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Judicial Hubris
Nothing new in the Bay State.


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While May marked the 50th anniversary of the Supreme Court’s historic decision in Brown v. Board of Education ruling racial segregation in public schools unconstitutional, last month was the 30th anniversary of a ruinous exercise in judicial hubris partly inspired by the moral success of Brown: Federal Judge W. Arthur Garrity Jr.’s decision ordering that the Boston public schools be desegregated, through a plan heavily reliant on mandatory busing, beginning in the fall of 1974. Whereas the Brown decision aimed to erase the moral stain of legally mandated segregation, Garrity’s ruling was grounded in a vision of remaking society by judicial fiat in the name of combating “historical” rather than legal segregation.

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As is now widely known, Judge Garrity’s decision did nothing either to promote racial integration or to improve the education of African Americans. Whereas the population of Boston public schools at the time of his order was 38 percent African American, his ruling (which immediately engendered widespread rioting and bitterness on both sides of the racial divide) quickly led to massive “white flight”–as well as the subsequent flight of the black middle class–to the point where (as noted by Harvard African-American scholar Henry Louis Gates Jr. in a recent interview in the New York Times Book Review) 7 out of 10 white students in the Boston area now attend schools in the outer suburbs that are over 90 percent white, while three quarters of black and Latino students attend schools in the city or one of its “urbanized satellites.” Because, aiming to escape the problems that white flight engendered, the black middle class moved out of Boston as well, Gates observed, “these all-black-and-brown schools not only are all-black-and-brown but they are poor,” thus heightening the difficulties of helping minority students with academic potential to escape from poverty.

Although the Boston schools were finally liberated from Judge Garrity’s busing order in 1987, its deleterious effects on both race relations and public schooling in the city thus linger on. Garrity himself is not known ever to have confessed his error. To the contrary, in an interview a year before his 1999 death, he remarked that he harbored “no regrets” about the decision, being confident that it had been right given the “circumstances” of the time.

With a view to appreciating the dangers that judicial activism poses to Americans’ right of self-government and to the possibility of addressing our social problems through statesmanship and negotiation rather than sweeping court orders, it is worthwhile to reread a Times interview with an eponymous Boston colleague of Judge Garrity’s at the state level whose reputation for activism rivaled his, Paul Garrity, which the Times published in October, 1984–barely a decade after the start of busing. Between them, the two judges Garrity (a fawning Times reporter observed) had taken control of Boston’s public schools, jails, public-housing system, and even its sewer system. When asked by the reporter about the secret of his and the better-known Arthur Garrity’s success in seizing direction of the policymaking process, Paul Garrity explained, “The easiest way to achieve control is to have people realize that if they get out of line, you’ll nuke them. I suspect that [Arthur] Garrity would nuke them. I know that I’ll nuke them.”

Can one imagine a judge at any previous time in American history getting away with such a pronouncement? Can one even imagine George III daring to use such language (suitably modified for differences in military technology) in addressing the American colonists, prior to 1776?

Massachusetts’s judges have since passed on to other causes, such as the creation of an oxymoronic institution called “gay marriage.” But their guiding spirit is the same. Not until the people of Massachusetts, and other states, are persuaded to reclaim their right to constitutional self-government will our judges’ morally self-indulgent claim to rule us on the basis of their supposedly more elevated insight be curbed. As the history of Boston’s schools over the past three decades demonstrates, the judicial branch is hardly well-qualified to exercise such governance.

David Lewis Schaefer is professor of political science at Holy Cross College.



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