Richmond Bar Association Law Day Address
May 1, 2007
Thanks, Pete. I should say that Judge Stout and the invitation committee had no idea they were inviting such a controversial character last year—when the call was made. So you'll have to forgive them. When I was here last year, I was still struggling with the adjustment to being a new, modestly popular president in a small town—folks coming up to you on the street, in restaurants, saying hello, sitting down with you. A nice adjustment to be sure. But still one that made it difficult to get your work done. Let me say that things have a way of working themselves out. There's at least a chance I'm not as bad as the guy you read about in the newspapers.
I wasn't sure what to talk about—it being Law Day. I considered a disquisition on the use of religious symbols at public universities, but thought I'd spare us that—all of us. But then I was thrilled to learn that one of my great heroes was going to be here—Oliver Hill. Student of Charles Hamilton Houston; colleague of Thurgood Marshall; co-counsel with Spotswood Robinson, architect of Davis v. Prince Edward County—one of the cases that became Brown v. Board of Education at the Supreme Court. Despite death threats and cross burnings—a brilliant lawyer—calling America to live up to its most fundamental promises. Calling America to be America.
So I thought I'd turn to Brown—to Mr. Hill's legacy in our lives, in our laws. Brown is, after all, the greatest decision ever handed down by an American court. Saying some simple and straightforward things. That state-demanded apartheid is impermissible. That the constitution means something; it's to be seriously enforced; that it won't be relegated to rank hypocrisy; and that it belongs to us all. Simple things, majestic things. Controverted things. Words that changed America. When it needed changing. It needs changing still.
I'm of that generation who became lawyers because of Brown.
There was a good deal of idealism in the air then. A lot due to the
Kennedys and King. But many of us who became lawyers did so because of Brown. We wanted to be Thurgood Marshall or Robert Carter or Oliver Hill.
One way of making the point—I grew up in rural Texas. The civil rights
revolution was slow coming to my family's house. And in Texas, we were
fortunate to have one of those great, courageous southern federal
judges—like Judge Mehridge here—ours was the aptly named William Wayne
Justice.
So about once a week at our breakfast table my father would read in the paper that Judge Justice had taken over the schools or the prisons and he would growl "that goddam Judge Justice." Being a teenager, I thought anybody who could consistently make my old man that mad must have something going for him. Years later, I was on a panel with Judge Justice and I was able to tell him I became a lawyer because my father hated him so much. I thanked him for it.
But for us, my generation, we thought of Brown as the promise of America. A celebration and a challenge; an inspiration and an indictment; a dream and a rebuke. And what was true in 1954 is true over a half century later.
There is, in Brown, much to celebrate. The stunning courage of the plaintiffs. The brilliance of the NAACP's strategists—arguing for recognition that black Americans are "first class," "fee simple" citizens. Thurgood Marshall writing "these infant appellants assert the most important claims that can be set forth by children—the claim to be treated as entire citizens of the society into which they have been born." I love that phrase: "entire citizens of the society into which they have been born."
And if we asked what Brown has meant, we'd talk of other things as well. First, as a foundation for modern constitutional and civil right. Though much of Brown's educational promise has been unmet or abandoned, without Brown—there is no civil rights act ten years later; no voting rights act in >65, no Reynolds v. Sims—one person, one vote; no protection against sex discrimination; no guarantee of gay rights; no strong application of the Bill of Rights against the states; no right to privacy; no right to choose. Brown has been the indispensable fountain of modern constitutional decision-making. The meaningful judicial protection of civil rights here began May 17, 1954. And it has, quite literally, lifted our nation.
And something we haven't focused on as much—Brown also worked to rescue the Supreme Court as an institution—to secure for the Court a vital and necessary role in American government. Our high court has a long history. It hasn't been glorious.
It claimed the power of judicial review in early 19th century, but it didn't use it 'til the disastrous decision in Dred Scott—a ruling reversed by war. In Plessy v. Ferguson, it wrote the equal protection clause out of the constitution. It battled with the Roosevelt administration over unrestrained capitalism, and lost. It battled with the Congress over what was local, and lost. We interned 120,000 Japanese-Americans during World War II, it didn't intervene. It was silent in the face of McCarthyism. It continued to lie face down on the mat. Not up to the task.
