Today in Supreme Court History: May 17, 1954

5/17/1954: Brown v. Board of Education and Bolling v. Sharpe are decided.

 

Comments

[Dan Schiavetta]

Brown v. Board of Education of Topeka, 347 U.S. 483 (decided May 17, 1954): “separate is inherently unequal”, invalidating on Equal Protection grounds school segregation by race (this applies only to schools within the same district, of course, and could not invalidate “white flight” into other districts or into private schools); unanimous decision, though it was almost 8 – 1 because Jackson’s law clerk (William Rehnquist) was telling him to vote the other way (as my Con Law professor pointed out, the Court was making a “policy” decision; this was one of three consolidated cases and the Court could have agreed with the Delaware court holding that separate being equal should be decided case-by-case)

Bolling v. Sharpe, 347 U.S. 497 (decided May 17, 1954): same holding as Brown, but as to segregation in D.C., where the Fourteenth Amendment (and its Equal Protection clause) doesn’t apply; segregation wrong on Due Process grounds (Fifth Amendment) (why did they need Equal Protection to decide Brown? all they needed was Due Process for that case too)

Saenz v. California Dept. of Social Services, 526 U.S. 489 (decided May 17, 1999): limitation of welfare benefits to newly arrived residents to the amounts they would have received in prior state infringed on freedom of travel (though such right is not mentioned in Constitution)

Caniglia v. Strom, 593 U.S. 194 (decided May 17, 2021): police needed warrant to conduct a weapons search of a house to which wife called them as to conversation on porch with husband who wanted to shoot himself (police brought him away for psychiatric evaluation after promising they would not confiscate his guns; he then brought this §1983 action arising out of the confiscation) (Caniglia died in 2023 at age 72 of natural causes)

CIC Services v. IRS, 593 U.S. 209 (decided May 17, 2021): Anti-Injunction Act (which prohibits “stay” applications to avoid paying a tax) did not bar taxpayer’s pre-enforcement challenge to new reporting requirements for consultants of “captive insurers” (which are sometimes used for tax avoidance) because IRS did not follow “notice and comment” rulemaking procedures required by Administrative Procedure Act

BP v. Mayor and City Council of Baltimore, 593 U.S. 230 (decided May 17, 2021): on appeal of order remanding removed case to state court (suit was by city against oil companies for concealing environmental impact of fossil fuels), court can review all grounds argued by defendant for removal in opposition to motion to remand, not just the one (involvement of federal officer) that made the order appealable (28 U.S.C. §1442)

McNeil v. United States, 508 U.S. 106 (decided May 17, 1993): Federal Tort Claims action (exposure to AIDS while in prison) dismissed as premature (even though all that happened was initial pleadings) until administrative remedies are exhausted, no matter how long they take to process, and even though claimant was pro se

Graham v. Florida, 560 U.S. 48 (decided May 17, 2010): life sentence without parole for a juvenile for non-homicide (attempted armed robbery) is “cruel and unusual punishment” in violation of Eighth Amendment

Abbott v. Abbott, 560 U.S. 1 (decided May 17, 2010): Chilean court’s “ne exeat” order (prohibiting leaving jurisdiction without consent) issued to non-custodial father created “right of custody” under the Hague Convention; United States court therefore had power to order mother to bring child back to Chile; law of “sister signatory” (Chile) entitled to great weight in construing the Convention

Organization for a Better Austin v. Keefe, 402 U.S. 415 (decided May 17, 1971): injunction barring leafletting warning against local “blockbuster” (realtor who scared white homeowners that blacks were moving in, convinced them to sell at below market value, then resold at above market to blacks) was in violation of First Amendment

[The Margrave of Azilia]

The Brown decision was a logical outgrowth of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) – after deciding to get serious about the equal in separate but equal, the court kept finding that actually-existing segregation flunked the equality test. Finally the court gave up on allowing separate schools on the assumption of a separate equality – a contradiction in terms.

As for Bolling v. Sharpe, I’d like to see the rationale for applying equal protection to the feds under the Constitution, but the enactors of the 14th Amendment made a fairly clear decision to apply equal protection to the states only, not the feds.

