Last year in National Review, I had a lengthy piece about the civil-rights movement and the law. In it, I noted that many civil-rights victories — in particular Brown v. Board and some anti-discrimination legislation — required bending the Constitution. My overall thesis was that while this was entirely appropriate in the face of Jim Crow, we need to admit that this bending took place and justify it as a necessary exception to the rules — rather than treating civil-rights triumphs as a template for future decisions.
My intent was to answer questions such as “How can an originalist support Brown without supporting other ‘activist’ decisions?” and “How can a libertarian support laws that forbid employers to discriminate without supporting other government intrusions?” But of course there are legal ramifications to bending the rules as well: If the Supreme Court has established a precedent or principle in regards to a race-related topic, courts will typically apply it elsewhere as well. And so the expansive view of federal power that was needed to justify anti–Jim Crow decisions has been applied across the board.
This month, New York University law professor Burt Neuborne has a law-review article on that very topic — what he calls the “gravitational pull” of race on the Supreme Court’s interpretation of the law — with a focus on the Warren Court. It’s worth reading in full, but here are a few key grafs:
My thesis in this article is that concern over racial injustice and state institutional failure was so intense during these twenty-one “Warren years” that it played a significant role in shaping many of the most important constitutional decisions of the Supreme Court in areas as diverse as federalism; separation of powers; criminal law and procedure; freedom of speech, association, and religion; procedural due process of law; and democracy. I believe, as well, that at least some of the changes in constitutional doctrine that have taken place in the post-Warren era, such as the erosion of the exclusionary rule, the rebalancing of federal-state power, and the easing of restrictions on aid to parochial schools, reflect both a decrease in the intensity of the Court’s concern over racial injustice, and an increase in the legal system’s confidence in state and localinstitutions to act fairly in racially charged settings.
I begin with a summary of selected aspects of Warren Court constitutional doctrine having nothing directly to do with race, arguing that the Justices’ concerns over racial injustice and regional failure to deal fairly with race exercised a gravitational pull on the evolution of constitutional doctrine. I then turn briefly to whether such a gravitational pull should be cause for celebration, condemnation, or a shrug of the shoulders. Finally, I ask why, once the gravitational pull of race had ebbed, certain Warren Court constitutional precedents that appear to owe their genesis, at least in part, to concern over racial injustice and regional failure have flourished, while others have melted away.