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A Storm over This Court

A Storm over This Court: Law, Politics, and Supreme Court Decision Making in Brown v. Board of Education

Jeffrey D. Hockett
Copyright Date: 2013
Pages: 280
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  • Book Info
    A Storm over This Court
    Book Description:

    On the way to offering a new analysis of the basis of the Supreme Court's iconic decision inBrown v. Board of Education,Jeffrey Hockett critiques an array of theories that have arisen to explain it and Supreme Court decision making generally. Drawing upon justices' books, articles, correspondence, memoranda, and draft opinions,A Storm over This Courtdemonstrates that the puzzle ofBrown's basis cannot be explained by any one theory.

    Borrowing insights from numerous approaches to analyzing Supreme Court decision making, this study reveals the inaccuracy of the popular perception that most of the justices merely acted upon a shared, liberal preference for an egalitarian society when they held that racial segregation in public education violates the equal protection clause of the Fourteenth Amendment. A majority of the justices were motivated, instead, by institutional considerations, including a recognition of the need to present a united front in such a controversial case, a sense that the Court had a significant role to play in international affairs during the Cold War, and a belief that the Court had an important mission to counter racial injustice in American politics.

    A Storm over This Courtdemonstrates that the infusion of justices' personal policy preferences into the abstract language of the Constitution is not the only alternative to an originalist approach to constitutional interpretation. Ultimately, Hockett concludes that the justices' decisions in Brown resist any single, elegant explanation. To fully explain this watershed decision-and, by implication, others-it is necessary to employ a range of approaches dictated by the case in question.

    eISBN: 978-0-8139-3375-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-xii)
  4. Introduction
    (pp. 1-14)

    On May 17, 1954, the U.S. Supreme Court ruled unanimously inBrown v. Board of Education of Topeka, Kansas—the lead case in a group of four consolidated state cases—that racial segregation in public schools violated the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.¹ The Court maintained that the separate-but-equal principle enunciated at the end of the nineteenth century inPlessy v. Fergusonwas a contradiction in terms as applied to education.² Justice Hugo Black’s admonition to his brethren during the Court’s deliberations inBrown—that rash action regarding enforcement would bring a “storm over...

  5. ONE Barriers to Desegregation
    (pp. 15-35)

    One of the impediments the LDF faced in its litigation campaign against school segregation was that seven of the nine justices who ultimately decided that issue had been active in the Democratic party before joining the Court. As strong proponents of the New Deal—and, therefore, strong critics of the anti–New Deal decisions that the Supreme Court rendered in the 1930s—these justices were sensitive to the charge that they had usurped the legislative function.¹ The accusation of judicial policy making appeared to be particularly applicable inBrown, since all of the petitioners’ claims, whether related to traditional legal...

  6. TWO The Attitudes of the Justices
    (pp. 36-58)

    Since the 1960s, most political scientists in the field of judicial studies, and some law professors, have accepted a strongly instrumental, or attitudinal, understanding of Supreme Court decision making. Recent scholarship lends credence to the attitudinal model—and to a strongly instrumental interpretation ofBrown—by demonstrating that the desegregation decision was consistent with the liberalization of American racial attitudes that occurred in the middle of the twentieth century. Yet aggregate data regarding the social and political context in which the Court renderedBrowncannot provide definitive conclusions about the behavior of individual justices. While some information gives the impression...

  7. THREE Law, Anticipated Violence, and Loyalty to the Court
    (pp. 59-91)

    The strategic model of Supreme Court decision making, which scholars developed in response to perceived deficiencies in the attitudinal model, posits that justices, while primarily seekers of policy, are constrained in the pursuit of that objective by both internal and external factors. The notes of the conference deliberations inBrowndo much to illustrate the point, contrary to the assumptions of attitudinalists, that the institutional context in which the justices operate does not necessarily free them to pursue their sincere policy preferences. Even assuming that the legal considerations to which many of the justices referred were too unconvincing to explain...

  8. FOUR A Sense of the Court’s Mission
    (pp. 92-126)

    In sharp contrast to instrumental models of judging, which emphasize the significance of personal policy preferences in Supreme Court decision making, the constitutive variant of the new institutionalism posits that justices are socialized to consider cues for normatively appropriate judicial behavior from relevant legal actors and institutions. The petitioners’ legal argument inBrown—that under the Fifth and Fourteenth Amendments the Court’s role or mission in racial discrimination cases is to afford considerable protection to minorities, rather than to defer to the decisions of legislators—was an example of such a cue. Documentary evidence reveals that Chief Justice Earl Warren...

  9. FIVE The Relevance of Foreign Affairs
    (pp. 127-147)

    The sensitive nature of the issue litigated inBrownsuggests that the petitioners’ argument regarding the link between school segregation and white supremacy was not the only powerful desegregation message the Court considered. Individuals who champion a “political regimes” model of Supreme Court decision making—an approach that combines a noninstrumental sensibility with the understanding that the Court is one point in a pattern of institutional relationships that constitute a political regime—provide reason to believe the justices also looked to the executive branch for cues regarding normatively appropriate judicial behavior inBrown. This perspective is reflected in recent scholarship...

  10. SIX Domestic Political Considerations
    (pp. 148-177)

    The relevance of the domestic policy concerns of the executive to theBrowndecision cannot simply be traced to the statements of either of the administrations that participated asamicus curiae. The Eisenhower administration sent the Court anything but a clear message regarding its position on desegregation, and the Truman administration’s support for civil rights must be reconciled with the fact that, like African Americans, southern conservatives were an important element of the New Deal coalition. “Political regimes” scholarship, which portraysBrownas a logical consequence of Franklin Roosevelt’s attempt to use civil rights to remove the impediment that southern...

  11. Conclusion
    (pp. 178-196)

    In his discussion of the relevance of the new institutionalism to the field of public law, Rogers M. Smith leavens his defense of a constitutive understanding of Supreme Court decision making with an acknowledgement of the contributions of alternative methodologies. While he maintains that defenders of instrumental accounts of decision making “should agree that the impact of structures of ideas forms a part of their enterprise,” he also insists that scholars who favor noninstrumental explanations must, where possible, respect demands for empirical rigor by becoming “more aware of the need to connect their claims with measured patterns in actual decision...

  12. NOTES
    (pp. 197-234)
    (pp. 235-250)
  14. INDEX
    (pp. 251-268)
  15. Back Matter
    (pp. 269-270)