In 1971 William Rehnquist faced a bruising confirmation hearing for a seat on the United States Supreme Court. Seventeen years earlier, in Brown v. Board of Education of Topeka, the Court had ruled that state-sponsored segregation of schools was unconstitutional. But in 1952, as a clerk for Justice Robert Jackson, Rehnquist had written a memo defending the separate-but-equal doctrine that Brown overturned. “I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed,” Rehnquist wrote.
At his 1971 hearing and again in 1986, when he was nominated for chief justice, Rehnquist insisted that the memo was meant to reflect Jackson’s opinion rather than his own. The claim was “incredible on its face,” as Jackson’s former secretary told reporters, and almost surely false. But the outcry against the memo—and Rehnquist’s need to distance himself from it at two different confirmation hearings—spoke to the powerful bipartisan consensus around Brown v. Board of Education. It had become a sacred text in our civic religion, joining the Declaration of Independence and the Constitution as one of the documents defining the nation itself. No matter from what party or race or religion, it seemed, Americans knelt at the altar of Brown.
That may no longer be true. At their confirmation hearings this spring, two of President Trump’s nominees for federal judgeships refused to say whether they believed Brown was correctly decided. Wendy Vitter and Andrew Oldham both told the Senate Judiciary Committee that it would be inappropriate for them to express personal opinions about the case, even though Rehnquist and a long line of other nominees had done precisely that; as recently as 2006, Samuel Alito (for whom Oldham later clerked) said in his confirmation hearing that Brown was “one of the greatest, if not the single greatest thing that the Supreme Court of the United States has ever done.” Whatever he actually believed, Rehnquist couldn’t get confirmed to the Court without confirming his personal support for Brown. That doesn’t seem to be a job requirement for Vitter and Oldham.
It’s tempting to ascribe this changing standard to the resurgence of white racism in the Trump years, when formerly tabooed bigotries have received a new lease on life. But it’s also too simple. As the law professor Justin Driver notes in The Schoolhouse Gate, his history of the Supreme Court and education, “a tepid appetite for genuine racial integration in education” permeates our entire culture. Although races are no longer separated by law in our schools, the schools are more segregated than at any time since Brown.
There is little sustained effort to change that. In higher education, we have large initiatives…
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