From: mnemonic@eff.org (Mike Godwin)
Subject: Re: Stare Decisis
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Date: Thu, 30 Jul 1992 10:13:29 GMT

In article <1992Jul30.055020.24405@aplcen.apl.jhu.edu> akbloom@aplcen.apl.jhu.edu (Keith Bloom) writes:

>But this is turning into a "yes it is/no it isn't" type
>of argument.  There's no real point in continuing.

Especially since Ted Frank adduced that handy information about what
Shepard's Citations says about Plessy.

>Sure it is.  *All* segregated public school systems which provide
>equal educational opportunities to black and white students are
>permissible.

Well, this is just what I've been saying.

>But since the fact of segregation itself deprives black
>students of equal opportunity, there are no such school systems.

Right. I agree about this.

>The Court did not say that the
>doctrine of Plessy v. Ferguson did not apply in Brown because the
>facts were different.

Actually, that's just what it said. Hence Footnote 11.

>It said that the doctrine could *never* apply
>in public education.

No, Brown does not say this. It says that the separate-but-equal doctrine
does not apply--Brown doesn't say it can't ever apply.

>Not quite.  Sweatt v. Painter didn't apply to public law schools
>generally, only to Texas.

Really? I think this is a misreading of Sweatt.

>Another state could have argued that *it's*
>separate black and white law schools were equal, even if those of
>Texas weren't.

Post-Sweatt, it would have lost. The arguments in Sweatt v. Painter have
to do with the fact that the Court recognized that a separate-but-equal
law school deprived black students of a particular benefit provided by the
primary law school--the benefit of having the other law students around to
discuss cases and study law together. This is different reasoning from
that relied on in Brown. Incidentally, should you ever decide to read
Richard Kluger's SIMPLE JUSTICE, you'll find Sweatt v. Painter discussed
there.

>And you believe that the Court was correct in making such a decision?
>It's your opinion, then, that mandating racial discrimination is
>constitutional if the facilities are *genuinely* equal?

No. That was the Court's decision in Brown. My approval of the Court's
decision was of its ending segregation in the public schools. I'd have
preferred to see Plessy overruled.

>Sigh.  I didn't say it was.  Implication is not identity.

Okay, then if legal rules *aren't* identical to factual findings, then a
change in factual finding doesn't necessarily imply that a rule has been
overturned, does it?

>It's no joke, but a serious response to Professor Wright's question.
>He asked, if the facts were found to be different, would Plessy v.
>Ferguson be back in effect.  Well, sure.  But the important point is,
>that the facts have *not* been found to be different.

Well, I think you missed the point of the question. Your Santa Claus
comment was particularly unhelpful.

>I suspect that the main reason *you're* making an issue of the case is
>that you used it in your recent pissing match--excuse me, discussion--
>with Mr. Johnson.  But I'm not Mr. Johnson, so you can stuff the
>sarcasm about my "degree of knowledge" of law.  If you don't mind.

Provided I don't have to hear any more about Santa Claus, thank you.
The main reason I'm making an issue of the case has nothing to do with
Clifford Johnson. You may find this amazing to hear, but the case has
importance to me independent of how it might be used in an argument. It
is, to my mind, a great example of the Supreme Court's vindicating a
Constitutional protection, and a case we all should be proud of.

>Oh, I see that the decision *does* mention equity powers, after all.
>It's over here in footnote 13.  But it has to do with the remedies the
>Court should apply if segregated schools are found to violate the
>Fourteenth Amendment.  It has nothing to do with the issue of whether
>they actually do.  Of course, the *remedy* has to be equity.  Brown
>probably wasn't asking for money damages.

When equity is the remedy, equitable principles are being applied.
Equity is not just remedies. A court normally applies its equity powers
and principles when the facts the remedy at law is not adequate. That's
what the facts in Brown showed.
 
>Well, I don't believe the Court used the word in Mapp v. Ohio, either.
>So therefore, Mapp didn't overrule Wolf.

Mapp is not a comparable case. Mapp isn't about interpreting the
Constitution, but about adopting a judge-made rule to enforce a
Constitutional right. 

>   "We conclude that in the field of public education the doctrine of
>    "separate but equal" has no place.  Separate educational
>    facilities are inherently unequal.

Right. Warren is saying that, as a matter of *fact*, this is true.

>    Therefore, we hold that the
>    plaintiffs and others similarly situated for whom the actions have
>    been brought are, by reason of the segregation complained of,
>    deprived of the equal protection of the laws guaranteed by the
>    Fourteenth Amendment."  

Right. Because the rule of separate-but-equal did not protect black
citizens' rights under the 14th Amendment. As a matter of fact, not of
law.

Now, have you given any thought to why, if Warren and the Court meant
for Brown to overrule Plessy, they didn't use the word "overrule," which
they surely knew? Is it your theory that this is just a blunder on their
part--an unintentional omission?

It seems to be well-documented that the justices knew just what they were
doing.


--Mike



-- 
Mike Godwin,     |"Crime is contagious. If the Government becomes a law-
mnemonic@eff.org | breaker, it breeds contempt for law; it invites every
(617) 864-0665   | man to become a law unto himself. It invites anarchy."
EFF, Cambridge   |         --Brandeis, J., dissenting in Olmstead v. U.S.  
Xref: sparky misc.legal:14827 alt.censorship:6289