Causation, Constitutional Principles, and theJurisprudential Legacy of the Warren Court

I. IntroductionThe jurisprudence of the Warren Court was inherently political,1 and its legacy, which endures today, is also inherently political. The very term "the Warren Court" is synonymous with notions of progressive values and a long string of decisions that were courageous in their time for interpreting the Constitution expansively. But one cannot view this one legacy of the Warren Court in a vacuum. The Burger Court, and the Rehnquist Court after it, have systematically undermined the legacy of the Warren Court. Often, they did not clearly and directly overrule Warren Court decisions. Rather, those later Courts systematically weakened the legacy of the Warren Court through decisions cloaked in the language of federalism and separation of powers.This dynamic is clear throughout all aspects of the Warren Court's legacy that this Symposium explores, from criminal procedure, to apportionment, to civil liberties. Brown v. Board of Education2 is the heart and soul of the Warren Court's progressive legacy, and Brown provides a compelling illustration of the evolving legacy of the Warren Court.3My comments about the Warren Court's legacy and the institutional role of the federal courts focus on Brown and the implementation decisions that followed it. Brown, of course, acts as the centerpiece of the Warren Court's progressive jurisprudence, standing for the proposition that racial segregation in education is inherently unequal. In theory, Brown illustrates the Warren Court's progressive legacy as a champion for civil rights. However, the Burger and Rehnquist Courts narrowed the meaning of Brown by constraining the ability of federal courts to remediate the harms caused by racial segregation. As I will demonstrate, these courts grounded their articulated rationales in the concept of federalism: to "protect" the states and localities against the purported overarching power of the federal government and thus to delineate the appropriate boundaries between state and federal power. The Burger and Rehnquist Courts achieved this "protection" by imposing an overly rigid causation requirement in situations in which the school district arguably was not responsible for racially identifiable schools.4 Viewing the Brown implementation decisions as a whole, we see that the imposition of a rigid causation requirement has placed extraordinary constraints on the power of the federal courts to protect the rights of minority group members. Accordingly, the rigid causation requirement has largely prevented those courts from providing appropriate relief in many school segregation cases.5Ultimately, the Brown implementation decisions are important for more than what they tell us about education, race, and equality. I argue that these decisions illustrate the accordion-like relationship between placing limits on federal remedial power and contracting the underlying substantive right. Brown's progeny demonstrate how efforts to limit the lower federal courts' remedial power in the name of protecting state and local interests have overridden, and thus redefined, the substantive vision of equality advanced by the Warren Court. At base, the Supreme Court has placed curbs on the lower federal courts' ability to issue meaningful remedies for violation of the desegregation mandate, on the theory that the use of the federal judicial power in those cases was excessive, and that state and local interests needed protection against an overarching federal judiciary bent on aggrandizement.I maintain that the implementation decisions issued many years after Brown I by successive Supreme Courts have changed what Brown actually means. Over time, the federal judiciary grappled with the question of crafting appropriate remedies, both in cases involving a harm caused by a confluence of public and private discriminatory actions, and in cases in which significant racial integration would require restructuring school districts and perhaps entire metropolitan areas. …