Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown (review)

McMahon offers a presidency-focused interpretation of the transformation of the constitutional law of race in the 1940s and 1950s. McMahon seeks to explain why President Franklin D. Roosevelt's Court attacked the underpinnings of the southern Democratic Party and why a Supreme Court staffed by justices who learned the virtues of judicial restraint in the constitutional crisis of 1937 was so activist on race issues.

McMahon's answer lies in Roosevelt's political strategy and constitutional vision. Roosevelt envisioned a strong national government centered on the presidency. Creating it required that he weaken the Democratic Party's conservative wing. That wing was strongest in the South, where it maintained its power by using the white primary, lynch law, and poll taxes to exclude African-Americans and the poor from the franchise.

McMahon's most striking arguments deal with the executive branch and its effects on the Democratic Party and the courts. Roosevelt's Department of Justice began to assault the southern Democratic Party's bulwarks. A new Civil Rights Section devised innovative legal theories—some of which the reconstituted Court endorsed—that undermined the white primary and gave the national government a presence in the fight against lynch law despite Congress' and Roosevelt's unwillingness to enact new anti-lynching laws. Roosevelt had tried to purge the Democratic Party of southern conservatives in the 1938 elections. McMahon offers the valuable insight that the Department's actions "carried on . . . what the purge campaign had failed to accomplish, namely, the disruption of southern politics to secure a more liberal future" (100). Roosevelt thus pursued a "hidden-hand strategy designed to destabilize southern politics by helping to secure the rights of black Americans and disfranchised southern whites" (102).

Success required the courts' cooperation. Roosevelt remade the Supreme Court to serve his constitutional vision by making the Court "an agent of the modern presidency" (62)—one reason that more traditional progressives like Senator Burton Wheeler opposed Roosevelt's Court-packing plan. The justices that Roosevelt chose shared his commitment "to the union between rights-centered liberalism and legal realism" (109), and were "familiar with the inadequacies of Dixieland democracy" (113). It came as no surprise that such justices would be activist on the question of segregation in Brown v. Board of Education.

McMahon is less successful in explaining why the Court in Brown relied on social-science evidence to support its conclusion. He invokes the justices' commitment to legal realism. Many legal realists insisted on the importance of taking evidence about social reality into account in adjudication, but McMahon shows only that Roosevelt and the justices that he appointed were influenced by other aspects of legal realism, particularly the claims that law was far less determinate than non-realists thought and that constitutional law inevitably had a policy component.