Yesterday's plurality opinion invalidating programs designed to maintain racially integrated public schools relied on Brown v. Board of Education (II), the 1955 judgment that ordered desegregation with "all deliberate speed." This reference by Chief Justice John G. Roberts Jr. (above right) rankled Stevens (above left), whose involvement with the Court and desegregation, as I wrote here, well predates Brown. In the 1948 case of Ada Sipuel Fisher (right), who'd sought admission to the University of Oklahoma Law School, a typescript memorandum by then-law clerk Stevens advised Justice Wiley B. Rutledge:
I would think it possible to take judicial notice of the fact that (a) a law school for one student cannot be equal, even if you accept the equal but separate doctrine, and (b) the doctrine of segregation is itself a violationof the Constitutional requirement.
Nearly 6 decades later Stevens, who'd gone on to serve as a judicial brother to Sipuel lawyer Thurgood Marshall (left), found "a cruel irony" in Roberts' invocation of Brown II. Elaborating, Stevens' wrote that Roberts' opinion concludes with the sentence
"Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin." This sentence reminds me of Anatole France's observation: "The majestic equality of the law, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court's most important decisions. Compare ante ("history will be heard"), with Brewer v. Quarterman (2007) (Roberts, C.J., dissenting) ("It is a familiar adage that history is written by the victors").
The transnational reference is to Le Lys Rouge, or The Red Lily, an 1897 novel by Anatole France (left). The renowned French author used his 1921 Nobel Prize speech to condemn the Versailles agreement as "a peace treaty that is not a treaty of peace but a continuation of war" on account of which, if not amended, "Europe will perish." The sentence that Stevens invoked yesterday comes from a passage likewise laden with social commentary. In a chapter entitled "Madame Has Her Way," the character Choulette delivers a bitter critique of what he sees as France's Revolutionary legacy:
"... We are warlike in France, and we are citizens. Another reason to be proud, this being a citizen! For the poor it consists in sustaining and preserving the wealthy in their power and their laziness. The poor must work for this, in presence of the majestic quality of the law which prohibits the wealthy as well as the poor from sleeping under the bridges, from begging in the streets, and from stealing bread. That is one of the good effects of the Revolution. As this Revolution was made by fools and idiots for the benefit of those who acquired national lands, and resulted in nothing but making the fortune of crafty peasants and financiering bourgeois, the Revolution only made stronger, under the pretence of making all men equal, the empire of wealth. It has betrayed France into the hands of the men of wealth. ..."
Choulette's traveling companion, Countess Martin, thinks his ideas "a little absurd," the novel continues. "She did not think that the past had ever been better than the present." And so she replies with resignation:
"I believe, Monsieur Choulette, that men were always as they are to-day, selfish, avaricious, and pitiless. I believe that laws and manners were always harsh and cruel to the unfortunate."
Stevens' dissent underscores the continuing relevance of this 110-year-old debate over formal versus substantive equality.