Brown v. Board of Education (1954) stands as a turning point in Supreme Court decision making as it erased segregation in schools and set a new standard for civil rights cases. Using stricter notions of scrutiny the Court was able to revitalize the Fourteenth Amendment. However, while this case set new standards in civil rights, the Court has since had a difficult time defining its role in cases regarding racial discrimination. Washington v. Davis (1976) and McCleskey v. Kemp (1987) are two such cases dealing with racial discrimination in which the court has had to deal with conflicting interests of the justices and how they perceive their role in the changing social landscape of the United States since the decision in Brown v. Board.
This paper will examine such conflicting interests by examining the majority, concurring, and dissenting opinions of the justices in the aforementioned cases. Additionally, this paper will critique the decisions in light of the following: the choice of political institution and rights principles; the use of precedents; their effect of the development of constitutional principles in its doctrinal area; the policy implications of the decisions; the effects of the case on the development of a principled constitutional law; the use of societal facts; and scholars’ views on aspects of the cases.
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The outcome of Brown v. Board gave the Court an increased role in shaping American society in regards to civil rights issues. Nevertheless, the Court continues to struggle with cases dealing with racial equality and the Fourteenth Amendment. As cases have become more complex in terms of racial discrimination the Court has had to adopt guidelines to help ensure consistent and competent judgments in determining their constitutionality. These guidelines, under the guise of strict scrutiny, have continually narrowed the interpretation of the outcomes of Brown and have limited the parameters of the Equal Protection Clause thereby causing continued debate within the Court and in society about racial discrimination.
While many changes in the law that have been reflected by rulings of the Court have been beneficial for the society they have not always mirrored public beliefs. By doing so the Court has had the power to direct how people act and behave regardless to their personal beliefs. The ruling in Brown was met with much opposition in Southern states, yet forced society to change even if the change was merely cosmetic. In “Desegregation and the Supreme Court: the Fatal Attraction of Brown,” Donald Lively argues that Brown “demonstrates the risks of recontouring constitutional law in anticipation of significant cultural progress without doctrinal insurance for unexpected consequences” (Lively. Glennon. 466). Central to Lively’s argument is that social beliefs in the South did not correspond to such a landmark decision as in Brown and that without related decision making by Congress, the Court proved to be shaping American society to its own needs and not that of the public. Lively continues to argue that because the decision in Brown did not mirror social beliefs that any “meaningful desegregation progress was not realized until after the Civil Rights Act of 1964 was passed and significant leverage became available for the federal government to compel compliance” (Glennon. 465). Through these arguments, we can see how the Court radically attempted to change society rather than interpret the existing legislation in order to direct society on its own accord. While Lively’s arguments pose some interesting points, it can be argued that the decision in Brown not only produced radical social change but also accelerated the promotion of civil rights legislation.
Had the Court not made its decision in Brown it could have stunted civil rights and perpetuated existing segregation and racist statutes throughout the country. However, perhaps the decision in Brown did not create enough of a change to clearly outline racial cases in the future. The Court asks in Brown if the “segregation of children in public schools solely on the basis of race, even though the physical facilities and other tangible factors may be equal, deprive the children of the minority group of equal educational opportunities,” yet the court does not address and determine factors that are not tangible which could cause the notion of “seperate but equal” too difficult to implement (448). Even while the case made leaps in civil rights progress, the failure to grasp some of the underlying aspects in the case might have caused the Court to be receptive to controversy and more narrow interpretations of racial discrimination cases. David Strauss’ “Discriminatory Intent and the Taming of Brown” argues that Brown failed to address basic rights principles by keeping the door open for continued interpretation of the Fourteenth Amendment rather than providing a clear definition for the Court. A central question that Strauss poses that is not adequately covered in Brown is: “what constitutes impermissible discrimination under the Equal Protection Clause” (Strauss. Glennon. 480)? Since Brown, the Court has attempted to answer this question with continuing problems and conflicts in the cases of Washington v. Davis and McCleskey v. Kemp.
Twenty-two years after Brown the court developed an answer to Strauss’ question when it applied a narrow standard for discriminatory intent in order to approach cases that dealt with the Equal Protection Clause. Washington v. Davis debated the use of a test that was administered to applicants to the Washington, D.C. Metropolitan Police Department. The test was argued as discriminatory since more blacks failed to pass the test than whites, and that the material on the test had more to do with reading comprehension and writing skills than actual police work.
The court concluded that the test did not show any attempt to discriminate, and future appellants must show such an attempt in order for their case to be examined by the Court’s strict scrutiny in regard to the Equal Protection Clause. The Court’s decision embraces a minimal amount of invidious discrimination rather than improving upon the arguably weak principles that Brown established. In “Discriminatory Intent and the Taming of Brown” the same Strauss echoes this notion that, “of the several possible conceptions of discrimination, the Court chose the one that appeared to be the most determinate and the least far-reaching” (Glennon.480).
The role of the Court, in this case, proved to establish that strict scrutiny would not be used in future cases except when a statute itself was discriminatory. Daniel Ortiz describes the impact of this and other elements of the ruling in Washington v. Davis in “The Myth of Equal Protection” stating: the Supreme Court gave three reasons for requiring discriminatory motivation: precedent, institutional role, and the slippery slope. Ironically, the precedents on which it relied consisted of jury selection, voting, and school desegregation cases- contexts where today, at least, the Court does not require a meaningful showing of discriminatory motivation on the part of the government decision-maker (Glennon. 496).
