How Long Must We Keep A Straight Face?

As I mentioned yesterday, Leah Litman gave a rare commencement speech that is actually worth hearing/reading, and it’s only more resonant with Amy Chua’s special snowflake getting rewarded for her mother’s dishonest shilling for her new boss. There’s a lot to talk about — I suspect Paul will have some thoughts as well — but I wanted to focus on this:

But as all of these examples also illustrate, your degree also allows you to do harm–and to provide reasons why justice should not prevail. There were lawyers–there are lawyers– on the other sides of those cases too.

After Brown, it was lawyers–law professors who argued the decision was wrong because it favored blacks over whites. These lawyers convinced themselves that Brown was wrong because it did not offer a “neutral principle” that gave as much consideration to white people as to black.

As some of you will have already recognized, Litman is subtweeting Herbert Weschler, whose 1959 Holmes Lecture at Harvard Law School became “Toward Neutral Principles of Constitutional Law,” one of the most cited law review articles ever. The core argument was that the pro-civil rights decisions of the Vinson and Warren Courts were unsound:

This was an argument made by one of the most influential legal adacemics in America in 1959 in a very widely cited article true story pic.twitter.com/N4cqXkmi8r— Scott Lemieux (@LemieuxLGM) June 9, 2019

If you’re a lay person reading this for the first time, your first instinct will presumably to be amazed that this was taken seriously by anyone, let alone be widely discussed and influential. Segregation is not a question of “discrimination” at all? He, an affluent white lawyer, is just as injured by segregation as his African-American colleague? The equal protection clause of 14th Amendment is neutral between the equal citizenship of African-Americans and the “freedom of association” of whites? Only what kind of “freedom of association” involves the state using its coercive authority to prevent any individual of one race from associating with any individual of another race? And…you are correct! These arguments were very stupid. It is amazing that they were taken seriously by anyone who wasn’t a hardcore segregationist. And yet, these views were not uncommon. There was a lot of hand-wringing in the legal academy over the Warren Court (and this was at a time when it wasn’t even all that liberal on balance.) And despite the ultimate unanimity, apart from Warren, Douglas and Black [ETA: as Joe points out in comments, this is unfair to two of Truman’s crony appointments; Burton and Minton both voted to overrule separate-but-equal at the 1952 conference] the members of the Supreme Court agonized for three years over Brown.

Weschler’s article did, however, lead to one of the greatest law review articles of all time, Charles Black’s “The Lawfulness of the Segregation Decisions”:

With a neoconfederate Supreme Court now firmly entrenched, and likely to get even worse before it gets better, we will see how many legal scholars will find convoluted reasons to avoid stating the obvious. As Mark Tushnet observed after Bush v. Gore, the temptation to rationalize even the decisions that are most obviously beyond rationalization can be strong. To be sure, many legal scholars will clearly explain what’s going on when a bare majority of the Roberts Court relies on century-old precedents written by racist judges to uphold racist laws passed by racist legislators to uphold the flagrantly racist executive actions of their party’s president and then in a climactic act of gaslighting purports to overrule the anti-canonical precedent whose logic it repeats with almost eerie similarity. But some won’t.

The Roberts Court has provided many occasions where the sovereign prerogative of the philosopher is the only adequate response. To treat the holding that, say, Congress forfeits its 15th Amendment enforcement authority if its remedies are too effective as if it was a legal argument worthy of engagement on these terms is making a category error. But there will always be fancy lawyers who will find reasons to keep their faces straight.