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Fun With Historical Counterfactuals: Did Brown‘s Unanimity Matter?

[ 28 ] May 14, 2010 |

I’ve been having a conversation with the very sharp Silvana Naguib. Particularly since my general position on this is on the record, and I think the analysis applies to anybody Obama might have appointed, rather than turn this into the umpteenth Kagan post let’s talk about Brown v. Board instead.

As I mentioned in the post below, I think that Mark Tushnet makes an excellent case in his underrated biography of Thurgood Marshall that had the Vinson Court issued an opinion rather than holding the case over for re-hearing it would have ruled school segregation unconstitutional. But of course the influence of Warren is presumed not just to be in Brown’s holding but in the fact that he was able to generate a unanimous opinion despite the initial skepticism of several of his brethren. The ability of Warren to get Jackson to keep his threatened concurrence to himself, strong-arm Stanley Reed into joining the majority, etc. is the kind of statesmanship and ability to persuade that it’s the hot thing to look for in a Supreme Court justice. But the key question is whether any of this maneuvering mattered? My answer: Brown being a unanimous opinion probably had no impact on its short or long term acceptance, and the general tradition of requiring unanimity of in desegregation cases if anything had a net negative impact on desegregation Southern schools.

With respect to the short-term reaction to Brown, the evidence is about as clear as a counterfactual can be. It’s hard to imagine how an 8-1 or 7-2 opinion could have generated any more resistance. There was basically no school integration in the Deep South before the Civil Rights Act. Most Southern members of Congress signed a manifesto declaring the opinion lawless. Southern politics became so radicalized that it became almost impossible to be too racist when you were running office. I don’t really see how a dissent could have made things worse. And long-term, Brown was always going to be accepted because the Court got itself on the right side of history. The only plausible impact of a dissent by Reed would have been a permanent stain on Reed’s reputation. I don’t see how Brown‘s unanimity mattered.

Moreover, as Michael Klarman (who I think is much more sympathetic to this general line of reasoning) has pointed out, the “all deliberate speed” formulation that was cooked up to keep everyone on board in Brown II probably had a small net negative impact on integration in the South. As Black and Douglas always understood, there was never going to be more than token integration in the near term. But the some of the federal judges in the South who might have felt to compelled to obey a clear directive had no reason to issue strong pro-desegregation rulings when the Supreme Court’s controlling opinion didn’t actually require them to do anything. A Court that was less concerned about a futile attempt to persuade Southern moderates and that had just issued a short follow-up ruling saying that school segregation was unconstitutional now might have had some slight positive impact on integrating Southern schools, although any opinion it issued would have been widely resisted.

A final argument in favor of the impact of Warren’s persuasive abilities might be that the tradition of unanimity in desegregation opinions increased support for vigilance on the part of the federal courts. But it’s hard to see how this is true. The the case where the tradition of unanimity was abandoned involved a holding that a segregated and unequal public school system was constitutional. And of course Parents Involved has starkly indicated the extent to which Brown has come to stand for a nearly meaningless formalism that now actually prevents some school districts from trying to integrate their schools. Again, it’s hard to see how the unanimity of Brown mattered here.

In essence, Supreme Court decisions are ultimately judged by results: not by the reasoning, and not by the vote lineups. If persuasive ability matters, it’s only to the extent that it can affect swing votes (and even then cases where this is possible are likely to be very rare.)

Comments (28)

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  1. Malaclypse says:

    And long-term, Brown was always going to be accepted because the Court got itself on the wrong side of history.

    I think you missed a typo.

  2. [...] Fun With Historical Counterfactuals: Did Brown's Unanimity Matter … [...]

  3. Ed Marshall says:

    What time line do you think could place on the decision and still have a majority? I’m pretty sure “six months” would have lost and similarly “twenty years” would have lost.

  4. Joe says:

    To toss it out there, Stevens suggested separate was unequal when he was a law clerk and writing a memo for a higher education case and later noted that ‘all deliberate speed’ was in his view a big mistake.

    One problem with unanimity is that you often can’t really decide much. This is the folly of accepting a system where you need 60 votes, particularly if nearly no member of the other party is going to play. Relying on every single member of your party voting together is insane and you can’t govern very we

  5. Murc says:

    Question; you seem to have hit all the high points re: Brown’s unanimity and its ancillary effects save one.

