized the quality of Howards law school, instead of the

quantity of degrees produced. The school closed its night school andbecame a full-time institution. He was especially tough on his students,

because he wanted to produce graduates who would carry on the fight for

civil rights their whole lives, and who would be successful in doing so.

Mordecai Johnson was defiant when Congress threatened to take away itsfunding for Howard due to student radicalism (Johnson had managed to get

huge increases in funding from Congress during his tenure), which boosted

spirits.

In 1922, the Garland Fund was established by a Harvard undergrad whogave his inheritance to support liberal and radical causes. The money

would be used to mount a legal challenge to segregation, though the initial

idea, to sue individual school districts, was scrapped because it wouldresult in endless litigation with little impact.

Houston asked a prominent lawyer, Nathan Margold, to devise a betterstrategy. Margold wrote a report in which he recommended the Fund

challenge segregation on the less-controversial idea that separate schoolswere not equal, and so were not meeting the standard set by Plessy. He

found that seven Southern states had no laws that schoolfunding/resources had to be provided on an equal basis, and so states

were dedicating much more to white schools.

The Margold Report became the bible of the NAACP legal drive. However,

even though it was conservative, the Supreme Court was very conservativein 1931, and the Depression also made a successful challenge unlikely, so

Houston held on to the Report without immediately acting on it. Heplanned to attack the most vulnerable target, graduate schools, first.

p185-194:

In 1934, a Baltimore fraternity decided to mount a challenge to theUniversity of Maryland, home to the only law school in the state, which did

not admit blacks. The alternative was for blacks to take a scholarship to

attend a law school in another state, but money for these scholarships had

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never been allocated.

Donald Murray, a highly qualified black applicant, was denied admission

based on his race, so the case became Murray v. Maryland.

Though Houston and Thurgood Marshall (a graduate of Howard, member ofthe faculty, and ally of Houstons) wanted to wait for their first suit, the

lawyer in Baltimore (Belford Lawson) kept pressing, so Marshall andHouston took over the case.

Thanks to a sympathetic judge and superior trial strategy, Marshall andHouston won the case in the local court. The Maryland Court of Appeals

upheld the decision in 1936.

201-218

o case "Missouri ex rel. Gaines v. Canada" - Gaines was denied admission

into law program of University of Missouri. The case was led byHouston, who retired by the time it reached the Supreme Court in

1938.

o in 1930's, the court kept had unfavorable stance towards regulatory

legislature. In 1935 it struck down the Railroad Retirement Act,

National Recovery Administration, Agricultural Adjustment Act andother New Deal measures. In 1936 it struck down women's minimum

wage legislation in New York.

o winning the election in 1936 on this issue, Roosevelt planned the

judiciary-reorganization bill (court-packing plan), but it wasn't

implemented thanks to Roberts's switcho Black was first Roosevelt's appointee, after Van Devanter took

advantage of the new retirement plan, few months later Reed replacedSutherland.

o Cardozo died, but Roosevelt was reluctant to replace him with

Frankfurter while Brandeis was still in court, so in 1938 Missouri ex rel.Gaines v. Canada was decided by only eight justices. Agreeing 6:2, the

Court ruled against discrimination and ordered the university to admitGaines.

o Thurgood Marshall fought for equal wage in Maryland in between 1935

and 1938, then in 1939 he won a case which ordered state-wide wageequalization. This was followed by a teacher wage equalization victory

in Virginia in "Alston" case.

o Roosevelt more compassion than previous presidents, even though he

was unwilling to completely break ties with Southern Congressmen. In

1941 he issued an executive order against unfair hiring practices, which

was later followed by establishment of Fair Employment PracticesCommittee.

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238-271

question of how much should the Court rely on democratic majority.

Holmes's liberalism - unless outlandish, law doesn't need to bescrutinized. Stone's footnote in Carolene Products - scrutiny more

important if legislation might collide with the Amendments. Jones v.

Opelika - Jehovah's Witnesses literature taxed, Court upheld it, Stonedissented.

Burton - Truman's first appointee, followed by Vinson replacing Stone.

after war intensification of NAACP efforts to equalize public housing(Federal Housing Administration stuck to Plessy), they filed Shelley v.

Kraemer

Truman had more progressive views than former presidents, so thegovernment filed an amicus brief to support NAACP in Shelley v.

Kraemer. The Supreme Court decided 6:0 (three judges had conflict of

interest) in favor of Shelley.

In 1948, Truman followed with executive orders desegregating armed

forces and ending discrimination in government employment In 1944, Gunnar Myrdal published "An American Dilemma" analyzing

the race question, denouncing the US and showing that African-

Americans were educationally disadvantaged.

1948 - Thurgood Marshall argues Sipuel v. Oklahoma State Board ofRegents before the Supreme Court, winning her an admission to the

only Oklahoma's law school. As a response, the university overnight

started a new law institution for blacks and enrolled her there, and theCourt failed to strike this down.

1950 - both Sweatt v Painter (Sweatt was admitted into a non-white

section of law school with inferior resources) and McLaurin v OklahomaState Regents for Higher Education (McLaurin admitted into graduate

study on segregated basis), reach the Supreme Court, presented onthe same day.

At that time, libertarian activist judges Murphy and Rutledge were

already replaced by Clark and Minton, rather unspectacular judges.

Truman also appointed William Hastie to the US Court of Appeals for

3rd circuit, the highest judicial position held by an African-American

until then.

p. 388-396, p. 469-480, pg. 507-513

Interesting story about events leading up to Brown v. Board-- struggle tointegrate Topeka, which was met with forceful resistance. There's a

narrative about Elisha Scott, a white woman who fought for integrationafter seeing the poor condition of the black schools (through her black

maid). She began encountering opposition, which furthered her cause.

