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What Thurgood Marshall Would tell the Roberts Court

This week’s anniversary ofBrown v. Board of Education falls nearly 100 years since the 20th century’s greatest civil rights lawyer, Thurgood Marshall, was born (July 2, 1908). Brown was a milestone in the nation’s civil rights history; the case also christened Marshall, the plaintiff’s lead attorney, as “Mr. Civil Rights.” Not long after, Marshall would be eclipsed by a new generation of civil rights leaders. His greatest disappointment, however, was to see the Court that decided Brown turn away from his legacy.

The Supreme Court’s dismantling of Brown has been on display most recently in a ruling last year involving school districts that adopted voluntary plans designed to maintain racial diversity in their schools. In Parents Involved in Community Schools v. Seattle School District last June the Court reviewed such a plan under its most stringent constitutional test: strict scrutiny. The efforts of a school board to keep schools integrated were scrutinized in the same way as the efforts of past school boards to keep schools segregated, as if they were the same. Facing this steep hurdle, the plan was struck down.

The Court’s approach was not inevitable, but a path in this direction was laid years earlier, when Marshall was on the Court. Regents of the University of California v. Bakke (1978), the Court’s first affirmative action case, took up the question of whether racial classifications intended to remedy discrimination should be measured by the same standard as racial classifications meant to harm racial minorities. The University of California’s program was faulty, but in Bakke and later cases, the Court’s increasingly broad use of strict scrutiny meant that the Court, and not the political branches, would set the terms of efforts to undo decades of discrimination. It became illegal to take race into account even in efforts remedy discrimination.

The Bakke decision prompted a bitter dissent from Marshall, the nation’s first African American justice. “Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery,” he wrote. “The slave was deprived of all legal rights,” and “the system of slavery brutalized and dehumanized both master and slave.” The Civil War changed things but, Marshall argued, freedom did not bring African Americans equality. Instead, “slavery was replaced by a system of laws which imposed upon the colored race onerous disabilities and burdens...to such an extent that their freedom was of little value.” Tracing the long and difficult history of race discrimination, Marshall concluded that in 1978, the position of African Americans was “the tragic but inevitable consequence of centuries of unequal treatment.” Meaningful equality remained “a distant dream.”

For Marshall, this context mattered when the Court took up government efforts to remedy race discrimination. “In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order,” he argued. “To fail to do so is to ensure that America will forever remain a divided society.” Taking race into account to remedy discrimination was not suspect. Instead it was an imperative.

Marshall’s argument in Bakke belies the current Court’s efforts to wrap its very different vision in Brown’s legacy. Chief Justice Roberts argued last spring that he and Marshall were on the same page, that the plaintiff’s attorneys in Brown supported the idea that all racial classifications should be equally suspect. This prompted a response from Robert Carter, Marshall’s co-counsel and now a retired federal judge, who the Chief Justice had quoted in his opinion: “All that race was used for” at the time of Brown “was to deny equal opportunity to black people,” he said. “It’s to stand that argument on its head” for the Court “to use race the way they use it now.”

The Roberts Court abstracted Brown from its painful historical context, a context that Marshall pressed on the Court in Bakke.

At a time when political pundits suggest that the Barack Obama candidacy portends a post-racial America, Brown’s anniversary date, May 17, should be a time to remember that, in moving forward, the nation cannot escape its past. This year, for Justice Marshall’s 100th birthday, on Brown’s anniversary we should reflect on Marshall’s admonition: “It must be remembered,” he wrote in Bakke, “that, during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.”

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