    I have often seen the case made that Brown’s unanimity prevented Supreme Court confirmation hearings from turning into crazed litmus-test circuses for many decades. It is generally expressed like so: Roe was decided on a 5/4 margin, which encouraged both the losing and the winning side to go crazy on any and all future nominees to either swing that pendulum or STOP it from swinging; this has had a net negative effect on the process of selecting or confirming nominees.

    Had Brown been a similar decision 5-4 decision, or even 7-2, then in ADDITION to all the regular craziness we had during the Civil Rights Era, the Court would have been turned into a political football much much earlier, with people expressly running on platforms of getting the ‘one right vote’ onto the Court and/or crazed whackjobs taking potshots at justices in order to provide a more congenial replacement. But if you have ALL NINE signing on, then the point becomes moot and the planes of contention move on to other arenas and the Court can go about its business in peace.

    This has often seemed like a persuasive point to me.

    • Scott Lemieux says:

      Roe was decided on a 5/4 margin

      1)Roe was 7-2.

      2)Even if Brown was 8-1 or 7-2, there never would have been a hearing at which a median vote would have voted to overturn Brown, so I don’t see that the argument makes any sense.

      • Murc says:

        Hunh. Well, I both look and feel stupid for getting the margin on Roe completely wrong there. Thanks. I guess I’ll have to re-examine my preconceptions on the whole Brown thing. Thanks.

  6. rea says:

    It’s hard to imagine how an 8-1 or 7-2 opinion could have generated any more resistance.

    Oh, I don’t know–a firefight between the 82nd Airborn and the Arkansas National Guard in Little Rock? Anti-Black riots with a death toll in the tens of thousands?

    Unaminity prevented anyone from pointing to the dissenters and arguing that this was an issue on which reasonable minds could differ. I don’t know if that made a difference to the outcome or not; it makes me feel a bit better about my country.

    But make no mistake about it, it could have been much, much worse.

    • Scott Lemieux says:

      Unaminity prevented anyone from pointing to the dissenters and arguing that this was an issue on which reasonable minds could differ.

      Since essentially every relevant person who disagreed with the substance of the decision said this anyway, I don’t really see how this could have made a difference.

  7. Eamonn Rorke says:

    But the point of Brown wasn’t just the domestic political impact. Check out Mary Dudziak’s Cold War Civil Rights – she makes a good case that the impetus behind Brown was its importance on the international stage. The US would have been roasted internationally if the court hadn’t ruled the way it did and in the contex of the beginnings of decolonization and trying to curry favour with third world countries at the UN, a decisive unanimous vote against segregation was vital.

    This also explains why it was so toothless. Dudziak shows that the Soviet response was a very tangible part of the discussion so a symbolic repudiation of racism for the international audience but bare incrementalism at home became a compromise solution.

  8. Anonymous says:

    Counterargument: Miranda.

    Miranda was 5-4, and the dissents spawned an anti-Miranda line that bubbled away for decades. Despite the breadth of the ruling, the strong dissents helped ensure there were always judges who were willing to chip away at it. And there was always the idea out there that Miranda was provisional, and might be overturned by a more sensible / conservative / reactionary court. Scalia was pretty much an open cheerleader for this from day one.

    That’s why we had to have Dickerson. Dickerson was an attempt to overturn Miranda, plain and simple. But at the end of the day, Scalia couldn’t find anyone but Thomas to join him in a dissent; there was a rock-solid majority of six in favor of Miranda, and Chief Justice Rehnquist switched sides so that he could write the majority opinion.

    Doug M.

  9. Doug M. says:

    Counterargument: Miranda.

    Miranda was 5-4, and the dissents spawned an anti-Miranda line that bubbled away for decades. Despite the breadth of the ruling, the strong dissents helped ensure there were always judges who were willing to chip away at it. And there was always the idea out there that Miranda was provisional, and might be overturned by a more sensible / conservative / reactionary court. Scalia was pretty much an open cheerleader for this from day one.

    That’s why we had to have Dickerson. Dickerson was an attempt to overturn Miranda, plain and simple. But at the end of the day, Scalia couldn’t find anyone but Thomas to join him in a dissent; there was a rock-solid majority of six in favor of Miranda, and Chief Justice Rehnquist switched sides so that he could write the majority opinion.

