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Klarman Offers New Argument on Origin and Effects of Brown
Social Currents then at Work Forced the Court’s Hand

• Cullen Couch

Brown decision

The original Brown decision signed by each Supreme Court Justice and supporting documents were a gift to the Law School from E. Barrett Prettyman, Jr. ’53. The documents are on display in the Arthur Morris Law Library. Papers of E. Barrett Prettyman, Jr., 1944 (1953-1955)-1982, MSS 86-5, Special Collections, University of Virginia Law Library.

As one of the country's pre-eminent constitutional historians, Professor Michael Klarman, the James Monroe Distinguished Professor of Law and a faculty member since 1987, casts a large shadow in the academy, both in scholarship and in person. His stentorian voice and tall frame command attention, and he lectures much like he writes—in complete sentences describing in riveting detail some of the greatest actors and controversies in the history of our nation. Students routinely give him high reviews; “best- taught course I have taken” is a typical comment in students’ course evaluations. And Klarman’s colleagues throughout the nation cite his work frequently in their own papers; newspapers, television, and radio often seek his commentary on current issues in constitutional law.

So it is no accident that his latest work, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, released on the 50th anniversary of the landmark decision in Brown v. Board of Education, has found such a receptive audience in both academic and popular press. It is also no accident that in poring over the voluminous record of the history before and after Brown, Klarman has shed new light on its origins and the somewhat paradoxical consequences that followed it. In short, Klarman says Brown was a pivotal moment in American history, but not for the reasons many people believe.

He describes the real reasons in this monumental work begun more than ten years ago (655 pages; 157 pages of which are notes and bibliography). The book tracks the history of segregation in the south from the Plessy era on and shows how American racial attitudes and practices were changing dramatically in the late 1940s and early 1950s as a result of various forces deriving from World War II.

Brown “Backlash” Was Civil Rights Catalyst

Today, it is conventional wisdom that the Brown decision created the civil rights movement. Klarman argues that the reverse is true: Brown could not have happened unless a nascent civil rights movement was already underway. “The justices in Brown appreciated that they were riding the crest of a wave, not inaugurating a social movement,” says Klarman.

Clearly though, Brown was a turning point in American race relations. Klarman shows with penetrating scholarship that although the Court’s legal decision was but a reflection of national trends already set into motion, Brown nevertheless sparked a political inferno in the south that accelerated the pace of civil rights. The book paints a chilling picture of the violence at the core of the white supremacy movement which, according to Klarman, was both the reason for its fearsome success and for its ultimate demise. In newspapers and television, the entire nation saw the evils of segregation.

“There is no way that you would have had a federal law barring school segregation ten years later had it not been for Brown. Though gradual change was going on in the south and probably would have continued, white southerners, especially in the Deep South, would not have given up school segregation for many decades longer had it not been for this violent display that led northerners to demand federal intervention.”

Klarman's book

Critics Hail Book as “Magisterial Accomplishment”

Both the mainstream and academic press give the book rave reviews. The New Yorker calls it "magnificent.” The Wilson Quarterly says it is a “luminous study” that is “sweeping, erudite, and powerfully argued.” The Los Angeles Times, which calls Klarman one of the “leading academics writing about the law of race,” says his book “not only illuminates the social and political forces that have shaped the Court's historical approach to race discrimination, he also gives us a powerful reminder of the limits of law.” James T. Patterson, a noted historian, says Klarman’s book is a “magisterial accomplishment.”

Klarman also contributed an article in The Nation’s special issue on Brown in April, op-ed pieces in The New York Times and The San Jose Mercury News, and articles in the Judges Journal and Humanities Magazine. He has also lectured and conducted workshops on Brown throughout the country, and has appeared as a guest on radio and network television programs covering its 50th anniversary.

Warren Leads a Troubled Court to Unanimity

Brown was not the easy case that its unanimity might lead one to suppose. Klarman’s research reveals that in the initial conference, the justices were divided roughly down the middle about whether to reaffirm the “separate but equal” doctrine established by Plessy. Indeed, Plessy in its time was grounded in “plausible interpretations of conventional legal sources: text, original intent, precedent, and custom,” says Klarman.

