The Emerging Conservative Court Majority

32 Historically Speaking September/October 2007 can't stop at diis fifty-year mark and say "mission accomplished," neidier can we shrug and say, "Oh well, we tried." For some, the dream hasn't died. There are those who still believe diere's value in a diverse educational community, value in children coming together across lines of race. Sara Bullard is the author of Free at Last: A History of the Civil Rights Movement and Those Who Died in die Struggle (Oxford University Press, 1994), winner of an American Bar Association Silver Gavel Award; and Teaching Tolerance: Raising Open-Minded, Empadietic Children (Doubleday, 1996), Parent's Choice book award winner. She has been afellow at the MacDowell Colony and the Virginia Centerfor the Creative Arts and isformer director of the Teaching Tolerance project of the Southern Poverty Law Center . The Emerging Conservative Court Majority Richard H. King In his very useful overview of the historiographical treatments of the Litde Rock crisis, John Kirk observes: "Current rulings of a much more conservative Supreme Court have severely curtailed lawful integration." Indeed, a recent Court decision handed down in June 2007 rejected by a 5-4 majority the efforts of local officials in Seattle and Louisville to deal with racial balance in schools. What must strike anyone knowledgeable about the history of the Supreme Court is the distance traveled in constitutional jurisprudence since Brown and the Litde Rock crisis. Kirk mentions the relatively paltry contribution of intellectual history to the study of the civil rights movement. It's not quite as bad as he suggests, but historians of the civil rights movement desperately need to recruit more people to write the intellectual history of constitutional jurisprudence on race since, say, the New Deal. In several law journal articles published in the 1990s (as opposed to his massive FromJim Crow to Civil Rights), Michael Klarman has made a valuable start, but much more remains to be done. Specifically , we need studies that explain the transition from the legal realism that dominated constitutional thought up to World War II to the Warren Court's counter-majoritarian, "political process"(Klarman), race-and-rights jurisprudence tradition. Since then, conservative constitutional thinking on race has gradually developed a new jurisprudence that began to emerge in earnest from the Rehnquist Court in the 1980s and is now adhered to by half of the present Roberts Court. This bare majority was solidified by die ascendancy ofJohn Roberts to the position of Chief Justice, die naming of Joseph Alito to the Court, and the retirement of Justice Sandra Day O'Connor from it. In general, these developments also reflect the profound importance of racial issues in Court deliberations more than a half-century after Brown. If nothing else, the failure to develop an internally consistent, neutral set of constitutional principles on racial matters, as hoped for by legal scholar Herbert Wechsler in the late 1950s, is an inevitable fact of life. When the Warren Court was in its ascendancy , conservatives enjoyed sniping at inconsistencies and bemoaning its lack of a coherent theory of constitutional interpretation. Now with a conserJohn T. Bledsoe's photograph of white protesters marching from the capítol to Central High, August 20, 1959. Library of Congress , Prints and Photographs Division [reproduction number, LC-U9- 2906-15]. vative majority in the offing, liberals and progressives can carp at conservative special pleading and self-serving claims. In truth, all that can safely be said is that constitutional interpretation in practice is always a mixture of principles and pragmatics, abstract considerations and circumstantial concerns. Where conservative jurisprudence is most inconsistent is in its recent habit of following principles dogmatically. It is what might be called a jurisprudence of principle rather than prudence and tradition, a strange position for conservatives to hold. What does this theory of interpretation look like now? First, most conservative legal thinkers think of themselves as "literalists" (a term I will use here to encompass "textualists" and "originalists") in their readings of die Constitution itself. In die terms suggested by Sanford Levinson nearly two decades ago, they are "Protestant" literalists rather than "Catholic" interpretivists in their hermeneutic approach . But, of course, literalism is untenable taken by itself...