From: akbloom@aplcen.apl.jhu.edu (Keith Bloom)
Subject: Re: Stare Decisis
Organization: The Johns Hopkins University
	<1992Jul26.172151.7681@eff.org> 
	<1992Jul27.163928.10705@aplcen.apl.jhu.edu> 
	<1992Jul28.111749.1971@eff.org>
Date: Wed, 29 Jul 92 05:03:18 GMT

mnemonic@eff.org (Mike Godwin) writes:

>>I may have misread your previous article.  The question under
>>discussion is, in what cases has the Supreme Court explicitly
>>overruled one of its prior holdings on a matter of law.

>I think I'm clear on this.

I didn't say you weren't.  I restated the question for the benefit of
anyone else who may have wanted to read the article.

>>What seems to me significant is that Warren
>>specifically said that the Plessy doctrine applied to the Brown case,
>>where it did *not* apply in other cases in which the courts overturned
>>discrimination.  Therefore, the plaintiffs should have lost under
>>Plessy.

>Unless the facts showed that the rule was unjust in this particular kind
>of case. 

Not only unjust, but also unconstitutional: a deprivation of equal
protection.  That is what Earl Warren said.  And so the Court changed
the rule.

>>But the Supreme Court found for the plaintiffs.  How could
>>that be, if they were not overruling Plessy?

>Well, for one thing, they could be applying the equity powers granted to
>them under the Constitution.

Where do you get this from?  Where in the Brown decision did the Court
say anything about equity powers?

>>How explicit does the Court need to be?

>My feeling is
>that in order for the Court to be said to have explicitly overruled a
>prior decision, it must be explicit. By definition.

All right.  Did the Court's decision in Mapp v. Ohio explicitly
overrule Wolf v. Colorado?  If not, then I accept your point.  
If it did, then you are making a distinction here which I'm afraid I
still do not see.

>>I assume that judges are not
>>mathematicians and are not interested in propositions which are merely
>>vacuously true.

>Why do you assume this? 

I don't see a smiley here...

>Deducing from general propositions and inducing
>from particular ones is something that judges do. I don't know what you
>mean by "vacuously" true. 

By "vacuously true", I mean that the set of cases which it covers is
empty.  For example, if I said that all men over twelve feet tall have
brown hair, that would be vacuously true.

>>  When Plessy said, in effect, that "separate but equal
>>is OK", it implied that there *was* such a thing as separate but
>>equal.

>Right.

>>That's the implicit factual basis of Plessy's legal doctrine.

>But is this "vacuously" true? Maybe it is, but if so it undercuts your
>assumption that judges "are not interested in propositions which are
>merely vacuously true."

Not so.  The point is that the Supreme Court in 1896 *believed* that
there was such a thing as "separate but equal."  If it had not
believed this, it would not have ruled that "separate but equal is
OK," because the scope of such a ruling would be zero.  In other
words, the 1896 Court believed that its doctrine was not vacuously
true, but the 1954 Court ruled that it was.

>I think part of the problem here is that you are unclear on how lawyers
>use the fact/law distinction. When I look over your posting, it seems to
>me to be this particular issue that you're tripping up on. 

Well, feel free to explain it.

>...What Warren is doing is
>rejecting the *factual* claim about the possibility of separate-but-equal
>educational facilities for black students. He is not saying that, as a
>matter of law, separate could never be equal. (Indeed, is there any doubt
>that prestigious black colleges, like Howard and Spellman, are the equal
>of countless other colleges?) 

Huh?  First you say that (per Warren) there's no possibility of
separate but equal educational facilities.  Then you say that there's
no doubt that such facilities do exist.  Which way do you want to have
it?  You can't be saying that as a matter of *law* Howard is the equal
of many other colleges, but as a matter of *fact* it isn't.  Or can
you?

>>I don't know why the Court placed so much emphasis of sociological
>>evidence in Brown v. Board of Education.

>I know why. It's because they were basing the decision on a factual
>finding rather than on a legal doctrine. 

That's no explanation at all.  It merely repeats the question.  The
Court used factual evidence because they were basing the decision on a
factual finding.  *Why* were they basing the decision on a factual
finding?  Was it because (a) plaintiff's brief made extensive use of
such evidence; or (b) because there's a school of legal thought which
held that courts *ought* to use sociological evidence; or (c) because
politically, Earl Warren thought that his decision would have a
greater effect if he wrote it that way; or (d)....

>This was highly criticized at the time. 
>But I haven't the slightest doubt that the Court reached the right
>decision.

