A Storm over This Court
Law, Politics, and Supreme Court Decision Making in Brown v. Board of Education
Publication Year: 2013
On the way to offering a new analysis of the basis of the Supreme Court’s iconic decision in Brown 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 Court demonstrates that the puzzle of Brown’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 Court demonstrates 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.
Published by: University of Virginia Press
Series: Constitutionalism and Democracy
Title Page, Copyright
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While writing this book, I accumulated a number of debts that it is my pleasure to acknowledge. Bill Caferro and Megan Weiler kindly invited me into their home during one of my numerous research trips. Justin and Rosa Byrne provided companionship during another research-related ...
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On May 17, 1954, the U.S. Supreme Court ruled unanimously in Brown 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 ...
ONE Barriers to Desegregation
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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 ...
TWO The Attitudes of the Justices
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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 of Brown—by demonstrating that the ...
THREE Law, Anticipated Violence,and Loyalty to the Court
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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 in Brown do much to illustrate the point, ...
FOUR A Sense of the Court’s Mission
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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 ...
FIVE The Relevance of Foreign Affairs
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The sensitive nature of the issue litigated in Brown suggests 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 ...
SIX Domestic Political Considerations
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The relevance of the domestic policy concerns of the executive to the Brown decision cannot simply be traced to the statements of either of the administrations that participated as amicus curiae. The Eisenhower administration sent the Court anything but a clear message regarding its position on desegregation, and the Truman administration’s support for ...
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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 under-standing 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 ...
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Page Count: 280
Publication Year: 2013
Series Title: Constitutionalism and Democracy