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Excerpted From: Ronald Turner, Was Brown v. Board of Education Correctly Decided?, 79 Maryland Law Review Online 41 (2020) (131 Footnotes) (Full Document)


RonaldTurnerFor decades now, judicial nominees, including those for seats on the Supreme Court of the United States, have been asked and have answered questions about the correctness of Brown v. Board of Education, the Supreme Court's landmark 1954 decision, and its “unshakable precedent” holding that state laws prohibiting black schoolchildren from attending public school with white students violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

In recent judicial nominee confirmation hearings before the United States Senate Committee on the Judiciary, Senator Richard Blumenthal, a Democrat from Connecticut, has posed the Brown question to President Donald J. Trump's nominees for lower federal court judgeships. Unlike judicial nominees in previous administrations, a number of President Trump's nominees for lifetime appointment to the federal bench have refused to answer the Brown query. For example, federal district court nominee Wendy Vitter responded: “I don't mean to be coy, but I think I can get into a difficult, difficult area when I start commenting on Supreme Court decisions--which are correctly decided and which I may disagree with.” Andrew Oldham, nominated for a seat on the United States Court of Appeals for the Fifth Circuit, did not answer the question, citing “the so-called 'Ginsburg Rule[s]”’ as support for his reply that “even the most universally accepted Supreme Court case is outside the bounds of a federal judge to comment on.” Neomi Rao, nominated for the United States Court of Appeals for the District of Columbia Circuit seat formerly occupied by Justice Brett M. Kavanaugh, said “Brown is a really important precedent of the Supreme Court, and one that overturned Plessy v. Ferguson, which you know was a real black mark on our history.” She refused to go further, however, stating that it was “'not appropriate’ to comment on the 'correctness of particular precedents.”’

Asked if Brown was correctly decided, Ada Brown, now a federal district judge in Dallas, Texas, replied that “Brown [was] a landmark case” and that,

because of [Brown], I went to an excellent integrated school [while] my father went to a very poor segregated school. That being said, I think it would be violative of Canon 3A(6) for me to give a thumbs-up or a thumbs-down as to whether or not the Supreme Court correctly decided the case.

And the United States Court of Appeals for the Second Circuit nominee, Michael H. Park, stated in his responses to senators' questions for the record that “Brown is a landmark decision of the Supreme Court and is binding precedent on all lower courts” and that he “would faithfully follow it. Beyond that, it would be inappropriate to opine on whether Brown, or any other decision of the Supreme Court that I would be bound to follow, was correctly decided.” As support for this position, Park quoted Justice Elena Kagan's Supreme Court confirmation hearing statement that “it would not be appropriate for me to talk about what I think about past cases, you know, to grade cases.” In fact, during her confirmation hearing, Senator Ben Cardin, a Democrat from Maryland, asked Justice Kagan if she believed that Brown was relevant today. She responded, “I hope and I know that Brown v. Board of Education and the principles that [Brown] set forth are still relevant today[,] and they're the principles that the Equal Protection Clause has set forth.” The foregoing refusals to answer the Brown question did not derail the nominations, as the Senate confirmed Vitter, Oldham, Rao, Park, and Brown.

What explains this refusal to say that Brown was correctly decided? One theory posits that “nominees d[id] not want to open the door to a discussion of what they think of other Supreme Court precedents,” such as the Court's reproductive rights and campaign speech decisions. Keeping that door “closed likely makes it easier ... to get confirmed.” Senator John Cornyn, a Republican from Texas, suggests that expressing a view on the correctness of Brown presents “ethical and practical challenges” for nominees who would find themselves on a slippery slope. “You can be asked about a [sixty-five]-year-old decision, which we celebrate here after all of these years as an important landmark in our guarantee of equal justice under the law. But you can also be asked about a decision of the Supreme Court last week.”

Other reasons have been proffered for the judicial nominees' refusal to respond to the Brown question. For writer, Dahlia Lithwick, the failure to respond, “has nothing to do with whether Brown is still good precedent.” Rather,

[w]hat changed is that judicial nominees are carving a path toward saying that they needn't be bound by any precedent, and also that every precedent is now on the table. When judicial nominees say, as they now regularly do, that Brown is a precedent of the [C]ourt, what they are really saying is that a case that was decided was decided, and that it's the law until it's reversed. That is a truism--it is a description of what is. It is also a departure from a standard that existed until quite recently.

Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Education Fund, has observed that:

[t]he ugly truth is that declining to offer approval of Brown signals a willingness to question the project of democracy that Brown created--one in which African Americans and other marginalized groups compelled the federal courts to honor the spirit of equal justice embodied in the words of the 14 Amendment. This is not “just deeply troubling; it's also downright dangerous. Once positioned near the center of the canon of Supreme Court jurisprudence, it's hard not to conclude that a move is afoot to move Brown to the margins.”

When Senator Tim Scott, a Republican from South Carolina, expressed his frustration with the nominees' refusals to answer the Brown query, the Department of Justice reportedly informed nominees that continued refusals to respond could result in opposition to their confirmations. Thereafter, nominees testifying at a May 22, 2019, Judiciary Committee hearing answered “yes” to the Brown question, and other nominees who had previously refused to answer the question in their hearings communicated their belief that Brown was correctly decided to the Judiciary Committee or to their home state senators. The don't-open-the-door and judicial canon justifications for not answering thus quickly gave way to affirmative responses following a Republican senator's criticism, revealing that the initial refusal to answer was at least in part a tactical move designed to allow the nominee to avoid answering the Brown question without raising concern among the Republican senators that could complicate the prospects of confirmation.

I agree with Sherrilyn Ifill's aforementioned observation regarding the “ugly truth” evidenced by the nominees' unwillingness to simply state that Brown was correctly decided (assuming that that is their view), a reluctance that decenters Brown from its place in the Supreme Court's canon and appears to be part of an effort to move the decision to the margin of the Court's jurisprudence. This Article presents and considers a related issue. Nominees who do not answer the Brown question can insulate themselves from a different question, such as the one posed by Chief Justice John G. Roberts Jr. in Parents Involved in Community Schools v. Seattle School District No. 1. In that case, a deeply divided Court held that race-sensitive student assignment plans voluntarily adopted by school boards in Seattle, Washington, and Louisville, Kentucky, violated the Equal Protection Clause. In the closing pages of his plurality opinion, the Chief Justice, joined by three other Justices, considered what he termed “the heritage of Brown” and argued that the Equal Protection Clause presumptively forbids the consideration of race where racial segregation is not mandated by the state but is instead “notionally attributable to the decisions of private individuals or institutions.” As that position was not adopted by a majority of the Parents Involved Court, the issue of Brown's heritage has not been definitively resolved.

This Article proceeds as follows.

A prefatory Part I will discuss Brown.

Part II will then turn to Parents Involved and the Justices' debate over Brown's heritage.

Part III will return to the nominees' refusal to answer the was-Brown-correctly-decided question and will acknowledge that a nominee who declines to do so will undoubtedly not respond to heritage-of-Brown inquiries that could shed informative light on the nominees' views on and interpretive approaches to the resolution of cases alleging that certain race-sensitive governmental actions violate the Equal Protection Clause. Yet, unanswered questions on these important subjects can still have value for those deciding whether to support or oppose a nominee's confirmation.

[. . .]

As previously discussed, President Trump's judicial nominees' recent refusals to answer the question of whether Brown was correctly decided is an interesting and important phenomenon warranting our attention. Among the justifications offered for that refusal is the slippery slope concern that expressing a view on the correctness of Brown would open the door to questions about other Court decisions. Additionally, some nominees who initially refused to answer the Brown question ultimately only answered after a Republican senator expressed his frustration with their non-responsiveness.

This Article has offered an additional and important reason: the possibility of follow-up questions, not just about other Supreme Court decisions, but about the nominee's views on Brown's heritage and what those views may suggest or reveal regarding the nominee's jurisprudential commitments. And a nominee's favorable confirmation hearing comments about Brown do not mean that a potential judge would not today agree with the Parents Involved plurality's no-consideration-of-race interpretation of the Equal Protection Clause. Supreme Court nominees Roberts, Thomas, and Alito spoke approvingly of Brown but joined the plurality opinion.

Given Parents Involved's unresolved debate about Brown's heritage (and therefore future) and recent changes in the Court's composition, the views of lower court nominees who may decide future cases addressing these and other race-sensitive issues, decisions that may come before the Court for review, are of obvious importance. Nominees who refuse to answer whether Brown was correctly decided will undoubtedly refuse to respond to heritage-of-Brown and other Brown-related questions, especially where doing so does not derail their confirmations. Nevertheless, posing queries that go unanswered can still be of value to inquiring senators and the public who may consider that disinclination as evidence of an effort to marginalize Brown and therefore a reason to oppose a nominee's confirmation.

A.A. White Professor of Law, University of Houston Law Center. J.D., University of Pennsylvania Law School; B.A., Wilberforce University.

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