What do you mean?  That the Court was right in overturning racial
discrimination in schools?  Even Robert Bork agrees with that.  Or do
you think that a State has the constitutional power to mandate racial
discrimination, *if* it could show that segregated facilities are
in fact equal?

>>It's probably
>>unusual for the Court to cite large amounts of data from the social
>>sciences in support of its rulings, but it's hardly unique;  didn't
>>Brandeis use socioeconomic data in his dissents in the economic
>>regulation cases?

>Nobody said it was unique. I don't recall Brandeis's citation of such
>data, but it wouldn't surprise me. 

Adams v. Tanner, 244 US 590 (1917) -- according to my textbook.  It
doesn't reprint the decision (or dissent).

>It should be noted, however, that 
>dissents, by their very nature, don't overrule anything.

Irrelevant, unless you want to argue that Brandeis would *not* have
cited such data if he had been in the majority.  (Of course, this last
exchange was a digression anyway.)

>>>Right. Brown v. Board of Education specifically raises the issue of
>>>whether the doctrine of separate but equal, articulated in Plessy, is
>>>valid.

>>You say this, and then you say that Brown did not overrule Plessy.
>>I'm bewildered.

>I think this is because you have been holding on to an understanding of
>the distinction between facts and law in legal opinions that does not map
>to the distinction that is actually used.

If a legal principle has a factual basis, and the factual basis is
found to be incorrect, then the principle is incorrect.  As you said
yourself (supra), it was the *doctrine* of separate but equal which
was under question.  Chief Justice Warren specifically distinguished
the Brown case from certain other cases in which racial discrimination
was overturned because of a finding that the separate facilities were,
in those particular cases, not equal.  He could have done the same in
Brown (that is, found that the separate educational facilities for
black students in Topeka, KS were inferior to those for whites).  He
didn't do that.  Instead, he wrote a much broader decision, finding
that separate educational facilities for blacks *could not* be equal.
He wrote:

    "Does segregation of children in public schools solely on the
     basis of race, even though the physical facilities and other
     "tangible" factors may be equal, deprive the children of the
     minority group of equal educational opportunities?  We believe
     that it does."

>[Earl Warren] does not *categorically* reject the doctrine of
>separate-but-equal. He only rejects it within the field of education, and
>only because of the sociological findings of Clark and Myrdal. In my
>Constitutional Law class, Prof. Charles Alan Wright asked us a
>hypothetical question--what would happen if, in another case, evidence
>from Clark and Myrdal (or their modern equivalents) proved to a reasonable
>certainty that the practice of segregating schools did *not* cause the
>sociological and psychological damage that Brown refers to? 

If Santa Claus climbed down people's chimneys on Christmas Eve, would
he be guilty of trespassing?
If police officers did not have the (quite natural) tendency to take
shortcuts with the Fourth Amendment, would we have the exclusionary
rule?

If the world were other than it is, we would have different legal
principles than we do.  It isn't, so we don't.

>This is a poor summary of the reasoning of Brown. Warren does not say
>that, as a matter of law, separate but equal is bogus. He says that,
>factually, within the field of education, separate but equal is bogus.

Since the facts, as interpreted by Earl Warren, showed that separate
but equal in education is *always* bogus, this is (at the risk of
repeating myself) a distinction without a difference.

>This is the predicate for the application of a federal court's equitable
>powers. Are you familiar with the distinction between law and equity?

I think I have a handle on it.  But where in Brown does Warren say
anything about applying the Court's equitable powers?  (In fact, I
don't recall reading such language in *any* Supreme Court decision.)

>>I brought up Mapp based on the assumption that you were claiming that
>>Brown overruled Plessy, but not on a question of law.  Mapp said that,
>>based on experience, it was necessary to apply the Weeks doctrine to
>>the states in order to guarantee Fourth Amendment protections.

>Right. It does not say, as a matter of law, that the Fourth Amendment
>itself requires exclusion of illegally seized evidence. (This would be a
>harder claim to make than the claim that the 14th Amendment is violated by
>segregation.)

Fine.  So does Mapp explicitly overrule Wolf v. Colorado?  We can ask
the same sort of question your professor asked about Brown.  Suppose
the facts showed that the exclusionary rule was not necessary in order
to prevent violations of the Fourth Amendment.  Would Wolf be
reinstated?  (I'd say yes--with much more certainty than Plessy would,
if it were found that separate but equal facilities could exist.)

Again, if you say that Mapp did not overrule Wolf, then I accept your
point about Brown.  (Not that I think the question of whether Brown
really overruled Plessy v. Ferguson, at this late date, is a very
important one.)


Keith
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