While the court cites precedents as part of their motivation, they selected cases in which racial classifications were used but done so in a covert manner. In effect, the court was able to further narrow the results of Brown by using precedents which, according to Strauss, “the Equal Protection Clause prohibits only explicit classifications…facially neutral actions that are in fact not based on race” (Glennon. 486). The institutional role of the Court, in this case, is that the Court adheres to its policy that strict scrutiny will only be used in cases where discrimination is evident in a statute. Concerning the “slippery slope” that the Court incautious about, favouring a minority who did not gain an advantage from a facially neutral statute, could open the door to numerous other legal actions by those negatively affected by issues such as taxes and welfare. Therefore, these three reasons all further narrow the boundaries of the Equal Protection Clause since the ruling on Brown, and show a majority in the Court that is highly concerned with overbearing costs and time that further examination into the history of discrimination in legal policies would bring.
While the Court takes the “easy way out” in this case to avoid costs and questions that would be raised by a further investigation, Justice Stevens raises some interesting questions although he concurs with the decision on the case. Justice Stevens notes that often the discriminatory intent of a statute is only seen in its outcomes and that the Court is not examining discrimination thoroughly enough in regards to its current and past history in the country by only applying strict scrutiny to cases with invidious intent. Stevens criticizes Justice White’s view of making large, general statements to be applied to an array of cases in order to justify the police test in this case. Stevens further argues against White’s notion that since recruitment of black police candidates occurred, that the test is not discriminatory.
The arguments that Justice Stevens posses are adapted by the dissent in this case. Particularly the dissent focuses on the fact that the great difference in test scores between blacks and whites alone warrants strict scrutiny in this case because of inherent advantages within the test that whites have. Furthermore, the dissent notes that the administrators of the test knew of the racial discrepancies in the results but continued to use it. While both sides in Washington make valid points, the decision sets an increasingly narrow standard for future cases to be judged upon.
In McCleskey v. Kemp (1987) the Court once again examined the Equal Protection Clause in relation to invidious intent. The case involved an African-American, McCleskey, who was sentenced to death for the murder of a white person in Georgia. McCleskey claimed that his sentencing violated the Equal Protection Clause because more blacks received the death penalty in Georgia than whites in murder cases. A study of statistics, the Baldus Study, supported this claim by showing that in Georgia the death penalty was given in “22 per cent of the cases involving black defendants and white victims; 8 per cent of the cases involving white defendants and white victims; 1 per cent of the cases involving black defendants and black victims; and 3 per cent of the cases involving white defendants and black victims”(523-524). This study was used as the main piece of evidence for discrimination using race for McCleskey to argue for strict scrutiny to be applied in this case.
Applying the precedent of the Washington case, the majority opinion of the Court argued that any racial effects of action did not automatically deem it in violation of the constitution. Under the ruling of the Court McCleskey would have had to prove that discriminatory purpose was the reason behind any actions, and each particular decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular offence”(524).
The majority further discredits the use of the Baldus study by asking for discrimination in this specific case rather than in general. By asking for specific discriminatory evidence in McCleskey the Court appears to contradict itself since it using its standards that were broadly written to apply broadly rather than specifically to cases. In addition, the majority of the Court simply disregards the history of racial discrimination in Georgia as additional evidence to support the use of strict scrutiny. Moreover, the fear of a “slippery slope” is once again on the minds of the majority because if their ruling favoured McCleskey it would open the door for any court decision to contend with respect to discrimination.
The dissent focuses on the majority’s fear of a slippery slope because the fear of additional legal challenges to rulings on cases where some discriminatory factor is present should not be reason enough to dismiss McCleskey’s claims. The dissent believes that doing so is in violation of his rights. In addition, the dissent argues against the majority opinion that the Court should not determine the punishments for crimes since the legislative bodies are concerned with that aspect of the law. Dissenting Justices argue that “the majoritarian chorus may not alone dictate the conditions of social life. The Court thus fulfils, rather than disrupts, the scheme of separation of powers by closely scrutinizing the imposition of the death [penalty]” (528-529).
The dissent has several solid arguments that are not brought into account: the history of racial discrimination in Georgia, the Baldus Study, and the majority’s fear that “McCleskey’s claim would open the door to widespread challenges to all aspects of criminal sentencing,” but nevertheless the Court continues to avoid using strict scrutiny as it continually becomes more narrowly applied (526).
In conclusion, we have seen the Court attempt to direct the Equal Protection Clause to bring change to civil rights and impact a society whose legislation and beliefs might not have been ready for such dramatic change in Brown v. Board of Education. While the Court’s ruling, in this case, did bring about radical social change it did not set a framework for itself on how future discriminatory cases were to be clearly judged. The court continued to narrow its interpretation of racially discriminatory cases as we see in the Washington case. In this case, the Court required evidence of discriminatory intent in the police test and ignored any possible action regarding the imputation of inferiority. The Court further continues to narrow its scope in the McCleskey case by throwing out statistics and historical evidence of discrimination due to its fear of “slippery slopes” and therefore it fails to view this case with the highest scrutiny. l
Since the Court has not taken a solid position in regards to racial discrimination, as we have seen through these three cases, it continues to attract controversy in its rulings and interpretations of the Fourteenth Amendment. Due to the continually narrow path the Court has taken in regards to the Equal Protection Clause and its applications in these cases, the Court has been influenced by an underlying fear of slippery slopes both socially and legally and continues to struggle without any clear interpretation and stance on discrimination.
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