Dictators in Black Robes
THE NEW COLOR LINE: HOW QUOTAS AND PRIVILEGE DESTROY DEMOCRACY
Paul Craig Roberts and Lawrence M. Stratton
Regnery Publishing, 1995, vii + 247 pp.
This is a much more radical book than its title suggests.
Criticism of quotas and affirmative action is hardly new. As the
authors note, opinion polls show a vast majority of the public
opposed to these programs; and even among the groups that benefit
from them, opinion on their merits is split. A line common among
neoconservatives, ever anxious to curry favor among the public,
relies on this popular discontent.
These programs, it is alleged, betray the true struggle for
civil rights, culminating in the 1964 Civil Rights Act and the
1965 Voting Rights Act. The neoconservatives urge us to drop
racial quotas and to return to the legacy of Dr. Martin Luther
King. Roberts and Stratton take the argument in a far different
and much more illuminating direction.
In a move sure to provoke cries of outrage, our authors oppose
the very foundation of modern civil rights law, the decision in
the celebrated case (actually a consolidation of several cases)
of Brown v. Board of Education (1954). Chief Justice Earl Warren,
speaking for a unanimous court, found segregated schools
"inherently unequal." As such, they violated the
Fourteenth Amendment to the Constitution and were to be
eliminated, as an order the next year famously put it, "with
all deliberate speed."
How can a sane person of good-will oppose the Brown decision?
Does not doing so brand one as a benighted defender of racial
segregation, if not of the reimposition of slavery? Our authors
do not argue as advocates of a regime of white dominance: they
themselves oppose segregation. Roberts tells us that he
"helped to organize civil rights protests as a college
student" (p. i); he further claims, "This book is not
about racism, segregation, or integration" (p. iv).
The mystery deepens. If the authors oppose segregation, on
what grounds can they reject Brown? Their response lies
in the nature of the Courts reasoning, with its disastrous
implications for the future of the American political system.
As earlier mentioned, Chief Justice Warren found segregated
schools at variance with the Fourteenth Amendment. But he did not
claim the intent of the framers of that Amendment was to end
segregation. Quite the contrary, the Chief Justice stated:
"we cannot turn the clock back to 1868 when the [14th]
Amendment was adopted, or even to 1896 when Plessy vs.
Ferguson was written" (p. 44. The Plessy
decision upheld a Louisiana law that mandated separate seating in
railroads: Brown partially overturned it). Indeed, to
argue that the Fourteenth Amendment, as originally intended,
could be bent to the purposes of the Warren Court was a losing
enterprise. The very Reconstruction Congress that passed the
Amendment established segregated schools in the District of
But if the Amendment did not mean what Warren and his fellow
justices said it did, then the conclusion is obvious, however
much it grates against prevailing sensibilities. The Brown
decision constitutes a naked act of judicial usurpation. It
substitutes a regime of judicial oligarchy for the
self-government of the American people. (The authors amusingly
use the obscure word "kritarchy," to describe rule by
Even, then, if one approves the goal--the end of
segregation--an evil means cannot rightfully be used to attain
it. Once we accept the principle that the Supreme Court can
establish and overturn law as it wishes, what assurance do we
have that the goals at which the Court aims will invariably be to
our liking? The authors spend much of the book showing that the
busing, quotas, and preferential treatment that have in recent
years aroused so much popular fury stem from exactly the
principle of judicial oligarchy paramount in Brown.
The analysis offered by Roberts and Stratton must confront an
objection. They argue that if the Court was not justified by
original intent, it has substituted its arbitrary will. But
perhaps the justices followed some other standard besides
original intent. If so, the answer to the claims of arbitrariness
and usurpation may be at hand.
Some other rule, it might be argued, guided the Court; it is
this rule, not their naked wills, that the members of the Court
endeavored to put into effect. How, then, did the Court attempt
to justify its decision? (Parenthetically, even if one could show
that the Court followed a reasonable principle in deciding Brown,
the Court would not be home free. The issue would then arise:
what was the Courts constitutional warrant for use of that
principle in their decision?)
The authors response turns the objection in their favor. The
rationale of the Court in Brown compounds the felony: it
itself rests on a premise inconsistent with democracy. Chief
Justice Warren based his opinion on studies by psychologists and
sociologists that purported to show the harmful effects of school
segregation on black children. Further, the harm in question
could not be left for Congress and state legislatures to remedy.
American society, pervaded by racism, could not by its own
efforts end segregation. Judicial guidance was essential.
Where did Warren get his strange ideas? The answer lies in a
notorious footnote of the decision: "See generally, Myrdal, An
American Dilemma." The Court abandoned the Constitution
for the dubious study of a Swedish economist, Gunnar Myrdal, of
markedly socialist opinions.