Interesting story about McKinly Burnett, head of the Topeka NAACPduring this time. A lot of interesting details, but I think this is just to

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drive home the facts that resistance was forceful and immediate, andthat both whites and some blacks resisted the idea of desegregation,

initially. Suggests that blacks in town were hoping for employment,

decent education, financing a car, house, going to church and fearedthat "any show of militancy on the civil-rights front would compound

the problem." Oliver Brown, plaintiff in Brown was not such arevolutionary figure, but he "wanted to be a whole man."

I don't know how important this will end up being. A student walkout and

strike at Moton High School, lawyers told students the only way NAACPwould get involved is if they wanted to sue for end of segregation.

This happened in federal court in Richmond. Davis v. County School

Board of Prince Edward Country. More than half a year passed beforeit came to trial.

"Separate schools for Negroes carried with them a legacy of social

untouchability and psychological inferiority, and so their presence in acommunity held the promise of yet another generation of second-class

citizenship. Washington, however, had been obliged by its status as

the federal city to serve its black schoolchildren more justly than therest of the sovereign South."

"The black schools in the capital were more nearly equal to the white schools

than any of the segregating states, but they were scarcely places of

learning."p. 519 line 4-p.542

This section of Simple Justice takes us through the steps leading up tothe appeal of Brown, Briggs, Davis, Bolling and the Delaware case

that were ultimately set for argument together on December 9, 1952.

We are also introduced to a few of the major players during thedesegregation movement, James Nabrit and John Davis.

James Nabrit was a black man that grew up in Georgia and at a very

young age witnessed the violent murder of Jack Johnson, the black

heavyweight boxer who had defeated Jim Jeffries "The Great WhiteHope." This moment would define Nabrit's life, he would decide to

become a lawyer at a time when there were only two black lawyers inGeorgia and would devote his life to fighting desegregation as a

member of the NAACP Legal Defense and Education Fund.

John Davis viewed women's suffrage, child labor laws, and federalanti-lynching laws as "meddlesome mischief put forward by egalitarian

reformers." He grew up in a small town in West Virginia and was theson of a pro-slavery, Jeffersonian Democratic lawyer. Davis became

an extremely talented lawyer and was eventually named SolicitorGeneral by Woodrow Wilson. He would eventually run for president in

1924 to no avail. Davis became the chief counsel for the Jim Crow

south and would test the NAACP's legal corps.

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One of the main takeaways from this section is the different

approaches of those leading the desegregation movement. Nabrit wasan advocate for an aggressive approach, he did not want to wait for

the courts to be "ready" and pushed for taking on the south head on.Others, like Thurgood Marshall were fighting for desegregation but also

within the doctrine of separate but equal as decided in Plessy. There

were also those that felt they should wait for the courts, and to givethem a way out of overturning Plessy so that as many progressions in

the desegregation movement could made, no matter how small.

p.629 line 24-p.645 line 22,

Both sides of Brown went to work studying the history behind the

Reconstruction amendments (especially the work of the Joint

Committee of Fifteen9 Representatives, 6 Senatorsthat shaped

most of the Recon. Legislation)

In the shaping of legislation in 1866:

o A no discrimination clause passed the Senate but was cut in

the House in the Civil Rights Bill of 1866. Practically all states

had some sort of discriminatory laws, and it would have

prohibited them.

o The language of the 14th Amendment was much more broad than

that of the Civil Rights Bill, suggesting that the framers intended

it to go beyond the CRB in application down the road. Phrases

like due process and equal protection.

Public education in the South

o Deep financial troubles in the South in late 19th century no big

rush to build public school system.

o Elsewhere in the country, it was only just a seedling of an idea

when 14th amendment was written.

W.R. Ming, consultant to Thurgood Marshall, suggested that the

NAACP ignore the troubling facts of the Civil Rights Bill (especially an

assertion that the bill would not affect separate schools by the Houseleader) and instead argue the case based on pricipales of

humanitarianism, racial equialitarianism, etc.)a broad approach.

p.648 line 25-p.658 line 24,

14th Amendment itself was intended to prohibit all forms of state-

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imposed racial discrimination.

Argument of the segregationists: 14th Amendment had simply been a

way to enforce CRB, and CRB had NOT prohibited school segregation

or even discrimination, so neither had the 14th Amendment.

US finally issued a brief, too, even though Eisenhower was reluctant to

have the segregation issue be resolved in the Courts.

The US Brief: essentially agreed with NAACP (nothing in the 14th about

education, cant reach conclusions about the intentions re:

segregation)

Frankfurters assistant, Alexander Bickel, took a year to write a report

on the intentions of the 14ths framers, which concluded that the 14th

neither allowed segregation nor prohibited it, but also that it did not

prohibit future generation from acting on the issue.

p.662 line 17-p.702,

Earl Warrens appointment:

Zero pre-SC time on the bench, but an impeccable character that

Americans respected

Pre-SC clues about Brown decision: Warren I am for a sweeping civil

rights program

The argument of Brown v. BoE:

o NAACP

Broad 14th amendment

Spottswood Robinson gave a stellar performance, Marshall

not so much.

o Davis (defending Plessy): 14th said nothing about segregation,

had no jurisdiction over it, couldnt prohibit it.

Warren on the deciding process: little doubt about how it should go,

thought Plessy had been eroding for years, argued for a living

Constitution.

Some thought that the only way segregation could be declared

unconstitutional would be if they adopted the idea of a living

Constitution that varies from age to age (Jackson)

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Rumors that Frankfurter drafted a dissent, but didnt end up voting

with it.

Reed, the last to go, was worried that a sudden dismantling of

segregation would do more harm than good, was finally convinced

when Warren agreed that it would be gradual.

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