Jesse Merriam, a fellow at the Claremont Institute for the American Way of Life, has just published a thoughtful essay “How We Got our Antiracist Constitution.” Claremont included these remarks among a series of “provocations,” and Merriam’s brief against the “canonization” of Brown v. Board of Education certainly fits that description. He begins by explaining that a proposal made by Ibram X. Kendi in 2019, that the U.S. create a “Department of Antiracism” to monitor all government policies to ensure they are not racist, can be traced in its intent to the landmark 1954 desegregation decision. According to Merriam, the Brown decision has shaped our constitutional thinking and political discourse in a way that no other Supreme Court ruling has done since then, and Kendi’s antiracist proposal may be its ideological culmination.  

Though Merriam is not defending the situation that Brown claimed to be remedying, that decision, we are told, had ominous consequences. It “ushered in a new constitutional culture, an order centered around racial diversity as its chief value.” That fateful decision led by the sixties to the introduction of affirmative action programs, and Merriam can easily find examples of this development. The Porcelli case that arose in Newark in 1968 concerned a local school board that used race as the principal criterion for promoting teachers. The Third Circuit Court upheld that practice on the grounds that the Newark Board was affirming the principle of racial diversity in accordance with Brown v. Board of Education. Other cases came up in the sixties and seventies in which Brown was thought to explain definitively the Fourteenth Amendment’s Equal Protection Clause, as seen through the prism of diversity. We might note that psychological and sociological testimony designed to buttress Brown was later shown to be dubious. There is no conclusive evidence that either blacks or whites absorb educational material more thoroughly by being in the same classroom.  

But even more significantly, Brown treated as a basis for constitutional judgments what should have been a legally irrelevant criterion, whether blacks were made to feel inferior as a result of attending separate schools. This then became an apparently overriding reason for invoking the Constitution for the sake of massive social engineering. An inevitable casualty of this development, as noted by Merriam, was the loss of the once honored right of private association. Although the government’s refusal to protect racially restrictive covenants began in the forties, the courts after Brown became especially sensitive to the need for racial inclusiveness and actively punished those institutions that were seen as insufficiently diverse. Merriam has no trouble citing cases in which courts confirmed his harsh judgment that “antiracism has consumed our constitutional system” and “made associational liberties unpalatable to our sensitivities.” 

Merriam brings up early critics of Brown who warned against its dangerous ramifications. And not surprisingly, he locates many articles published in National Review in the fifties and sixties warning against legislating from the bench and against Chief Justice Earl Warren, who was accused of carrying out a cultural and legal revolution by his critics. It might be a forgotten historical fact that many who in the fifties viewed Brown as a very slippery slope, like legal scholar Herbert Wechsler, were hardly stereotypical illiterate racists. 

Merriam is also correct that in 1987, when legal scholar and federal judge Robert Bork was turned down by the Senate for a seat on the Supreme Court, Bork’s earlier writings questioning judicial decisions regarding civil rights were a critical factor. Though Bork tried to convince the Senate committee, which included our current president, that he was enthusiastically behind the 1954 decision, he may not have been entirely convincing. Merriam views the Senate confirmation hearings of Amy Coney Barrett in October 2020 as another attempted celebration of Brown, from the right. A conservative Catholic nominee, Barrett favored the right of religious objectors not to have to provide commercial services for gay weddings. But she then went on to describe racial discrimination as something we should never tolerate, as a legal practice or in our social life. A similar response was heard when Justice Kagan asked Jack Phillips in the Masterpriece Cakeshop v. Colorado Civil Rights case (2018) why a religious objection to providing commercial services for a gay wedding was more deserving of toleration than racial discrimination. 

The proper answer that Phillips might have given in a more traditional constitutional culture is that he was exercising his “long recognized right” as a “private business owner” to deal only with those whom he chose to have as customers. Of course, that wouldn’t fly any more, as Merriam reminds us, because we are living “with the system that the canonization of Brown created.” If Merriam treats Kagan, Kendi, and others on the antiracist Left with a certain indulgence, it is because he believes these figures are pushing the judicial revolution begun in the fifties to its logical conclusion.  

Merriam may be ignoring, perhaps by design, the larger historical context of the judicial decisions he examines. By the fifties there was widespread dissatisfaction with institutionalized racial segregation, and there were politically engaged media and an outraged intelligentsia leading the charge. The crusade for black civil rights was also presented as a continuation of the struggle against fascism and racism that had supposedly fueled American participation in World War Two. 

The Brown decision was made against the backdrop of these conditioning circumstances, and although it may have been driven by a loose interpretation of the Constitution, other forces for change turned to violence. Brown of course was not the end of the line for those who were riding the train of Progress. It led to, among other things, congressional legislation in the sixties, which pushed the political culture in a more statist direction and added gender to race as a specially protected group. Women by then had joined the antidiscrimination campaign, and like blacks and soon gays, would use the courts to advance their social agendas. Moreover, after the Voting Rights Act of 1965, the black vote trebled, and this electoral force was overwhelmingly on the side of progressive judicial activism. 

Merriam observes that after the borking of Bork in 1987, National Review began praising Brown and, more generally, the civil rights revolution. But that was not really the result of the “weaponization of Brown” occasioned by the unfair treatment of Robert Bork. By the seventies, National Review had moved to the left on civil rights questions, and William F. Buckley endorsed the Martin Luther King national holiday well before 1987. One can offer these qualifying statements even while recognizing that we are living under an oppressive, extraconstitutional regime and that Merriam’s points are generally well made. But a proper understanding of judicial decisions may require us to see them in a broader historical framework; and in the case of the working out of the logic of Brown, this would entail looking at the decade that followed that decision as one of leftist mobilization throughout the Western world.  

In the fifties and sixties, furthermore, equality was at least as much a theme for civil rights advocates as diversity. When Lyndon Johnson delivered his commencement address at Howard University on June 4, 1965, on the eve of his signing of the Voting Rights Act, he made statements that might have originated with Joe Biden, about “equality as a fact, equality as a result.” Johnson was referring in his speech to the government’s obligation to furnish compensatory justice to blacks as an oppressed race. An equality theme has always been operative in every civil rights crusade since the fifties. But diversity may have caught up to the older leitmotiv.