An update from Michael R., a senior majoring in political science and English:

Meting Out Justice & Meeting a Justice

My research project is about the causes of the Supreme Court’s sustained behavior that favored desegregation in a series of education segregation cases from Missouri Ex Rel. Gaines v. Canada (1938) to Griffin v. Prince Edward County (1964).

In the big picture, this research topic is framed by expectations about the imperfectability of human nature and thus human institutions. Professor Kobylka likes to quote an insight from the Greek philosopher Socrates about the nature of the law that was recorded in one of Plato’s dialogues, The Republic: “Justice is the interest of the stronger.” For the most part, I agree with this cynical view of the law. While Socrates describes the effects of human nature on the institution of the law, the German philosopher Immanuel Kant posited a cause to these problems. Namely, “out of the crooked timber of humanity no straight thing was ever made.” In other words, human beings are imperfect. The products of imperfect beings will also be imperfect. The law is a product of human beings, so the law will also be imperfect. And yet, the promise of the Court is this general rule about the imperfections of the law.

When we met with the clerk of the Court and toured the Supreme Court building today, I thought about these broader debates about the nature of the law and justice, and the distance between the two. As an institution, the Supreme Court uses symbolism and architecture to ennoble and mystify its work and its methods. The Court is built of marble (and called “the marble palace”) to make the Court and the justices decisions seem exalted and powerful. Even the title “justice” is used to hide the all too human and fallible nature of the nine people who serve on our nation’s most powerful court. Working through the archived papers of the justices, I am reminded of Otto von Bismark’s remark that “Laws are like sausages, it is better not to see them being made.” Court opinions are made through a process of strategic negotiation in a similar fashion to the way the Congress makes laws.

Today, I conducted research in Chief Justice Earl Warren’s papers about Brown v. Board of Education (1954). From this experience I came to better understand how and why the “interests of the stronger” affect the judicial decision-making process. The Court faced enormous pressure from entrenched political actors (for example, the Dixiecrat senators who favored segregation) to keep the school system segregated. Indeed, in Aaron v. Cooper (1958) Senator J. William Fulbright filed an amicus curiae brief that supported leaving the enforcement of desegregation. Of course, this deference to the states and local government would have the effect of slowing, and probably even halting, desegregation. This is law as designed by “the interests of the stronger.” The prospect of nullification and social disruption was always a looming threat that the justices took very seriously.

Even more sinister critique of the majesty of the law is that many justices, including Justice Frankfurter and Justice Robert Jackson, wondered whether the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution prohibited segregation in public education. This is an example of the “crooked timber of humanity.” The Civil War was fought over the concepts embodied in the Fourteenth Amendment, but some of the justices seriously doubted whether the Fourteenth Amendment was designed with the intent of desegregating public education. Indeed, many of the framers of the Fourteenth Amendment expressed very racist views during the congressional debates about ratification of the Fourteenth Amendment. Moreover, most of the framers of the Fourteenth Amendment had a very narrow and limited conception of equality. Thus, the justices believed that the law itself did not allow them to mete out justice. Once again, forged from the “crooked timber of humanity” a faulty instrument, the Fourteenth Amendment, was created. In light of Plato and Kant, this is not surprising, though it is deeply disturbing and tragic.

However, if the law only and always supported the “interests of the stronger,” then the Court would probably have sided with the existing power structure that supported Jim Crow law. Although the enforcement of desegregation came in later cases in part because the Court was motivated by the desire to protect its own authority, the Court meted out justice in Brown I against “the interests of the stronger.” Given the concepts from Plato, Kant, and Critical Legal Studies, this result is puzzling. By examining the files of the justices and trying to deduce what their motives were in the desegregation cases, I am trying to answer the question why and how did the Court, for once, opposed the “interests of the stronger.”

In my internal debate and research about the relationship between law and justice, I am reminded of Atticus Finch in To Kill a Mockingbird by the late Harper Lee. In his closing argument in the trial of falsely accused defendant, Finch states:

“I’m no idealist to believe firmly in the integrity of our courts and in the jury system—that is no ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up. I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family. In the name of God, do your duty.”

An abstract notion, such as the phrase “equal justice under law” that appears above the entrance of the Supreme Court, will never become fully actualized because the law is a “living, working reality.”

Finally, I became more aware today of the “living, working reality” of the law because I was fortunate enough to briefly meet Associate Justice Elena Kagan in the salad bar line in the Supreme Court lunchroom. When I first saw her, I didn’t realize that it was Justice Kagan. After I realized whom it was, I greeted her, and Justice Kagan was very polite and friendly. I didn’t ask her for a picture because I didn’t want to disturb her. It is remarkable to have met Justice Kagan. Before becoming a justice, she clerked for Justice Thurgood Marshall and served as the dean of Harvard Law School. Of course, my research topic about the cases that Justice Marshall argued before the Court. Now, through Justice Kagan, I am one degree removed from Justice Marshall, and thus all the social progress and historic Court decisions about desegregation that he is in large part responsible for. Through the generous support of Southern Methodist University and the Richter Foundation, 11 other students and I have had the opportunity to become immersed in the “living, working reality” of the law.