Academic

Goldstein on Roberts on Brown

By Lawrence Solum

Joel K. Goldstein (Saint Louis University - School of Law) has posted Not Hearing History: A Critique of Chief Justice Robert's Reinterpretation of Brown (Ohio State Law Journal, Vol. 69, No. 5, 2008) on SSRN. Here is the abstract:

In the principal opinion in Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts invoked Brown v. Board of Education to bolster his view that the United States Constitution forbids the use of virtually all racial classifications. In its closing paragraphs, the plurality opinion claimed that the NAACP attorneys in Brown subscribed to an anticlassification view of the Constitution and that the Court adopted that view. Far from hearing history, the Chief Justice?s opinion sought to rewrite it. The discussion ignored the historic context in which Brown was argued and based its argument on extracting isolated sentences from the attorneys? argument from their linguistic context. The discussion of Brown advanced a fallacious reading of the opinion. The discussion, though a relatively small part of the opinion, reflected a distressing and opportunistic use of history in an effort to justify a ?color blind? vision of the Constitution. Rather than manipulating history to support doctrinal preferences, constitutional argument is more likely to produce enlightened doctrine, in this and other areas, if it addresses the moral and pragmatic considerations underlying competing positions.

Full post as published by Legal Theory Blog on May 14, 2009 (boomark / email).