The Court and Social Context in Civil Rights History (Review Essay of from Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality by Michael Klarman)
Chicago Law Review, Vol. 72, p.429, 2005
27 Pages Posted: 15 Dec 2004 Last revised: 21 Nov 2017
Date Written: 2005
"From Jim Crow to Civil Rights" engages a theme that has been at the center of American constitutional theory since at least the 1930s: the role of judicial review in a democracy. Klarman situates himself between the heroic vision of the courts in works like Richard Kluger, "Simple Justice" and a negative view of courts in works like Gerald Rosenberg, "Hollow Hope." For Klarman, the courts are neither the hero of the story, generating needed social change, but neither are they the villain, deflecting the movement's energies from political struggles more likely to be successful. Along the way, Klarman strikes a blow at the countermajoritarian difficulty thesis, for Klarman imagines a Court without significant agency. The Court does not shape American society; instead the Court follows the flow of predominant cultural mores, reflecting changes that have their source elsewhere.
This review essay focuses on a central theme in Klarman's book: his view of the relationship between law and social context. The essay examines two features of social context that Klarman sees as important: African American migration out of the South, and the impact of global developments - World War II and the Cold War - on the Court. Many African Americans migrated into segregated and soon-to-be-declining Northern cities. Because urban segregation was facilitated in part by law, the experience of migration helps to illuminate the way that social context is in part constructed by law, helping us to see that law does not simply reflect social context, but also shapes it. Klarman views war-related pressures as an important part of the social context affecting the Court; however, these issues drop out when he examines the impact of Court decisions. Because Brown and other landmark civil rights cases aided U.S. efforts to project a positive image of American democracy around the world during the Cold War, the cases had a broader impact, and arguably were more important in aiding democratization, than a purely domestic analysis of the cases would reveal.
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