tag:blogger.com,1999:blog-7321349.post5961860139101322009..comments2024-03-18T22:21:33.261-07:00Comments on The Debate Link: The Desegregation Opinions: Justice Thomas' ConcurrenceDavid Schraubhttp://www.blogger.com/profile/04946653376744012423noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-7321349.post-31825657505543416032008-09-27T01:26:00.000-07:002008-09-27T01:26:00.000-07:00Citing a 28 year distant dissent doesn't establish...Citing a 28 year distant dissent doesn't establish original public meaning any better than it does original intent, so I fail to see the relevance here.David Schraubhttps://www.blogger.com/profile/04946653376744012423noreply@blogger.comtag:blogger.com,1999:blog-7321349.post-4904905641292062902008-09-27T00:08:00.000-07:002008-09-27T00:08:00.000-07:00"Justice Thomas is an originalist--I can criticize..."Justice Thomas is an originalist--I can criticize him for not adhering to his own doctrine. Citing a dissent 28 years after the ratification of the 14th Amendment doesn't establish original intent and you know it."<BR/><BR/>Yes, this is 'original intent originalism'. And under it Brown v. Board of Education was wrongly decided. But Justice Thomas may be a supporter of 'original public meaning originalism'albert venn diceyhttps://www.blogger.com/profile/09944869960763017999noreply@blogger.comtag:blogger.com,1999:blog-7321349.post-23480616160996067032007-06-29T11:02:00.000-07:002007-06-29T11:02:00.000-07:00Corrected, thanks for the catch.Corrected, thanks for the catch.David Schraubhttps://www.blogger.com/profile/04946653376744012423noreply@blogger.comtag:blogger.com,1999:blog-7321349.post-42889616343721289662007-06-29T10:45:00.000-07:002007-06-29T10:45:00.000-07:00You said that Justice Thomas' second point "merely...You said that Justice Thomas' second point "merely shows that <I>de jure</I> segregation is more nebulous and more difficult to identify the cause of and solution to." <BR/><BR/>I think you meant <I>de facto</I> segregation.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-7321349.post-52853134996170722722007-06-29T08:52:00.000-07:002007-06-29T08:52:00.000-07:001) Brown v. Board never even mentions Harlan's dis...1) <I>Brown v. Board</I> never even mentions Harlan's dissent in <I>Plessy</I>, or "colorblind" in any fashion whatsoever. In fact, at 494-95, the Court explicitly rejects the reliance on "the extent of psychological knowledge at the time of Plessy v. Ferguson...." and thus proclaims that "<I>Any</I> language in Plessy v. Ferguson contrary to this finding [that segregation hurts Black children] is rejected." (emphasis added) While I doubt Harlan's dissent was targeted by this rhetoric, insofar as it is covered by under it, I think it applies.<BR/><BR/>2) Unlike myself or C.J. Warren or Thurgood Marshall, Justice Thomas is an originalist--I can criticize him for not adhering to his own doctrine. Citing a dissent 28 years after the ratification of the 14th Amendment doesn't establish original intent and you know it.<BR/><BR/>3) The Thurgood Marshall reference is particularly odd, because its not like he curled up and died the day <I>Brown</I> was announced. He had a long and productive career in law post-<I>Brown</I>, including (survey says...) time on the Supreme Court. It is beyond clear, from his opinions in <I>Bakke</I> and others, where he would have fallen on this case.<BR/><BR/>Why the discrepancy for Marshall then? Two answers spring to mind.<BR/>a) Litigation strategy: <I>Brown</I> was already a huge blockbuster. You don't take what already would be a revolutionary court opinion and then try and argue its actually <I>more</I> expansive than everyone thought. <I>Brown</I> was not a sure-thing--the first vote among the justices (when Vinson was still C.J.) had it going the other way. Discretion is the better part of valor.<BR/><BR/>b) Experience: Perhaps Marshall genuinely thought color-blindness would be sufficient. Living in the world for the next 20 years, he, along with all the rest of us that were paying attention to segregation patterns, realized that it wasn't, and that the previously connected threads of "desegregate the schools" and "be color-blind" were actually in tension. The question is which holding was more central to <I>Brown</I>.<BR/><BR/><I>Brown's</I> holding was explicitly premised on the <I>segregation</I>, not the <I>classification</I>: "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment." (347 U.S. 483, 495). Hence, I believe that, insofar as there is a conflict, the core holding of <I>Brown</I> focuses on racial <I>segregation</I>, not racial <I>classification</I>.David Schraubhttps://www.blogger.com/profile/04946653376744012423noreply@blogger.comtag:blogger.com,1999:blog-7321349.post-91951768302166037472007-06-29T06:16:00.000-07:002007-06-29T06:16:00.000-07:00I take it you have never read the opinion in Brown...I take it you have never read the opinion in Brown v. Board of Education -- after all, it, like the Thomas concurring opinion, draws heavily from Harlan's dissent in Plessy. You cannot criticize Thomas for using it without implicitly criticizing Earl Warren for doing the same (and Thurgood Marshall for his use of the Harlan dissent in his Brown brief).Anonymousnoreply@blogger.com