Rubin and Elinson on Anatomy of Judicial Backlash: Southern Leaders, Massive Resistance, and the Supreme Court, 1954-1958 @LSI_Journal @NIU_Law @UChicagoPoliSci

ICYMI: Ruth Bloch Rubin, University of Chicago, and Gregory Elinson, Northern Illinois University College of Law, have published Anatomy of Judicial Backlash: Southern Leaders, Massive Resistance, and the Supreme Court, 1954–1958 at 43 Law & Soc. Inquiry 944 (2018). Here is the abstract.

Exploiting a range of archival materials, we argue that state-level variation in judicial backlash to Brown was as much the result of strategic choices by southern political elites as it was the ingrained prejudices of the region’s white voters. Presenting case studies of massive resistance in Mississippi, Louisiana, Virginia, and Arkansas, we show that elite agency profoundly shaped the patchwork development of grassroots resistance to integration across the South. These findings challenge the prevailing view that backlash to Brown signaled the unequivocal triumph of racial conservatives. Rather, we argue that the region’s response offered individual members of the southern elite significant autonomy to direct massive resistance in their home states. We also argue that southern lawmakers were responsible for the South’s embrace of popular constitutionalism post-Brown, and thus that it may not have been “popular” at all. We conclude that studies of judicial backlash would do well to reevaluate the assumption that backlash is necessarily a grassroots phenomenon.

Download the article from SSRN at the link..

Rutherglen on Reconstruction in Legal Theory

George A. Rutherglen, University of Virginia School of Law, has published Reconstruction in Legal Theory as Virginia Public Law and Legal Theory Research Paper No. 2019-20. Here is the abstract.

Reconstruction and the Civil Rights Era did not make a significant appearance in legal theory until the eve of Brown v. Board of Education. The reconstruction accomplished by legal theory was internal to legal theory itself, as it was in philosophy as a whole. Methods of judicial review and processes of legal reasoning came in for criticism and revision, just as the aims and methods of philosophy did so. Legal theory took a turn towards legal positivism and legal realism, neither of which had much patience with the normative claims underlying civil rights. Nor did philosophy as it fell under the influence of logical positivism and its skepticism of normative claims generally. This essay describes this historical pattern, in which the neglect of civil rights in legal theory paralleled the neglect in constitutional law, only to be suddenly transformed by Brown v. Board of Education. Civil rights went from the status of a neglected stepchild in legal theory to the heir apparent of judicial review. Legal theories could no longer ignore principles of racial equality but instead had to take them as axiomatic.

Download the article from SSRN at the link.

Pye on African-American Lawyers and the Civil Rights Movement Before Brown v. Board of Education

David Kenneth Pye has published Before Civil Rights Was in Vogue: The Black Lawyer Before Brown. Here is the abstract.

Scholars cannot become too infatuated with Equal Protection arguments. Doing so blinds them to the various tactics employed by the pre-Civil Rights Movement African American bar to combat racial segregation and discrimination. Ignoring the actual arguments of historical actors is a form of teleology, in which we allow our knowledge of the present to direct how we interpret the past. History becomes less objective when done in this manner. Moreover, lawyers of today, when presented with teleological scholarship, can remain blind to possibilities open to them to defend clients in the embattled black community and beyond.

Download the article from SSRN at the link.

The Supreme Court's Christmas Party Guest List: 1947 and 1959

Ross E. Davies, George Mason University School of Law; The Green Bag, has published A Christmas Gift for the Supreme Court: How a 1959 Holiday Party Eclipsed a History of Discrimination at 17 Green Bag 2d 311 (Spring 2014).

On December 28, 1959, the New York Times published a little news item that was, in hindsight, both (1) a public relations triumph for Banning E. “Bert” Whittington, the U.S. Supreme Court’s Press Officer at the time, and (2) a jurisprudential and institutional relief for the Court. COURT DEFIES PRECEDENT: “One of the last institutions holding out against the Christmas Party succumbed last week. The Supreme Court had a pleasant but sober affair arranged by its press officer, Banning E. Whittington. Five of the Justices – Hugo L. Black, Felix Frankfurter, William O. Douglas, William J. Brennan Jr. and Potter Stewart – joined the small staff of employes. There were fruit punch, cookies and carols by a high school group, with some audience singing, too.” The story has a tone that should ring familiar in the ears of modern consumers of Supreme Court news reporting: good-natured indulgence of that somewhat dull, somewhat behind the times, somewhat culturally clueless wallflower among our great institutions of national government. But the background to that story suggests that the Court was not at all clueless in 1959. Indeed, the Court’s handling of that Christmas party, and the Times coverage of it, may have helped the Court occupy the high ground during its continuing campaign in the 1960s against racial discrimination.

Download the full text of the article from SSRN at the link.

A very interesting sidelight on the Court during a turbulent decade. 

Chen on Poetic Justice in Brown v. Board of Education

Jim Chen (law, Minnesota), has posted Poetic Justice, 29 Cardozo L. Rev. __(2007) on SSRN. From the abstract:

"All deliberate speed," the remedial formula adopted in Brown v. Board of Education, 349 U.S. 294 (1955), has a singularly interesting literary lineage. Contrary to Justices Holmes and Frankfurter's assumption, "all deliberate speed" is not a phrase from the traditional language of the English Chancery, but rather a variant on a line from an 1893 poem by Francis Thompson, "The Hound of Heaven." How Thompson's line, "Deliberate speed, majestic instancy," came to dominate one of the defining moments in American constitutional law represents a unique instance of not law-in-literature or law-as-literature, but literature-as-law. By turning our analysis away from the romanticized origins of "all deliberate speed" in a Chancery practice that never existed and toward the real poetry of Francis Thompson, we may glimpse how "all deliberate speed" and the Brown litigation achieved a measure of poetic justice. Brown II's instruction that public school districts dismantle desegregation with "all deliberate speed" gave Brown I's vision of equal justice under law enough time and enough legitimacy to enter the hearts and minds of the American people in a way unlikely ever to be undone.