Precedent in Doubt?: Brown v. Board of Education in Recent Judicial Confirmations

M. Christian Green

Cover Image: Little Rock Nine Memorial. Little Rock, AR. Wikimedia Commons.

We have witnessed a curious pattern emerging in many recent confirmation hearings for federal judicial nominees. Beginning first with the Senate confirmation hearings of nominee Wendy Vitter, recently appointed to a federal judgeship in the United States District Court for the Eastern District of Louisiana, many nominees have declined to discuss whether the United States Supreme Court’s landmark 1954 school desegregation decision in Brown v. Board of Education of Topeka was correctly decided. In declining to state their position, the nominees themselves appeared to cast doubt on the correctness of the Brown decision, which in overturning the odious 1896 precedent in Plessy v. Ferguson’s doctrine of “separate but equal” accommodations based on race, has been widely heralded in U.S. law, politics, and society as an example of the arc of justice bending ever forward.

Jurisprudential skepticism about Brown is not new. The decision, written by then Chief Justice Earl Warren, was criticized by several of Warren’s Supreme Court colleagues at the time it was handed down. Subsequent Supreme Court justices, including William Rehnquist and Clarence Thomas, have offered their own critiques of the decision’s reasoning. Some legal theorists of an originalist interpretive stripe have criticized Brown as inconsistent with the original meaning of the Fourteenth Amendment’s guarantee of equality. Others have challenged the Brown court’s resort to and interpretation of extralegal psychological data, particularly the work of educational psychiatrists Kenneth and Mamie Clark, on the effects of segregation on schoolchildren. Still others have viewed the decision as an instance of judicial activism in which the court leaped out too far in advance of society for the time, in a manner that would eventually require two more decisions in 1955 and 1978, as well as further political wrangling before the letter and spirit of the Court’s ruling were fully implemented in the Topeka school district in 1999. The Brown decision, if nothing else, was a testament to the length of the arc of justice. But the debate around the decision and its landmark status have also raised important questions about precedent, interpretation, and the rule of law—questions that go to the heart of the fields of law and religion.

On May 17, 1954, the Warren Court ruled unanimously that racial segregation in public schools was unconstitutional. Wikimedia Commons.

Law and religion share common concerns for and similar methods of hermeneutics, or the interpretation of texts. Hans-Georg Gadamer was a twentieth-century German philosopher and scholar of hermeneutics who was well read in the fields of both law and religion. In his foundational treatise, Truth and Method, Gadamer developed a theory of hermeneutics that responds to what he perceived to be a particular kind of “prejudice” that interpreters of texts bring to the table when they read and study. Gadamer challenged a prevailing nineteenth-century theory of interpretation, defended especially by the Protestant theologian Friedrich Schleiermacher, that “everything important can be understood only if we understand the mind of the author” by overcoming our own prejudices and focusing on the meaning the author was attempting to convey.1Hans Georg Gadamer, Truth and Method 181 (Joel Weinsheimer & Donald G. Marshall, trans., 2d ed., 2004). Today’s legal theorists will sense a certain resonance between this approach and modern methods of legal interpretation that focus on the original intent of statutes or legislators. Indeed, legislative history is often invoked by critics of the Brown decision, who claim that construing the Fourteenth Amendment’s equal protection clause as prohibiting racial segregation in schools clearly offends the original intent of the drafters of the amendment, many of whom were segregationists themselves.  Both Schleiermacher’s general theory of interpretation and contemporary legal intentionalism suggest that that historical interpretation entails somehow closing one’s eyes to the present and imaginatively transposing oneself into the past—into the minds of the eighteenth-century constitutional framers or the nineteenth-century drafters of the Reconstruction Amendments, rather than dealing with more immediate and contemporary concerns in the case at hand.

For Gadamer, such methods of interpretation have serious limits. Gadamer argued, that “[i]t certainly makes a difference whether one is trying to understand a text’s intention and form as a literary structure or whether one is trying to use it as a document in investigating a larger historical context.”2Hans Georg Gadamer, Truth and Method 198 (Joel Weinsheimer & Donald G. Marshall, trans., 2d ed., 2004). When it comes to the sort of history embodied in legal precedent, the situation becomes even more challenging, since all interpreters are unavoidably situated in history, and thus form links in a chain of interpretive understanding informed by perspective and prejudice.

Applied to law and constitutionalism, Gadamer’s theory justifies a method of interpretation that allows for critical reassessment of precedent in a way that is congenial with liberal notions of a “living constitution.” But it is significant that the jurisprudential applications of his theory emerge from a concern that Enlightenment liberalism inappropriately cuts itself off from sources of value like “tradition, morals, religion, and law.”3Hans Georg Gadamer, Truth and Method 239 (Joel Weinsheimer & Donald G. Marshall, trans., 2d ed., 2004).  Enlightenment prejudice against religion is, it turns out, the “prejudice” that Gadamer interrogates in his discussion of hermeneutics and the social sciences. Gadamer seeks to balance the authority of traditions with the human interpretive capacity for evolution and change.

While our knowledge always reflects our “thrownness” into the world and our situated-ness in particular times, places, and cultures, we are also capable of “projecting” ourselves forward conceptually into new understandings based on our interpretation of new information and new worlds before us.

What Gadamer ends up saying, at least to his more constitutionally liberal interpreters, is that in terms of human epistemology, while our knowledge always reflects our “thrownness” into the world and our situated-ness in particular times, places, and cultures, we are also capable of “projecting” ourselves forward conceptually into new understandings based on our interpretation of new information and new worlds before us. In this context, the recent reticence of federal judicial nominees to comment on Brown v. Board of Education becomes problematic. The refusal of nominees to unveil to the public the “prejudices” that shape them, and their hesitancy to give the public a sense of their capacity for forward projection of the law leaves us with very little to go on in assessing the method by which potential judges will critique current precedent or the truths that they discern between understanding and interpretation.

The law, as a human science, is a means and process by which fact, value, and morality are applied as judges engage in moral as well as legal interpretation of the cases and precedents before them in a system based on the rule of law. The recent reticence of judicial nominees to make transparent the bases of their critical understandings and interpretations of precedent and the rule of law in connection with landmark cases like Brown, obscures and casts doubt on their commitment to these bedrock principles and practices of American jurisprudence. As citizens who will live under the laws they interpret and apply, we are entitled to know what prejudices federal judicial nominees may be bringing to the bench.


M. Christian Green is a senior editor and senior researcher at the Center for the Study of Law and Religion. Her areas of scholarly expertise are law, religion, human rights, and global ethics.