Nat Hentoff: John Roberts v. Thurgood Marshall





On the first day of the Senate Judiciary Committee's questioning of John Roberts—who is a strong supporter of the sanctity of adhering to the precedents of Supreme Court decisions (stare decisis)—Democrat Joseph Biden of Delaware bluntly emphasized, however, that the Constitution is a living document.

For a striking example, Biden pointed out to Roberts that 58 years after the Supreme Court made "separate but equal" racial segregation the law of the land (Plessy v. Ferguson), a unanimous Court decided in Brown v. Board of Education (1954) that segregated public schools are inherently unconstitutional. Roberts agreed that Brown v. Board was a legitimate exception to stare decisis when it broke with the precedent of Plessy v. Ferguson.

Biden sweepingly added that the 1954 ruling had thrown "racial segregation . . . in the dustbin of history." No one in the hearing room questioned that conclusion. But neither Biden nor Roberts mentioned that a series of Supreme Court decisions since Brown have so weakened this much celebrated ruling that there are now more segregated public schools in the nation than in 1954.

Nor was there any reference to the fact that John Roberts—in the political post of deputy solicitor general in the Justice Department of George W. Bush's father—played a significant role in the strengthening of racial segregation in public schools when he signed the government's amicus briefs in two cases: Board of Education of Oklahoma City v. Dowell (1991) and Freeman v. Pitts (1992). His boss at the time was solicitor general Kenneth Starr. ...

The 1991 case, Oklahoma City v. Dowell, is detailed in one of the most important books on American history: Richard Kluger's Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (Knopf). The 2004 updated version of this Pulitzer Prize–winning book is still in print, in hardcover and paperback. Because of how fragmentedly American history is taught in our schools, including universities, it's very much worth getting this book in view of the bleak civil rights prospects of the Roberts Supreme Court in the years ahead.

To the case: Oklahoma City's schoolboard had ended its 13-year-old school busing program mandated by a federal court to assure integrated elementary school grades. The schoolboard decision, Kluger notes, "left eleven city primary schools with all-black enrollments." The rationale: The city's residents had the right to send their children to neighborhood schools—"as if," Kluger pointed out, "blacks could readily pick their neighborhoods." (Emphasis added.)

The then Chief Justice William Rehnquist (John Roberts's mentor), ruling for the 5-to-4 majority, decided that the mandatory busing had been intended to remedy past intentional discrimination; but the time had come to go back to "the important values of local control of public school systems." Emphatically disagreeing, the NAACP sued.

This decision, which John Roberts helped facilitate, turned, wrote Kluger, "a blind eye" to its result—"inescapable future segregation" in Oklahoma City.

Dissenting was Justice Thurgood Marshall. For years, as counsel for the NAACP's Legal Defense Fund, Marshall had pursued a long, hard road through the lower courts to end this segregation—with a final triumph, so it had seemed, in the Ruling in Brown.

But with this decision, Marshall thundered, "The majority today suggests that thirteen years of desegregation was enough. . . . Remedying this evil—and preventing its recurrence—were the motivations animating the requirement that formerly de jure [by law] segregated school districts take all feasible steps to eliminate racially identifiable schools. . . . I believe that a desegregation order cannot be lifted so long as conditions likely to inflict the stigmatic injury condemned in Brown persist, and there remain feasible methods of eliminating such conditions." ...




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Tom L Cox - 9/29/2005

It is rare to find an endangered species, but in this column we have, someone who believes in massive forced busing. If there was ever a case that was misapplied by the Federal Courts it was Swann vs Charlotte-Mecklenburg 402 US 1 (1971) which served as the base for massive forced busing which did more to destroy the public schools than any other single event. Nobody enjoys riding a school bus for extended periods of time away from their neighborhoods. Finally in 2001 forced busing was stopped in Charlotte. The mistake was trying to make de facto segration due to economics and personal choice illegal. As to Justice Marshall's thundering dissent, it was a sad finish to his legal career. As for me Roberts is a far better choice.

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