Does the Supreme Court Matter? Civil Rights and the Inherent Politicization of Constitutional Law

More than a decade ago, in a colloquium sponsored by the Virginia Law Review, scholars of the civil rights movement launched a fierce assault on Michael J. Klarman’s interpretation of the significance of the Supreme Court’s famous school desegregation ruling in Brown v. Board of Education. Klarman’s “backlash thesis,” initially set forth in a series of law review and history journal articles and now serving as the centerpiece of his new book, revolves around two central claims. First, he argues that the advancements toward racial equality generally attributed to Brown were instead the inevitable products of long-term political, social, and economic transformations that “would have undermined Jim Crow regardless of Supreme Court intervention.” Second, he credits Brown with a role in this historical process only through a chain of indirect causation: the Supreme Court decision galvanized massive resistance and racial violence in the South, which civil rights activists capitalized upon by engineering televised confrontations that mobilized public opinion across the nation, which created the climate for the passage of the federal civil rights and voting rights legislation of the mid-1960s, which directly and profoundly transformed southern race relations. Although the contours of this general story are part of the standard historical narrative, firmly grounded in the secondary source literature and taught in almost every university classroom, Klarman’s specific charge that civil rights scholars have greatly exaggerated the importance of Brown set off a bit of a firestorm. The first wave, which accompanied the 1994 Virginia Law Review article, included not only the expected differences of historiographical analysis but also criticism of a surprisingly personal nature. The response by David J. Garrow, titled Hopelessly Hollow History, ascribed Klarman’s views on Brown to the “professorial urge for interpretive novelty,” which often produces useful advancements but in some unfortunate cases results in “revisionist interpretations whose rhetorical excesses are quickly revealed for what they are when old, but indisputable historical evidence, is inconveniently brought back to the pictorial foreground.” Garrow highlighted Klarman’s failure to acknowledge the “direct influence of Brown on the instigation of the 1955 Montgomery [bus] boycott,” a causal analysis that emphasizes the crucial inspiration for southern black activists who finally had the moral authority and legal force of the Supreme Court on their side. While conceding Klarman’s point that Brown resulted in little school desegregation during the decade after 1954, Garrow blamed the Court itself for emboldening resistance to its decree through the infamous “all deliberate speed” implementation guidelines known as Brown II. Under this scenario, primary fault for the limited reach of Brown rested in the justices’ constrained vision of enforcement rather than in their premature placement of desegregation on the nation’s political agenda. In the final sentence of his rejoinder, Garrow dismissed Klarman’s entire project with undisguised condescension for the law professor treading on historians’ turf: “[C]commentators would be well-advised to keep their professional desire for interpretive novelty in check, for rhetorically excessive overstatements and oversimplifications oftentimes do turn out to be hopelessly hollow once a fuller understanding of the historical record is brought to bear.”