Bolling V. Sharpe - 14th Amendment equal protection federal via 5th Amendment

• 1954. SCt unanimously held school segregation in D.C. unconstitutional.

• Applied similar reasoning of Brown regarding 14^th Amendment to the federal government, and seemed to incorporate the 14^th Amendment’s equal protection clause into the 5^th Amendment.

• According to Guido Calabresi, this case, not Korematsu, is the decision that caused Justice Black the deepest pangs of conscience at the end of his life.

• Bork’s critique of Bolling:

• If SCt were guided by USC, it would have had to rule that it had no power to strike down D.C.’s laws.

• Instead, it seized upon due process clause of 5^th Amendment, which does apply to federal government, and announced that this due process clause included the same equal protection of the laws concept as the equal protection clause of the 14^th Amendment.

• This reasoning rested on no precedent or history. In fact, history compels the opposite conclusion. Framers of 14^th Amendment adopted due process clause of 5^th Amendment but though tit necessary to add the equal protection clause, obviously understanding that due process, the requirement of fair procedures, did not include the requirement of equal protection in the substance of state laws.

• Thus, Bolling was a clear rewriting of USC by Warren Court. Bolling was a substantive due process decision in same vein as Dred Scott and Lochner.

1. Only justification offered in opinion was that it would be unthinkable that the states should be forbidden to segregate and the federal government allowed to.

2. This was indeed unthinkable as matters of morality and politics. Most certainly, Congress would not and could not have permitted that ugly anomaly to persist, and would have had to repeal D.C.’s segregation statutes. But there is no way to justify Warren Court’s revision of USC to accomplish its reforms.

• Koppelman’s critique of Bork.

• Bork anachronistically uses framers’ intent of 14^th amendment as guide to interpreting 5^th amendment (an objection that can be made against Bolling).

• Bork offers no evidence to support his speculation that Congress “would have had to repeal D.C.’s segregation statutes.” In fact, after Brown, Senate came within one vote of stripping SCt of jurisdiction over segregation cases.

• Nonetheless, Bork’s basic point is sound. It is hard to justify Bolling on any basis other than substantive due process. Does this mean (as Bork claims) that the case is wrongly decided? Is SCt’s holding defensible? On what basis?

Brown II

• Warren 1955. Background. SCt in Brown I, by pronouncing official segregation to be a violation of equal protection, did not by that pronouncement alone do much to modify the actual educational patterns of Kansas or any other state. It has only been by a long series of “implementation” decisions that a significant reduction in school segregation has come about.

• The first of these implementation decisions was a continuation of Brown itself. In Brown II, SCt did several significant things:

• Lower federal courts. It gave the federal district courts primary responsibility for supervising desegregation because of their “proximity to local conditions” and the “possible need for further hearings.”

• Equitable principles. The SCt gave no precise guidelines for carrying out desegregation. Instead, it directed the district courts to use “general equitable principles.”

• “All deliberate speed”:

1. A plaintiff whose constitutional rights have been violated by state action would normally be entitled to immediate relief. But, apparently because it feared the chaos and violence that might develop if attempts were made to carry out desegregation instantly, SCt authorized the district courts to take into account the public interest in eliminating desegregation “in a systematic and effective manner.”

2. SCt held that school desegregation should proceed, not immediately, but “with all deliberate speed,” in order to enable authorities to cope with “complexities arising from the transition to a system of public education freed from racial discrimination.” Among the factors the SCt deemed relevant was “the physical condition of the school plant.” However, the burden of proving any need for delay was placed upon the school boards.

3. Critique of SCt’s “with all deliberate speed” holding:

1. Richard Wasserstrom argues this holding was “a fantastic nonsense.” There was nothing so complicated about the dual school systems of the southern states that they could not have been desegregated immediately: it would have been easy enough to order that each student attend the nearest school. He concluded the SCt may unconsciously have been influenced by the fact that “the black schools throughout the South were utterly wretched when compared to the white schools.” SCt was simply unwilling to order white children to go to those schools. “SCt’s solution assumed that the correct way to deal with this problem was to have black children go to their schools until the black schools were brought up to par or eliminated.

2. If Wasserstrom is right, what does that imply about the judiciary’s supposed role as neutral umpire of the political process, policing that process for invidious racist influence?

• Casebook notes make clear that Brown accomplished little until Congress and Presidency decided to put their own weight behind school desegregation.

• What does this suggest about the efficacy of judicial review?

• There is lively debate among proponents of racial equality about whether Brown did more good than harm.