[Dilan Esper]

FWIW Justice Thomas says you could do it under the Citizenship Clause.

But I think that's just him being results oriented. Indeed, Bolling is really about the necessity of not being an originalist or textualist sometimes. It would have been absurd for DC schools to remain segregated after Brown. It would have been a national embarrassment, on the level of imagine if the country had banned slavery in the 19th Century everywhere but in DC. So they had to strike it down; the reasoning used is unimportant.

[Bob from Ohio]

SCOTUS banging the table because they couldn't really argue law.

Fact of the matter is the Constitution as written did not ban segregation in DC. Citizenship Clause is even worse textually than Due Process, DC residents are just not residents of a state.

As you say, no real choice but to mangle DP enough to do the job that needed to be done.

[Syd Henderson]

Equal protection made it a stronger argument against state-enforced segregation. Having due process works, too, but doesn't seem as strong when you apply it to the states.

[Dan Schiavetta]

Thanks.

I can almost understand people like Thomas saying Bolling was wrongly decided, that Due Process doesn’t stretch that far. But to allow segregation on federal property, while saying the federal Constitution won’t allow states to do it, would be ridiculous.

Similarly the Court later allowed federal agents to be sued for federal law violations (Bivens) even though there is no federal law analog to s. 1983.

[ReaderY]

It may be wrong, but I wouldn’t call it rediculous. The 14th Amendment’s framers intended specifically to impose limitations on states. Presumably they trusted the federal government to act appropriately and wanted to leave it a free hand.

I have been more sympathetic to things like federal affirmative action then most folks on this blog in part because I don’t think the Due Process Clause should be interpreted as exactly the same as the Equal Protection Clause. One reason is, as you said, that otherwise the Equal Protection Clause would be surplussage. But another reason is that the Framers of the 14th Amendment wanted to leave the federal government more flexibility to address race issues than it gave the states.

For this reason, I don’t think the 5th Amendment imposes strict equal protection on the federal government. I think it allows some affirmative action, things like afro-centric curricula, some race-specific programs, etc., as long as there is no caste system being sustained or other extremely unequal outcomes like under the Separate but Equal regime.

I see no basis for the strictly moralistic way the current Court has approached things - any difference in racial treatment is subject to essentially unovercomable strict scrutiny - on grounds that racial differences are themselves inherently wrong. I think the Framers permitted the federal government to take more pragmatic approaches than that.

Note: Justice White promulgated this view, which briefly served as a swing view and became the opinion of the court majority during a transitional period between more liberal (affirmative action is generally good) and more conservative (affirmative action is generally bad) majorities. In Justice White’s view, affirmative action is prohibited to the states but permitted to the Federal Government because the Due Process clause requires less to satisfy it than Equal protection.

[Dan Schiavetta]

Thanks. Interesting analysis.

[Martinned2]

But another reason is that the Framers of the 14th Amendment wanted to leave the federal government more flexibility to address race issues than it gave the states.

I think the only truly honest way to put that is to say that the Framers of the 14th Amendment wanted to leave both the states and the federal government free to do a lot of racism. Given the sorts of racism that no one thought were problematic back in the 1860s, it's difficult to see why an originalist could have an objection against affirmative action.

I will say then that I am not, nor ever have been in favor of bringing about in any way the social and political equality of the white and black races—that I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people; and I will say in addition to this that there is a physical difference between the white and black races which I believe will for ever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race.

[Dan Schiavetta]

You’re correct as to the intentions of the framers of the 14A, but that quote from Lincoln was “situational” — it was made in 1858 when he was running for U.S. Senate. He was countering Stephen Douglas’s charge that Lincoln advocated “living, eating and sleeping with Negroes”.

As Garry Wills put it, “Lincoln knew that no one could be elected in or from the State of Illinois if he advocated equality of the races.” What Lincoln's personal attitude was by 1865, I don't think we know.

