A Storm over This Court: Law, Politics, and Supreme Court Decision Making in Brown v. Board of Education

SIX Domestic Political Considerations

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 civil rights must be reconciled with the fact that, like African Americans, southern conservatives were an important element of the New Deal coalition . “Political regimes” scholarship, which portrays Brown as a logical consequence of Franklin Roosevelt’s attempt to use civil rights to remove the impediment that southern conservatives presented to his progressive constitutional vision of an empowered national executive, affords a more promising argument. But such scholarship is incomplete in that it does not adequately address the point that, after the presidential election of 1952, the New Dealers on the Court realized Democrats could no longer assume that southern conservatives were captives of the party. With regard to the puzzle of the New Dealers’ willingness to vote for desegregation in spite of the likelihood that doing so would contribute to the loss of a Democratic majority, the evidence does not support the contention that the justices believed politicians on both sides of the issue had asked the Court to resolve the dispute over segregation because it threatened to destabilize partisan arrangements. Instead, it is necessary to consider the fact that the New Dealers recognized social and political forces that were altering race relations in the South. The justices’ comments regarding these developments—as well as their votes on federalism and the rights of minorities and labor—are consistent with the argument linking Brown to Roosevelt’s constitutional vision. These behaviors suggested a hope that the growth of progressive forces in the region would eventually offset the loss of southern conservatives to the Republican party. SIX Domestic Political Considerations Domestic Political Considerations 149 Brown and the Eisenhower Administration In 1957, Robert A. Dahl provided an influential analysis of Supreme Court decision making and an interesting interpretation of the Brown decision . Dahl emphasized that the justices work in an institutional context that conditions or restricts the Court’s ability to function as “a national policy-maker.” The Supreme Court, he argued, “is inevitably a part of the dominant national alliance,” save “for short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions.” Since “presidents are not famous for appointing justices hostile to their own views on public policy nor could they expect to secure confirmation of a man whose stance on key questions was flagrantly at odds with that of the dominant majority in the Senate,” it is logical to assume that “the policy views dominant on the Court are never for long out of line with the policy views among the lawmaking majorities of the United States.” In those instances in which the policy views of the justices and politicians do not coincide, the Court jeopardizes its institutional prestige “if it flagrantly opposes the major policies of the dominant alliance.” “Such a course of action . . . is [thus] one in which the Court will not normally be tempted to engage.”1 While Dahl focused on demonstrating the infrequency with which the Court overturned federal legislation (in order to challenge the conventional view that the Court “stands in some special way as a protection of minorities against tyranny by majorities”), he sought an explanation for the Brown decision in a supposed affinity between the Court and the contemporary governing coalition on the matter of civil rights. “There are times,” he suggested, “when the coalition is unstable with respect to certain key policies” and the Court, “at very great risk to its legitimacy powers, . . . can intervene . . . and may even succeed in establishing policy .” In such cases, however, the Court “probably . . . can succeed only if its action conforms to and reinforces a widespread set of explicit or implicit norms held by the political leadership; norms which are not strong enough or are not distributed in such a way as to insure the existence of an effective lawmaking majority but are, nonetheless, sufficiently powerful to prevent any successful attack on the legitimacy powers of the Court.” Without elaborating on the leadership elements that he thought relevant, he opined that “this is probably the explanation for the relatively successful work of the Court in enlarging the freedom of Negroes to vote during the...