Scholars who grapple with the Rehnquist Court’s activism understandably have relied on the work of those who grappled with the Warren Court’s activism several decades ago. In particular, they have built upon the work of Alexander Bickel, responding to the countermajoritarian difficulty by emphasizing just how much courts should leave unresolved. But this contemporary emphasis on judicial minimalism overlooks half of an important tradition. From the time of the Founding right up until Bickel, judicial power was defended based not only on its narrowness, but also on the expectation that judges would base their decisions on law. The other half of this tradition, captured by Herbert Wechsler in his famous Neutral Principles article, has been largely overlooked. The goal of this Article is to correct the current imbalance between the neutral-principles and minimalist traditions. The Article employs institutional and historical analysis both to cast doubt on the wisdom of the recent shift toward minimalism and to support a jurisprudence of principled minimalism in its place.
Volume 90
The Space Between School Desegregation Court Orders and Outcomes: The Struggle to Challenge White Privilege
This Essay reports on the results of a five-year study of six communities that tried to racially balance their public schools during the 1970s. This research reveals the details that lie between the court orders (or whatever desegregation policy existed) and the student outcome and demographic data that have been captured in quantitative analyses. In the space between the mandates of desegregation and the results, we found that the schools and communities often unwittingly reproduced racial inequality by maintaining white privilege within the context of desegregated schools. Yet at the same time, these schools provided spaces where students and educators crossed the color line in ways they had never done before and have not done since.
This Essay argues that the school desegregation policies that existed in these school districts, though better than nothing, simply were not enough to change the larger society single-handedly. It illustrates how difficult it was for the people in these schools to live up to the goals of school desegregation given the larger societal forces—including racial attitudes and politics, housing segregation, and economic inequality—working against them. It also documents how deeply committed some of these actors, both educators and students, were to trying to bring about change. In this way, the study speaks to larger lessons about the role of schools in society and the uphill but worthwhile efforts of lawyers and judges to use schools as one of very few tools for social change.
Racial inequality and the resultant segregation did not begin in the public schools; thus, we should not expect remedies in the public schools to solve the problem alone. But we can rely on racially diverse public schools—to the extent that current policies allow them to exist—to be important sites in the struggle for a more just society. Lawyers and legal scholars who helped fight for school desegregation and who continue to push for racial diversity in educational settings need to understand this more complex view of the history and reality of school desegregation in the United States in order to move forward with new legal strategies.
Some Legacies of Brown v. Board of Education
This Essay examines three legacies of Brown v. Board of Education. First, it describes the way in which the litigation campaign that culminated in Brown became the model for other strategic litigation campaigns aimed at obtaining court decisions substantially changing the law. Second, it explains how Brown should be understood as part of American political development, the collaboration by the Warren Court with the main lines of the political commitments of the New Deal and (later) the Great Society. Finally, it offers an account of the dissipation of Brown’s legacy in desegregating the schools that connects that development to the transformation of American politics in the 1970s and thereafter.