    Doug M.

    • Scott Lemieux says:

      But of course it’s virtually certain that Scalia would have been a cheerleader for this had the opinion been 9-0, especially given how unpopular the opinion was. And, as you note, attempts to overturn it were unsuccessful anyway, so I’m not sure what the point is. (And, yes, it’s been substantially whittled away — but so has Brown.)

      • Doug M. says:

        I’m less certain of that. Scalia was a cheerleader in part because /he thought he could change it/; he voted for cert because he thought he could get five votes.

        Wishful thinking, thank goodness… but there’s a complex long-term interplay of cause and effect here. Note that Dickerson involved a Congressional statute designed to gut Miranda, and based on the underlying assumption that it was of very dubious constitutionality. It took 30 years to reach the Supreme Court in part because lower courts kept ruling it unconstitutional and US Attorney Generals kept deciding not to appeal. Dickerson involved a perfect storm of a very conservative appeals court packed with Reagan/Bush appointees, and a USAG — the much-maligned Janet Reno — who gave the green light to proceed because she’d counted noses and was sure which way it would go. Even then, she was careful not to raise the issue of the /statute’s/ constitutionality, because she thought that would give Scalia more traction.

        Scalia insisted on raising it anyway, and the Court — to shut him up, it’s widely believed — invited his former law clerk, far-right nutcase Paul Cassell, to argue the point. This goes back to the complex interplay; one reason Cassell had been able to gain so much traction with his constant stream of anti-Miranda articles and amicus briefs was because Scalia had been sniping at Miranda from the bench for over a decade by then.

        If Miranda had been unanimous, then the Dickerson statute probably wouldn’t have passed Congress in the first place, and Scalia would have remained — on this as on so many other issues — a lone voice howling in the wilderness. And even if there had been a Scalia and a Section 3501 too, there probably wouldn’t have been the whole nexus of anti-Miranda stuff — articles, activist professors, amicus briefs, yadda yadda — that we saw in the 1980s and 1990s, all built up around the notion that one day Miranda might go away.

        (One pleasant side effect of Dickerson: all that has just gone away. Even Cassell, who spent ten years writing articles and briefs, has pretty much given up. It’s ironic, because an anti-Miranda appeal would certainly get three and probably four votes on the Court today.)

        (Also, Scalia’s dissent is still worth reading for amusement value. He presents the constitutional case briefly, and then spends the rest of his time raving about the “incoherence” of the majority. You can tell he’s even more outraged than usual; the general assumption is that he took Rehnquist’s defection very personally.)

        What difference it would make: isn’t that moving the goal posts, now? If Miranda had been unanimous, the whole anti-Miranda cottage industry would have been greatly reduced or would not have existed. Should we assume there were no knock-on effects whatsoever from that? Here’s one: anti-Miranda tended to overlap with, and empower, victims-rights movements. (Cassell is once again the type specimen here.) Victims rights sounds great, but in practice it’s become a stalking horse for a variety of attempts to whittle away at defendants’ rights. So anti-Mirandism was for twenty years a key piece of a moderately influential coalition. Take it away, and I think a lot of things would change.

        Doug M.

        • Scott Lemieux says:

          If Miranda had been unanimous, the whole anti-Miranda cottage industry would have been greatly reduced or would not have existed.

          This is just begging the question. I don’t think this is at all plausible — as Stevens said, the vast majority of justices to have considered the question think Roe was right, but that’s never stopped Scalia.

          And in terms of Miranda being stripped away, Brown’s unanimity hasn’t stopped it from being hollowed out even more.

  10. Joe says:

    Brown is a pretty extreme example. Still, one problem with unanimity is that it leads to weak decisions since they are the only ones that often can get all those votes. I don’t think a 7-2 ruling or anything (or 6-3 on some point) matters too much.

    But, 5-4 rulings do have some lesser cachet. The Court seems basically evenly divided and the decision is never firmly in place, one justice at least likely to find ways to weaken it or something. See what happened to National City v. Usury. If something is unanimous or nearly so, even if eventually some votes are loss (see Roe), it might be on some level particularly accepted as ‘settled law.’ That “sixth vote” matters.

