A Brief History of Race and the Supreme Court

Abstract:     
This essay presents a brief history of the Supreme Court on race issues from the Marshall Court to the present. The analysis starts with Brown v. Board of Education and the development in the mid-1970s of a narrow purposeful discrimination rule that made it near impossible for minority claims of discrimination to succeed. Only 20 years after Brown, discrimination and minority disadvantage proceeded, and were extended in new, usually nonexplicit ways, without interference or serious questioning by the Supreme Court. Then the Court prohibited legislative and executive attempts to make equality meaningful - invalidating good faith affirmative action and good faith remedial efforts as if they were constitutionally and socially the same as the white-imposed segregation and discrimination of the not-so-distant past. The essay places this recent shift in the full history of the Supreme Court's race decisions and addresses methodology and legal decision making. An unsentimental look at the legal history of the United States reveals only two periods characterized by sustained, systematic protection of civil rights and civil liberties by the Supreme Court: from about 1937 to 1944 and from about 1961 to 1973. These are also periods in which powerful movements built on the same values - the labor movement in the 1930s and the civil rights movement in the 1960s - demanded such rights and successfully moved public and private institutions, government officials and public opinion in their direction.

Keywords: race, legal history, civil rights, constitutional law, constitutional history

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