Volume 90

“Happy” Birthday, Brown v. Board of Education? Brown’s Fiftieth Anniversary and the New Critics of Supreme Court Muscularity

Professor Michael Klarman’s book, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, covers the entire corpus of Supreme Court case decisions concerning race, from the infamous Plessy v. Ferguson in 1896 to Brown v. Board of Education in 1954. Klarman addresses three principal questions: What factors explain the dramatic changes in racial attitudes and practices that occurred between 1900 and 1950? What factors explain judicial rulings such as Plessy and Brown? How much did such Court decisions influence the larger world of race relations? Klarman argues that, in regard to whether state-imposed segregation of the races violated the Equal Protection Clause of the Fourteenth Amendment, the Supreme Court only reconsidered the meaning of the Constitution once public attitudes had already changed. He writes that the Supreme Court “did not invalidate racial segregation until after public opinion on race had changed dramatically as a result of various forces that originated in, or were accelerated by, World War II.” 

This Review explicates the interpretive sweep of Klarman’s book: its treatment of the Jim Crow decades, of the World War II years, of the Brown decision, and of the civil rights movement. It then critically considers Klarman’s overarching argument concerning the Supreme Court’s supposedly minimal role and influence in American politics and society. Lastly, the Review contends that Klarman’s analysis, when understood in conjunction with recent writings by Professors Rosenberg, Tushnet, and Rosen, represents both a potent and a potentially dangerous new political critique of the Supreme Court’s traditional power of constitutional judicial review.

Beyond Statutory Elements: The Substantive Effects of the Right to a Jury Trial on Constitutionally Significant Facts

The Supreme Court’s decision in Apprendi v. New Jersey established a relatively clear rule: The Sixth Amendment’s right to a jury trial places a substantive restriction on legislatures by preventing any fact that has been deemed necessary for a particular level of punishment, either by statute or by constitutional decision, from being subject to judicial factfinding. Specifically, the Court held that the Sixth Amendment right to a jury trial requires that any fact (other than a prior conviction) that exposes a defendant to a greater level of punishment be found by the jury beyond a reasonable doubt.

This decision was nominally directed at so-called “sentence enhancements”—facts found by the judge at sentencing that increase punishment beyond the maximum allowed by the underlying statute. Some scholars have expressed concern that legislatures, deprived of the use of the increasingly popular sentence enhancements, would redefine their criminal codes so as to avoid the new Apprendi requirement by simply raising the maximum penalty authorized by the underlying statute. The judge could then use this greater discretion in sentencing to inflict the higher level of punishment desired. In light of this fear, there has been a revitalized effort to understand the boundaries that the Constitution places on the substance of criminal law.

This Note argues that the Sixth Amendment right to a jury trial, as explained in Apprendi, places a substantive restriction on legislatures by requiring that any fact deemed necessary for a particular level of punishment, either by statute or constitutional decision, be treated as an element of the crime.

Thomas Jefferson Counts Himself into the Presidency

The Constitution instructs the President of the Senate to “open” the ballots submitted by members of the Electoral College, but it provides little guidance when a ballot turns out to be defective. This article provides the first in-depth consideration of two early precedents. Both Vice-President John Adams and Vice-President Thomas Jefferson confronted problems when counting the electoral votes in 1797 and 1801, respectively. Both men were placed in the awkward position of ruling on matters involving an election in which they were leading presidential candidates, but Jefferson’s problem was more serious. In 1801, Georgia’s electors cast their votes for Jefferson and Burr, but their ballots were in plain violation of the Constitution’s explicit formal requirements. If Jefferson had ruled these votes invalid in his capacity as Senate President, one of the Federalist candidates, Adams or Pinckney, might well have emerged victorious from the House runoff required under the Constitution. But Jefferson used his authority as Senate President to exclude his Federalist competitors, restricting the runoff to a two-man race between himself and Aaron Burr. This allowed him to emerge victorious on the thirty-sixth ballot. Rumors of this episode occasionally surfaced during the nineteenth century, but this article presents indisputable documentary evidence demonstrating the irregularity of the Georgia ballot. After telling the story, we appraise its significance both as an act of constitutional statesmanship and as an enduring legal precedent that may guide future Senate Presidents as they confront the electoral college crises of the twenty-first century.

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