To Warren, it had seemed an innocuous enough item to insert in the opinion. "We included it because I thought the point it made was the antithesis of what was said in Plessy," he later commented. "They had said there that if there was any harm intended, it was solely in the mind of the Negro. I though these things-- these cited sources-- were sufficient to note as being in contradistinction to that statement in Plessy. " Then he added, by way of stressing that the sociology was merely supportive and not the substance of the holding, "It was only a note, after all." Warren's clerk Earl Pollock, one of those closest to the writing of the opinion, puts it more bluntly: "The only reason to have included footnote number 11 was as a rebuttal to the cheap psychology of Plessy that said inferiority was only in the mind of the Negro. The Chief Justice was saying in effect that we know a lot more now about how human beings work than they did back then and can therefore cast doubt on that preposterous line of argument."

This is a good illustration of the naivete of the 1950s American liberal: the idea that his beliefs were modern and scientific and therefore he could dismiss the wisdom of the ages. I certainly would prefer to trust the judgement of a random college- educated person-- or of a randomly drawn professor-- from 1893 about how people think than someone from 1950.

Justice Tom Clark later said (by Kluger's report) that he and Justice Hugo Black had warned the Chief Justice that including the cite to Myrdal, a leftwing Swede highly critical of the South, was a slap in the face to Southerners and would make it harder to enforce the opinion. Since the Chief Justice, an ex-governor famous for his skill at political manipulation, did it anyway, my guess is that he wanted to slap the Southerners in the face, whether for spite or because he hoped the backlash would help build Northern support.

In this, I go contrary to the Volokh Conspirators. Eugene Volokh

As I understand it, some of the studies on which Brown has relied on have indeed been questioned. But it seems to me that Brown was both right to consider social science evidence, and to reach the result that it did as to deliberate, legally enforced racial segregation.

David Bernstein said

Also, on the question of whether the Brown decision was based on the Fourteenth Amendment or on social science evidence, my understanding has always been that the Court threw in the social science evidence as a way of placating the white South. Instead of saying, "you guys are racist pigs who have been oppressing blacks for three hundred years," which would have been apt but impolitic, the Court said, "you segregated blacks in public schools at a time when you didn't know how harmful it was to them. Now that modern social science evidence has demonstrated the harm, of course you wouldn't want to continue this segregation."

(2) At any rate, the footnote was just an example of bad writing and dishonest rhetoric. What Justice Warren could have done instead was just to say "In my judgement, segregation per se hurts the performance of black schoolchildren." Courts have to decide that sort of thing on weak evidence all the time, so it is not so objectionable. In fact, I would trust Justice Warren's intuitions about people far more than the publications he cited.

But I wouldn't trust Warren's honesty, and I don't think he believed that segregation hurt the performance of black schoolchildren. Indeed, if that were the holding, then a showing that segregation helps performance-- which is equally plausible-- would make segregation okay. I don't think he really meant that.

Rather, what I think Warren really meant is what Eugene Volokh states much better than the Brown opinion:

The Plessy majority's endorsement of "separate but equal" rested on the view that the social message of segregation was irrelevant:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

This strikes me as quite unpersuasive, and it didn't persuade Justice Harlan, either:

Every one knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons. . . . The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.

The law, Harlan reasoned, "proceed[ed] on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens[.] That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana." It seems to me that he was correct. And he was also right to be attentive to the clear message that a law sends, rather than just its tangible effects.

In brief: segregation was intended and received as an insult to blacks.

That argument has two problems, though. First, I believe it is empirically false. Suppose nobody had perceived segregation as an insult to blacks. Would white southerners then have thought there was no point in banning interracial marriage, separating children in school and employees in workplaces, having separate bathrooms, and so forth? Of course not. To some mild extent the purpose of segregation was to insult blacks, but for the most part that was a by-product, if, from the white viewpoint, a desirable one. Indeed, I can think of no theory under which it would be the main reason. Why insult blacks, except for racism? But a racist would want segregation quite independently of whether it had the effect of insulting blacks, because, being a racist, he would not want to share a bathroom with a black.

Furthermore, the insult theory misses what I find the most plausible explanation for most segregation: the desire of politicians to help whites, who voted, at the expense of blacks, who did not. Since schools were not, in fact, equal, segregation allowed the politicians to have higher school funding for whites than for blacks. The effect of workplace segregation was similarly to help whites at the expense of blacks, though in a more complicated way (if there are 10 blacks and 50 whites in town qualified for a certain factory job, and you are not allowed to mix races, then you will only hire whites).

(3) This brings us, finally, to a good reason for holding that segregation is unconstitutional: that although "separate but equal" is possible in theory, in practice, it didn't happen and couldn't be made to happen. Between 1893 and 1954, it became clear that segregated facilities were rarely if ever equal. The line of federal lawsuits leading up to Brown, in fact, played on this point, and states were starting to upgrade their black colleges, for example, because of the increasing number of court challenges. The rational choice theory of politics tells us that the inequality of facilities was predictable: by the 1890's, blacks had stopped voting (because of intimidation, mostly), and so the state government was unresponsive to them. In theory, unequal grade school facilities could have been challenged in court, but court challenges are expensive, the facts would be specific to every little school district, and it would be hard for courts to monitor compliance. A wiser Brown court would have said,

Plessy was right to allow "separate but equal" in principle, but in practice we now know that the Plessy rule is unworkable. The federal courts should not get into the business of administering school budgets and monitoring the quality of bathroom facilities-- it would take too much of our time, and we would not do a good job anyway. Instead, we will use the blunter but more practical rule that segregation is forbidden.

... [in full at 04.05.20a.htm]

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