Legal and Ideological Determinants of U.S. Supreme Court Voting in Systemic Racial Discrimination Cases in Education in the Post- Brown Era

On May 17, 1954, U.S. Supreme Court Chief Justice Earl Warren delivered the unanimous ruling in the landmark civil rights case Brown v. Board of Education of Topeka, Kansas. The following principles may be derived from the Court’s opinion: (1) The meaning of the Equal Protection Clause cannot be resolved on the ground of original intent; (2) equality of tangible services does not satisfy Equal Protection requirements in an environment infected by de jure segregation; (3) separating school children from others of similar age and qualifications solely because of their race is unconstitutional; (4) the separate but equal doctrine has no place in our constitutional order; and (5) intentional segregation is harmful to the hearts and minds of its victims. In light of commentary lamenting the failure of the Supreme Court to fulfill Brown v. Board of Education’s promise, we trace legal developments at the Court in cases involving systemic racial discrimination claims in the post-Brown period, and investigate how these decisions came about. Among other things we argue that the promise read into Brown by many has proven to be misplaced and relies on a “liberal-perfectionist” vision of the U.S. Constitution which goes beyond the strictly legal aspects of the Brown ruling. We show that after a period of fairly stringent enforcement of its desegregation decrees between 1954 and 1973, the Court in its public education decisions rendered between 1974 to the present: (1) clarified standards for bringing systemic Equal Protection claims; (2) limited the scope of permissible remedial measures for proven systemic race discrimination; and (3) imposed stringent standards for benign K-12 racial balancing regimes and affirmative action admission efforts in colleges and universities. We argue that these results are not inconsistent with the meaning of Brown. After explaining these developments in jurisprudential terms, we examine them empirically, based on the attitudinal model of judicial voting developed in political science literature. In furtherance of this objective we study the 552 votes rendered by the Supreme Court justices for the period under review. Using statistical techniques that account for correlated voting patterns arising from repeated observations of the same justice, we examine the effect of justices’ ideology, their appointment date, and legal precedent, on their “liberal” or “conservative” voting. Arguing that the dichotomy between legal-attitudinal models of decision making at the Court is false and unsupportable, we show: (1) large appointment era effects associated with the justices appointed by Richard Nixon and Ronald Reagan; (2) significant preedential effects attributable to the 1974 case of Milliken v. Bradley, which are independent of ideology as measured by party-of-the-appointing president; and that (3) Democratic Party, not just Republican Party, appointees have voted more conservatively since the early 1970s, but that before that time political ideology played no role in the voting in the cases under consideration. Finally, we examine the current composition of the Court and consider possible effects of the mid-term 2014 Senate races and the 2016 presidential election on systemic racial discrimination cases relative to which justices decide to retire.