Q&A with Justin Driver on the History of the Supreme Court and Public Education
Ask the author: Our Constitution says we must take this risk
Question: Before getting into specific cases and controversies, can you give an overview of the book?
Driver: The book examines the intersection of two distinctively American institutions: the public school and the Supreme Court. For a long season, many observers believed that these two institutions should have nothing to do with each other. But a panoramic view of this terrain now establishes that, without exploring the extensive interaction of the public school and the Supreme Court, it is impossible to grasp the full meaning of either quintessentially American institution. At its core, the book argues that the public school has served as the single most significant site of constitutional interpretation within the nation’s history. In the course of defending that claim, I challenge received wisdom on prominent cases and attempt to elevate relatively obscure cases into our constitutional canon. The book also highlights the many personal ordeals that students and their families have endured while defending constitutional rights. Although the book trains its focus principally on students’ constitutional rights, my examination of this particular field also aims to upend broader conceptions of the Supreme Court’s role in American society. Most broadly, I argue that when we disagree over what the Constitution means in public schools, we engage in an argument that is fundamentally about what sort of nation we want the United States to be.
Question: You write of Justice John Marshall Harlan’s famous solo dissent in Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of Louisiana’s segregated railcars, that “the deeply flawed, repugnant reasoning contained in that opinion renders it the single most overrated opinion ever written by a Supreme Court justice and—not incidentally—the most misunderstood.”
During Justice Brett Kavanaugh’s confirmation hearing, Harlan’s dissent was praised as an example of judicial independence in the face of popular opinion. Can you clarify why it’s “overrated”?
Driver: Harlan’s Plessy dissent claims so many admirers in the modern era largely because people cite an isolated fragment from the opinion. Read in its entirety, though, it espouses unabashedly white supremacist and anti-Asian attitudes. In one breathtaking passage, Harlan wrote that, even if railcars were racially integrated, such a development would in no way jeopardize the superior status of whites. “The white race deems itself to be the dominant race in this country,” he contended. “And so it is, in prestige, in achievements, in education, in wealth, and in power.” Further, Harlan emphasized what he deemed the Louisiana statute’s fundamental absurdity: It excluded black passengers from white railcars when “a Chinaman can ride in the same passenger coach with white citizens,” even though members of “the Chinese race” are “so different from our own that we do not permit those belonging to it to become citizens of the United States.” Although Harlan famously wrote that “[i]n respect of civil rights, all citizens are equal before the law,” contemporaneous readers would have understood that “civil rights” had a limited meaning and was distinct from “social rights.” Whereas “civil rights” connoted the ability to enter valid contracts and similar concepts, “social rights” connoted interracial sex and all other forms of interracial interactions that might lead to such contact. Harlan dissented in Plessy because he viewed integrated railcars as involving civil rights, rather than social rights — not because of some prophetic commitment to racial equality. Harlan’s tepid commitment to challenging racism can be gleaned from his unanimous opinion for the Supreme Court in Cumming v. Richmond County Board of Education, a case that was decided only three years after Plessy. In Cumming, Harlan upheld a school board’s decision to close the area’s public high school for black students but keep open the high school for white students. These underappreciated aspects of Harlan’s legacy reveal he was hardly the avatar of modern racial attitudes that some colorblind constitutionalists claim him to be.
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