Playing Make-Believe

Published May 12, 2005

National Review Online

Obituaries reporting the recent death of educational psychologist Kenneth B. Clark have quite properly highlighted the influential role that his research played in the Supreme Court’s landmark 1954 ruling in Brown v. Board of Education. Clark studied how black children described black and white dolls and concluded from their more favorable reaction to white dolls that black children regarded themselves as inferior. The Court in Brown cited his findings — and other “modern authority” on “psychological knowledge” — in determining that segregated public schools “generate[] a feeling of inferiority as to [black children’s] status in the community.” For that reason, the Court ruled, segregated public schools are “inherently unequal” and violate the Fourteenth Amendment’s guarantee of equal protection of the laws.

The compelling moral case for the result in Brown has muffled contemporary discussion of the serious defects in its methodology. The Left’s current interest in Brown is in asserting that originalism — the traditional method of construing the provisions of the Constitution according to their original meaning — could not have produced Brown‘s mandate to end segregated schools and must therefore be regarded as illegitimate. As I discuss here, that assertion is wrong. But there has been much less scrutiny of the actual reasoning of Brown. This is unfortunate, for although Brown‘s bottom-line result is both morally sound and legally right, the methodology of Brown illustrates — and has spawned — two characteristic operational defects in non-originalist decision-making.

The first of these defects is that the Supreme Court’s reasoning often is indeterminate and unworthy of being taken seriously as law. In Brown itself, are we to believe that the justices’ thinking actually rested on modern psychological research like Clark’s? Isn’t it telling that the Court does not even attempt to explain the less-than-obvious connection between how a black child describes black and white dolls and the relative effect of integrated vs. segregated schools on that child’s “feeling of inferiority”? What if research a few years later showed that integrated schools increased black children’s “feeling of inferiority”? Are we to suppose that the Supreme Court might have overturned the decision in Brown? If so, should we respect a methodology that yields results that are so flimsy? And, if (as seems surely the case) differing social-science data would never result in the overturning of Brown, doesn’t that show that the purported reasoning is entirely makeshift?

This defect in the Court’s reasoning is perhaps most clearly manifested in the absurd postmodernist proclamation set forth in the 1992 Casey abortion case (and reiterated without embarrassment in the 2003 Lawrence decision inventing a constitutional right to homosexual sodomy) that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this infamous “mystery” passage really means, of course, is that five justices will consult their own whims and preferences to define for all Americans which legislated crimes will be magically transformed into constitutional rights.

The second, more subtle defect in Brown is the Supreme Court’s disinclination to reexamine its own dubious precedents on the meaning of the Constitution. Contrary to the conventional understanding, the Court in Brown did not purport to overrule its infamous 1896 ruling in Plessy v. Ferguson, which established the “separate but equal” doctrine and allowed segregated streetcars. Rather, the question that the Court defined for itself was merely “whether Plessy v. Ferguson should be held inapplicable to public education.” The Court’s cursory and muddled discussion of its “inconclusive” “investigation” into the original understanding of the Fourteenth Amendment strongly suggests that that investigation was not undertaken with any rigor or vigor. And its resulting refusal to revisit Plessy left its decision resting on contestable and unconvincing social-science data rather than on firm constitutional principle.

Again, this excessive adherence to erroneous precedent is prominent in Casey, where the Court set forth at length its bizarre view that the very fact that a decision has aroused intense criticism is somehow a strong reason that the decision, even though wrong, should not be overruled: “to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.” In short, the Court was more concerned with managing imagined perceptions of its own legitimacy than with construing the Constitution correctly. As Justice Scalia, in dissent, aptly put it: “The Imperial Judiciary lives.”

The Supreme Court earned tremendous moral capital from the just and right result it reached in Brown — a result that this country’s political leaders did not have the courage to achieve. Unfortunately, over the last several decades the Court has squandered that moral capital by repeating the methodological defects of Brown in furtherance of results that are plainly inconsistent with the text and structure of the Constitution (as well as — in cases like Roe v. Wade — contrary to elemental justice). The Court has gone from relying on research about playing with dolls to playing its own elaborate game of make-believe jurisprudence. And, although the Court’s respect for its own precedent has been unprincipled and inconsistent, it has too often elevated adherence to its own wrong or dubious precedents above its obligation to faithfully construe the Constitution.

Contrary to the Left’s misuse of Brown, the real lesson to be drawn from its unhappy methodological legacy is the urgent need for the Court to commit itself to principled and reasoned originalist decision-making.

Edward Whelan is president of the Ethics and Public Policy Center and directs EPPC’s program on the Constitution, the Courts, and the Culture.

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