[Martinned2]

Yes, and that seems like pretty good evidence of the public understanding of the 14th amendment in the state of Illinois when it ratified that amendment. (Not conclusive evidence, of course, but one piece among many, with the actual debates in the state legislature taking the first rank.)

[Dan Schiavetta]

Like I say, you're correct. Not only as to the framers but as to the voters.

In Plessy, Harlan's dissent as to "separate but equal" included a statement that he thought the white race would always dominate. My Con Law professor viewed that as evidence of racism, but some of us in his class thought Harlan was just trying to blunt the edge of his shocking opinion. The public (at least the white public), even in the North, was even in 1896 strongly pro-segregationist.

[Brett Bellmore]

If you were playing up to whites back then, "Look, we have absolutely nothing to fear from a level playing field. You KNOW we're always going to be on top because we're just better." was probably a pretty good argument. A lot of the abolitionists thought the same way. Moral and legal equality? Sure! Factual equality? They thought that was a joke.

[JoeFromtheBronx]

Justice Souter in his Harvard address notes the different levels of discretion understood as appropriate when slavery was a recent memory. Another useful data point is the primitive nature of public education in the 19th Century though even then many people thought it was very important. Brown talks about this too.

An honest accounting -- as shown by Robert Jackson's unpublished concurrence -- is that constitutional understanding of text develops over time as society's experiences change. A genius of the Constitution that there is an opening for such development.

[Martinned2]

A genius of the Constitution that there is an opening for such development.

Out of curiosity, where is that opening?

[Dan Schiavetta]

"constitutional understanding of text develops over time as society’s experiences change"

The current Court disagrees with that idea by a vote of 5 - 4 and sometimes 6 - 3.

[JoeFromtheBronx]

The recent Supreme Court case discussed on this blog suggests even Kavanaugh and Barrett are not strict originalists.

They would accept that 1868 understanding of race is not the test. They won’t have to merely accept unlikely originalist history on what the framers meant.

Alito is a Calvinball originalist. Only Thomas and Gorsuch, and I’m not sure even Gorsuch is an absolutist on the point, really would honestly be.

[JoeFromtheBronx]

The anniversary post discusses two opinions that applied a different understanding than in the late 19th Century.

The Roberts Court provides different understandings than past courts in multiple cases.

Other governmental bodies and society at large can also apply new understandings to constitutional text. And do so.

[Martinned2]

As a practical matter they can do so, sure. But my question was: Where does it say in the Constitution that it is OK to change the interpretation based on "society’s experiences"?

[JoeFromtheBronx]

Where does it say it can not?

The text of the Equal Protection Clause concerns equal protection. What that entails will be a matter of societal experiences, changing knowledge, and so forth over time.

The Constitution is applied by the current generation using current knowledge & the wisdom gained up to that point. The original Framers, for instance, learned on the job.

Their understanding of how the document would work depended on living it. A constitution provides a basic framework that leaves a lot of flexibility except when it is strictly worded such as how many senators there are.

[bernard11]

The 14th Amendment’s framers intended specifically to impose limitations on states. Presumably they trusted the federal government to act appropriately and wanted to leave it a free hand.

Some might have argued that allowing segregation in DC was OK because it could be, in principle (stretched very thin) eliminated if there were a national anti-segregation consensus. States, OTOH, are governed locally, so such a consensus would have no necessary effect on its behavior through normal political means.

All theory, of course. The more practical, common-sense approach actually used makes more sense to me.

[David Nieporent]

Similarly the Court later allowed federal agents to be sued for federal law violations (Bivens) even though there is no federal law analog to s. 1983.

And ever since then they have regretted it, and done everything they can to limit Bivens to its facts, to the point now where only plaintiffs actually named Bivens can successfully bring such a claim.

[Martinned2]

That's where it all went wrong. You have stare decisis or you don't. In Britain I can see how the House of Lords had to back away from stare decisis in 1966, but in the US there's no excuse for not leaving the power over constitutional amendments where it belongs: With Congress and the States.

[David Nieporent]

"Stare decisis is not an inexorable command."

[JoeFromtheBronx]

Judges aren't gods. They make mistakes.