Until Brown, the major lessons of the Court had been ones of failure. As of 1950, constitutional lawyers thought the best you could hope for from the high court was that it shut up and not get in the way of progress coming from the other branches. Today the Court plays a very different role. That can be risky, of course. But we're better off if one of our principal institutions of government sees itself charged with enforcing our foundational promises of liberty and equality. If we have that, it's because of Brown.
But I want to focus in the time left on another feature of Brown. My favorite core of the decision. I'm convinced there's a central component of Earl Warren's opinion that still has the capacity to stir American constitutionalism. He conceded in Brown that the Court had been asked to struggle with the historic meaning of the majestic phrase—"equal protection of the laws." After argument and reargument, though, Warren threw up his hands—saying he found the evidence "inconclusive."
He said "inconclusive"—but he meant "beside the point." "Beside the point" because given the breathtaking harshness of the discrimination pressed in Brown, and the importance of the rights at stake, Warren concluded that if the American idea of equality was untroubled, then, frankly, it wasn't worth much. We might talk about it in the Declaration of Independence, pledge our mythical allegiance to it. But, in fact, it was a sham, a fraud. And that conclusion—the idea that the American aspiration to equality was worthless—Earl Warren was unable and unwilling to accept.
Today, 53 years later, Warren's question about the REALITY of the American commitment to equality could be our question as well.
1. We could ask, does equality mean much if the wealthiest nation on earth, the richest nation in human history, allows almost one in five children to live in crushing poverty—a record far worse than other major industrial nations? Nations who don't talk so much about equality. As if any theory of justice or virtue could explain the exclusion of innocent children from the American dream.
2. Does equality mean much if, across much of the nation, we countenance rich and poor public schools? Not just private schools, mind you, but rich and poor public schools? As if it were acceptable to treat some of our children as second- or third-class citizens. Our religions teach that every child is equal in the eyes of God. We fund our schools as if we didn't believe it.
3. Does it mean much if in the 146 most selective universities in the country less than 3% of students come from the bottom economic quartile, while 75% come from the top of the economic chart?
4. Or if over 46 million of us have no health care coverage of any kind? Standing alone among the major nations in failing to provide universal coverage?
5. And does it mean much, if our own system—the legal system—is the most inequitable of all? Study after study finds that 80% of the legal need of the poor and near poor goes unmet. Making "equal justice under law" a mockery on courthouse walls across the land.
The greatest lessons of Brown, then, are that Brown's questions should be our questions; Oliver Hill's challenges should be our challenges—challenges that go to the heart of our national promise.
1. Brown's challenges must be our challenges because, as Lincoln put it: "the central idea of America is that the weak would gradually be made stronger and ultimately all would have an equal chance."
2. Brown's challenges must be our challenges because we believe, with Dr.King, "that the arc of the moral universe is long, but it bends toward justice."
3. Brown's challenges must be our challenges because, as Robert Kennedy claimed, "history will judge us on the extent to which we have used our gifts to lighten and enrich the lives of our fellows."
4. Brown's challenges must be our challenges—even though this work might not be as popular or as praised as it ought to be. But Fannie Lou Hamer didn't do an opinion poll when she started the Mississippi Freedom Democratic Party. Rosa Parks didn't conduct a focus group before she sat down for freedom.
5. And Brown's challenges should be our challenges because the virtue of this nation is still in the making. We too are charged to help achieve our country. And in the crucible of this time—it is vital that we become fully engaged in what Daniel Webster called "the great work of humans on earth, achieving justice."
I'm haunted by a passage from Ralph Ellison's novel Juneteenth: "We are a nation born in blood, fire and sacrifice. Thus we are questioned, judged, weighed by the ideals and events that marked our founding. These transcendent ideals interrogate us, judge us, pursue us, in what we do and what we do not do. They accuse us ceaselessly, and their interrogation is ruthless, scathing. Until, reminded of who we are and the costs we have assumed, we lift our eyes to the hills, and we arise."
Our ideals of equal justice question and interrogate us. They examine us and find us lacking. The excuses we offer and the justifications we provide do not satisfy. Not if we are what we claim to be. So Brown's promises must be our promises—because the greatest American value is that we're all in this together—one nation, indivisible, seeking providence, committed to human liberty, and charged with the demand of equal justice for all.
