"Dear Justice Thomas, I'm Sorry You're a Shilling Asswipe, Love Anita Hill"

[Measure_for_Measure]

Perhaps the “Principles First, Last and Always” crowd could explain to me how the courts should apply antitrust law without reference to empirical reality. Ditto for the Clean Air Act or various environmental laws.

@Richard Parker

When I talk about the court making social policy, I mean when the court does so intentionally instead of just trying to interpret the law. I believe that’s the debate we’re having here. I don’t think anyone believes that the court can prevent judicial decisions from having an effect on social policy. The argument is about intentions, not effects.

I suspect that the writers of Brown v Board of Ed believed they were deciding a matter of law. Do you have evidence to the contrary?

Sure the format of the decision was a little different. But heck, it was touching on some rather central aspects of human rights and the US Constitution.

[Princhester]

@Princhester

He want’s not to be “that Supreme Court Justice who sexually harassed that woman”.

While I want not to be known as the poster who includes grocers’ apostrophes.

[ianzin]

Just wanted to say that I thought Sampiro’s recap of the whole affair was beautifully well-written. I didn’t understand ‘p.o.d’ but that doesn’t matter. Exquisite prose, sharp style, wit to spare. Great stuff, and a very handy refresher course for people like me who only have a dim recollection.

[Richard_Parker]

@Measure for Measure

Perhaps the “Principles First, Last and Always” crowd could explain to me how the courts should apply antitrust law without reference to empirical reality. Ditto for the Clean Air Act or various environmental laws.

There are times when the court is forced to consider consequences, of course. This is because sometimes the court is trying to further the intent expressed in the text of the law (or the intent as reflected in some other document, like Congressional statements). To do so, the court must ask which ruling would do so. But that is different from asking what choice would best further the justice’s own sense of what they ought to do.

@Measure for Measure

I suspect that the writers of Brown v Board of Ed believed they were deciding a matter of law. Do you have evidence to the contrary?

Aside from the text of the decision you mean? The fact is that the court carefully decided on a policy that they thought would be gradual enough to prevent widespread rebellion in the South, yet strong enough to eventually achieve desegregation.

From a good article on the matter:

The Supreme Court endorsed a formula of gradual desegregation that provided the opportunity for massive resistance in the Deep South and for token desegregation elsewhere. As the failure of Brown became increasingly apparent, the Supreme Court endorsed more aggressive remedies for segregation, including substantial judicial supervision of the operation of schools.

And:

Frankfurter believed that he, better than his colleagues, could devise a solution to the problems he envisioned that would appeal to the more moderate white Southerners who Frankfurter took as his audience, and he needed a gradualist formulation to overcome the difficulties that Justice Jackson’s acute analysis had posed for him. Black and Douglas, who Frankfurter derided as the “great libertarians,” had a better understanding of the South. They believed, correctly, that all the Court could accomplish in the short run was a clear statement of fundamental principle regarding the unconstitutionality of segregation. The clearer the statement, perhaps the more effective the long run educational impact of the Court’s decision. But, for Black and Douglas, in the short run only a few African-Americans were likely to be admitted to desegregated public schools in the deep South; there was no reason to appease Southern sentiment through a gradualist decree, and much risk to the courts if they got into the business of government by injunction. Experience proved Black and Douglas to be correct, but, perhaps paradoxically, the failure of the gradualist remedy in Brown II led to a substantial expansion of the role of the judiciary in the United States.

Mark Tushnet, What Really Happened in Brown v. Board of Education, 91 Colum. L. Rev. 1867 (Dec. 1991).

[Measure_for_Measure]

@Richard Parker

The fact is that the court carefully decided on a policy that they thought would be gradual enough to prevent widespread rebellion in the South, yet strong enough to eventually achieve desegregation.

Thanks for the thought provoking cites and response RP. I agree that the courts should not base their decisions purely on personal principles.

But I find the Brown example puzzling. That segregation conflicted with equal protection in practice was partly an empirical matter but surely an evaluation well grounded in the 14th amendment. But since this realization flew in the face of precedent stretching back to Plessy, it seems to me reasonable – and consistent with humility and restraint – to craft the transition away from segregation with an eye towards the likely consequences of the decision.

Separately, courts can and do balance the effects of probable civil strife against the advantages of liberty.
Now maybe the courts made the wrong empirical call in Brown (I lack the knowledge to evaluate whether, “Experience proved Black and Douglas to be correct…”) But I fail to see how completely ignoring empirical considerations might be consistent with either judicial humility or restraint. And once you admit observation, then the courts become policy makers.

To summarize: it is appropriate for courts to be involved with policy and this is a natural outgrowth of a realistic, humble and restrained interpretation of law and precedent.

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Caveat: IANAL and it has been years since I’ve read excerpts from the Brown decision. I have the strong suspicion that I don’t have sufficient background to perceive some very relevant differences between the reasoning in Brown and other Supreme court decisions.

PS: RL will take me away from this board in a couple of days. Thanks again for the interesting response.