If Plessy was wrongly decided, there was no "amendment." The same provision was now (rightly) being applied.

Anyway, stare decisis doesn't mean a precedent is never altered or overruled. That isn't how it ever worked.

The application of law develops over time. Again, the same constitutional provision is being applied.

For those who care, the people who wrote, passed and ratified the provisions were aware of how these things worked. It is an implied aspect of the constitutional provisions in place.

[SMP0328]

Graham v. Florida, 560 U.S. 48 (decided May 17, 2010): life sentence without parole for a juvenile for non-homicide (attempted armed robbery) is “cruel and unusual punishment” in violation of Eighth Amendment

One of many cases that I believe would be overruled if the current SCOTUS was given a chance.

[John F. Carr]

With six votes being predictable you need all of Gorsuch, Kavanaugh, and Barrett to vote for life without parole. Do you think all of them will?

Predictable: Roberts concurred in Graham. Alito and Thomas dissented. The three liberals will vote against life without parole.

[SMP0328]

With six votes being predictable you need all of Gorsuch, Kavanaugh, and Barrett to vote for life without parole. Do you think all of them will?

Replace "for life without parole" with "that abortion is not a Constitutional right" and you have what happened in Dobbs. They were willing to overrule Roe v. Wade, but Graham v. Florida would be a bridge too far?

[Krayt]

Is half the nation clamoring for life without parole for teen thieves? Does half the nation think this was wrongly decided?

Maybe?

[SMP0328]

Most people, maybe the vast majority, want their respective State and local governments to get tough on crime. Those people would support overruling Graham v. Florida if they knew of the decision.

[Bob from Ohio]

"if they knew of the decision"

But they do not. Nor will they ever.

Its about 525 on my list of things needing reversal.

Relax, we will continue letting such criminals out until they murder someone or get murdered.

[JoeFromtheBronx]

Bolling v. Sharpe (reasonably) noted:

"The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process."

Congress represents the nation as a whole. It has checks and balances against malicious discrimination not provided by the local governments. James Madison expressed the value of national legislature to guard against local factions.

So, it is reasonable that Congress has somewhat more discretion. The Civil War suggested the dangers of state action. The Reconstruction Amendments gave Congress more authority to enforce against state wrongs.

Nonetheless, Congress also has a floor of responsibility. "Due process" includes basic guidelines on proper legislative authority. Some basic equal treatment principle has been expressed back to the Declaration of Independence.

Traditionally, race was a "reasonable" classification, especially when slavery was deemed acceptable. After the 13th Amendment, there was a stricter test. Bolling cites Gibson v. Mississippi as one example. As one comment suggests, there was also a basic assumption that the federal government would have to follow the same rules in the segregation context.

But, the federal government does not always have to follow the same rules. Again, there is a logic to that being the case.

[Brett Bellmore]

The logic being it making the rules, I guess.

[JoeFromtheBronx]

and all the rest, including the principles of James "Father of the Constitution" Madison & how the 14th Amendment text applies equal protection to states while the federal government only is restricted by due process of law.

[The Margrave of Azilia]

A simple constitutional amendment that neither the states nor the feds can practice racial discrimination, not even under supposedly high-minded excuses, would probably do some good and would not need judicial creativity.

[JoeFromtheBronx]

It is interesting how the ERA text is worded.

[The Margrave of Azilia]

One thing the Brown decision did was that the legal establishment patted itself so thoroughly on the back for its daring radicalism that it began to get the idea that daring radicalism was the thing to do with constitutional adjudication.

I read somewhere that the UK Privy Council, interpreting Canada’s organic act, decided that the term “person” included women, and then the Privy Council proceeded to pat itself on the back so vigorously that they risked breaking their arms. How radical and enlightened they thought they were being!

So with Brown. I don’t think it needs a lot of daring radicalism to say that separate is automatically unequal. It just takes a “what were we thinking?”, an apology, and an overruling of Plessy.

You can rule segregation unconstitutional without pretending that you’ve just invented some new and awesome principle which nobody thought of before you came up with it.