Myrdal used his massive work to drum home a deadly message. To
reiterate, in his view America was so sunk in racism that its
people could not act to end segregation by their own volition.
Only a superior caste of judges, guided, of course, by socialist
intellectuals such as Myrdal himself, could break the bonds of
Roberts and Stratton find Myrdals argument at odds with a free
society. "The basis for the desegregation decision threw out
the fundamental presumption of any democratic order--goodwill
among citizens regardless of class, race, or gender. Without
goodwill there is no basis for uniting different people in
democratic self-rule" (p. 5). To claim that people
inevitably respond to racial or class interests is to adopt a key
principle of Marxism. People, in this view, cannot be swayed by
appeals to reason or morality; interest dominates all action.
In combatting this assumption, the authors of course do not
adopt the nonsensical view that peoples interests never influence
their political deliberations. Rather, all that they reject is
the claim that these interests operate with iron force, leaving
us no room for deliberation and moral suasion.
An episode the authors do not mention supports their claim
that Myrdals work was fatally infected with deterministic
assumptions. In a German work written decades before An
American Dilemma, Myrdal claimed that economists do not
objectively pursue truth. Rather, their theories reflect the
interests of the economic class to which they belong.
Ludwig von Mises exposed the fallacies in Myrdals case to
devastating effect; as a result, Myrdal dropped the claim in the
English translation of his book, without mention of Misess
criticism. (Mises exposes Myrdals dishonesty in the preface to Epistemological
Problems of Economics.)
If the authors are right, and they have made a powerful case,
a new question demands attention. How did the Court come to adopt
so strange a view? Perhaps the greatest contribution of The
New Color Line lies in the detailed account it provides of Browns
When the case was first argued before the Court in December,
1952, the tenor of the questions by the Justices strongly
suggested that the Court was not about to overturn
separate schools. John W. Davis, widely regarded as the greatest
twentieth-century member of the Supreme Court Bar, easily bested
Thurgood Marshall, the lead counsel for the plaintiffs, in
argument. Further Fred M. Vinson, then the Chief Justice,
regarded the issue of segregation as one best left to the
In 1952, the Court seemed inclined to uphold Plessy; the
decision, when issued in 1954, unanimously condemned segregation.
What happened? Our authors locate the answer in the machinations
of Justice Felix Frankfurter, a Roosevelt appointee to the Court
who fancied himself a great judicial statesman. Frankfurter
strongly desired a verdict for the plaintiffs but recognized the
weakness of Marshalls case.
What was to be done? Frankfurter persuaded his colleagues to
order the case reargued, thus averting an unfavorable outcome.
The Justice Department was invited to submit a new brief. By odd
coincidence, the attorney in charge of civil rights cases for the
Justice Department was Philip Elman, a former law clerk of
Frankfurters. Elman had the task of preparing the new brief; and
he did so in close consultation with Frankfurter. In gross
violation of judicial ethics, a sitting justice thus assumed the
role of advocate. Frankfurter, a friend of Myrdal, strongly
advised reliance on the work of this Swedish socialist; and Elman
proved an apt student.
Roberts and Stratton tell the story in great detail and with a
high sense of drama. I do not think it quite enough, though, to
say that Frankfurters clerk, Alexander M. Bickel, "argued
that the language used by the Constitutions framers was so
elastic that the Court could reinterpret it according to the
needs of the times" (p. 40). This is not wrong, but it
leaves out Bickels claim that the language of the Fourteenth
Amendment was designed by its framers to be open for future
Further, to say that "[s]egregation was supported by more
than a half century of precedent" (p. 44) goes too far.
Several cases, decided before Brown, had already
weakened Plessy. But on the whole the discussion of the
intrigue that led to the Brown decision is first-rate.
How ironic that in some circles Frankfurter retains his inflated
reputation as a supporter of judicial restraint.
I have concentrated on the books discussion of Brown,
since this seems to me by far the works most vital contribution.
But it includes much else of interest, including a spirited
argument against quotas. The authors contrast the classical
liberal principle of equal treatment of all before the law with
the creation of legally privileged castes. To guarantee jobs,
promotions, and contracts to some groups, while excluding others,
is to return to feudalism.
Relying on the work of the great French medievalist Marc
Bloch, the authors argue that "[h]istorys compelling lesson
is that privileges once granted are not easily rescinded"
(p. 129). This ingenious parallel brings to mind a similar
display of ingenuity in a notable early essay on the Pirenne
thesis by the books senior author. But this is by the way.
By their sharp challenge to conventional opinion, Roberts and
Stratton have compelled a complete rethinking of the civil rights
decisions of the Warren Court and its successors.