    • Scott Lemieux says:

      But why would we frame this is a matter of “cachet” as opposed to simple vote-counting? It’s easier to overturn a 5-4 opinion because you only need to replace one justice from the majority; I don’t think there’s anything more mystical going on.

  11. Joe says:

    Also, Scott repeatedly seems to be saying that the reasoning of a ruling doesn’t really matter. It’s mainly the result. This is very Brennan, but I’m not sure if I buy it. Also, Silvana Naguib says at one point there often is simply two choices: one side wins or loses. This too is questionable.

    There can be various shades of gray, particularly if an opinion is written in a way that might affect later cases. Scott said as much regarding Kennedy’s abortion opinion — it looks somewhat narrow, but really is not. The winner or loser is not the only factor. HOW it is written matters. Is that “results” or “reasoning”? Seems a mixture.

    • Scott Lemieux says:

      Well, the reasoning of the opinion matters in terms of its effects on lower courts. But it’s irrelevant to the public acceptance of opinions.

  12. Doug M. says:

    Thinking about this for a bit: compare and contrast Miranda and Gideon.

    Miranda was 5-4 and spawned an anti-Miranda movement that lasted almost forty years, helped rally right-wing academics and activists, got a Congressional statute in its favor and eventually required a second Court decision to kill it.

    Gideon was 9-0 and… well, there hasn’t ever been an anti-Gideon movement worth mentioning. Even though Gideon actually costs money to implement.

    Doug M.

    • Scott Lemieux says:

      Gideon was overwhelmingly popular, and affected a tiny number of states in the Deep South. Miranda was overwhelmingly unpopular, and affected every state. It’s highly implausible to think that it’s the number of dissenters that’s the key issue here.

      • Doug M. says:

        I’d like to see a cite for the proposition that Gideon was “overwhelmingly popular”. No, it didn’t generate the same level of outrage as Miranda or the civil rights or obscenity cases, but that’s something else again.

        Also, I note that Gideon itself drew heavily on the dissent in Betts v. Brady twenty years earlier. Do you think that, if Betts had been unanimous, Gideon would have been decided in exactly the same way?

        And as long as we’re on Warren Court civil rights decisions: Katz (wiretapping) drew even more heavily on Brandeis’ dissent in Olmstead back in the 1920s. In fact, the idea that “the Fourth Amendment protects people, not places” is pretty much pure Brandeis, and “justifiable expectation of privacy” is a lightly paraphrased gloss.

        Olmstead was 5-4, with Brandeis trying aggressively for a majority and then writing a vigorous dissent. Katz was [googles] 7-1.

        Say Brandeis was out sick for Olmstead. Oliver Wendell Holmes probably flips to the other side — it was a very tough case for him, pitting his narrow but deep libertarian streak and sense of honor against his respect for executive authority. So we get a 6-2 decision with a weak and niggling dissent written by Stone or Butler.

        No change to Katz?

        Doug M.

  13. Incontinentia Buttocks says:

    I totally agree with your argument here, Scott.

    The notion that number of votes makes a difference seems to me like a variation of the claim that abortion is controversial because it was legalized by the courts rather than the legislatures.

    Most people care little about procedural matters and worry much more about end results. Opponents of reproductive rights are no happier about legislatively passed liberal abortion laws than about judicial rulings in favor of reproductive rights.

    But I’m fascinated by how much ink is spilled arguing that people really do care about these things when there’s little to no evidence to back this notion up. My entirely off-the-cuff explanation is that arguments about (supposed) procedural fairness and its (supposed) effects are somehow seen as more acceptable than the raw ideologies that actually drive these objections. Those opposing Brown, at least on the national stage, framed their arguments in terms of “states rights” and judicial usurpation not the purported superiority of the white race and the dangers of “miscegenation.”

    And there’s also the special cases of people like Stuart Taylor and Jeff Rosen, who claim to be pro-choice by are very upset that the abortion rights they purportedly support were granted by the courts. Is “concern troll” the right description for such folks?

  14. [...] Fun With Historical Counterfactuals: Did Brown's Unanimity Matter … [...]

  15. [...] legitimacy of the Court among the general public.   My guess is that it would not.   Certainly, I doubt that the 5-4 margin would matter, and nor do I think the fact that the ideological fault lines of the court now map precisely onto [...]

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