As the 1896 Court in Plessy had to rely on its interpretation of the 14th Amendment, so did the 1954 Court in Brown. The result illustrates one of Klarman’s central points: judges read their own values into the constitution. The drafters of the 14th amendment almost certainly did not mean to bar school segregation. In fact, dozens of court rulings had sustained its constitutionality. Further, the justices who were destined to decide this issue had been appointed by Presidents Roosevelt and Truman primarily because they condemned the sort of judicial activism that characterized the preceding era when the Court invalidated a wide array of protective labor legislation on a thin constitutional basis. “Several of these justices were not sure that invalidating school segregation was all that different from invalidating a minimum wage law, and they had condemned their predecessors for doing that.” Several of the justices weren’t sure there was a strong legal theory for striking down segregation. The most compelling argument against segregation was that it was evil—morally indefensible—but most of the justices did not believe their moral views were relevant to constitutional interpretation. Several of them experienced Brown as a conflict between law and politics. “They believed that segregation probably was legally justified, but they could not bring themselves to stomach that result.”

And ultimately, they didn’t. In Brown, the Court concluded that Plessy was wrongly decided; separate was inherently unequal and thus violated the 14th Amendment. Earl Warren, the Republican Governor of California appointed by President Eisenhower to succeed Fred Vinson as Chief Justice, used his political skills to convince those justices most reluctant to invalidate school segregation to shelve their concerns and join their brethren in presenting a united Court.

A Court Emboldened

As Brown surely acted as a catalyst for dramatic social change, it also laid bare the struggle between originalists and those who favor a “living” Constitution. According to Klarman, virtually everyone today regards the decision in Brown as correct; no one would argue that state mandated school segregation is constitutional. This has forced modern-day proponents of originalism to struggle to come up with a justification of Brown.

“There is a powerful dynamic today leading originalists to offer arguments defending Brown as a matter of original understanding because one of the most powerful challenges to originalism is, ‘what about Brown?’ Brown is almost universally regarded as right and important. Today, every constitutional theory has to be able to accommodate the result in Brown or risk not being taken seriously,” says Klarman.

Though the Court in Brown was not pushing far ahead of an emerging social consensus against racial segregation, the praise the justices received in the decade to follow likely pushed them to be more aggressive in the 1960s, says Klarman. “[The Court] was regarded as having been obviously right on what soon came to be regarded as the most important moral issue of the 20th century. I think the Court was then emboldened to do a lot of other things in the 1960s, such as reapportioning legislatures, revolutionizing criminal procedure, and striking down prayer in schools. I think those outcomes are hard to imagine without the Brown decision being regarded as such a huge victory for the Court.”


TODAY, IT IS CONVENTIONAL WISDOM that the Brown decision created the civil rights movement. Klarman argues that the reverse is true: Brown could not have happened unless a nascent civil rights movement was already underway.

Brown as Creation Myth

In establishing the linkage between Brown and the civil rights movement, Klarman had to delve into the darker corners of our collective past. “It's hard to study the Jim Crow South without feeling both disbelief and outrage,” he says. “The barbarity of some of these episodes—Bull Connor and the police dogs, the murder of the young schoolgirls in the Birmingham Baptist Church, the assassination of NAACP leader Medgar Evers in Mississippi—is very hard to fathom today. But one also comes across stories of extraordinary courage and dignity by those who challenged the system, often at significant personal risk, and it is really quite inspiring.”

All teachers of Constitutional Law ultimately have to make peace with Brown, says Klarman. But in trying to tell what he believes is the real story, Klarman knew he was taking some risks. The legal academy tends to treat Brown as sacrosanct, Klarman believes—beyond criticism or even questioning. “Some people are prone to assume that if one questions the importance of Brown then one lacks commitment to racial equality. This has always struck me as odd:Why should questioning the relative importance of litigation in changing American race relations say anything about one's commitment to racial equality? ”

Extending the Hypothesis

With this book now behind him, Klarman plans to write an article extending the point he makes about Brown’s unpredictable backlash effect and applying it to a series of other landmark Court rulings involving abortion, criminal procedure, the death penalty, and state court decisions protecting same-sex marriages. He will argue in all of these areas that perhaps the most important consequence of Court decisions is to mobilize political opposition and then will propose a general theory about why some Court decisions produce that effect and others don’t.

“That’s a big project and ties into a constitutional theory book I’ll probably write over the next five years. I’ll call it something like “Constitutional Skepticism” or “Constitutional Cynicism” and it will generalize from some of the points I make about the race context in this first book. My main claim is that judicial decisions stem from a judge’s values which broadly reflect the currents of the time, and so we should never expect a Court to get that far out of touch with public opinion. The other main point in the book will be to talk about some of the unpredictable consequences of Court decisions.”

For the immediate moment, Klarman will take a breather from the hectic pace he has set for the past couple of years. But only a short one.

“I’m kind of compulsive about this,” he says with a smile. “Scholarship is what I do. It’s fun. It gives me pleasure.” Given the accolades he continues to receive from his students, his colleagues, and his readers, it does the same for them.

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