Justice, for a day.
Balkin’s concept is so brilliantly obvious that it’s amazing no one’s tried it before: He’s snared nine prominent legal academics, given them a politically juicy case (Brown v. Board of Education, which declared school segregation unconstitutional), limited them to the materials available in 1954, and told them to come up with the opinions they would have produced if they’d been members of the Court. The resulting pastiche is, for the most part, invigorating. Freed by the anachronism of mid-century role-playing, the eminent professors who write here are forced actually to write. The three judges from Yale—Balkin, former Solicitor General Drew Days, and media hound Bruce Ackerman—concur and form the plurality. Their opinions, commonly rooted in a revival of the “citizenship” and “privileges and immunities” clauses of the 14th Amendment, are very much Yale opinions: brilliant, subtle, technically masterful, and totally divorced from reality. The old-line liberals—Frank Michelman. John Hart Ely, and feminist Catharine MacKinnon—take a different approach: they skip over legal niceties and resort to overarching “principles,” whether of equal membership in the civil community, anti-subordination, or the simple conviction that the “separate but equal” rationale of Plessy v. Ferguson is wrong. The last three stray furthest from the opinion of the Court. Michael McConnell strives to locate an intent to desegregate among the ratifiers of the 14th Amendment themselves, but his historical approach ultimately feels forced, a case of ideology shoved before reason. Cass Sunstein, to general embarrassment, tries to revive the concept of substantive due process. But it’s Derrick Bell, the sole dissenter, who provides the real fireworks. Bell, who supervised the NAACP’s school desegregation cases for five years, identifies Brown as a dead end, a piece of conceptual wallpaper that overestimates the power of law and understates the depth and pervasiveness of racism. His solution sounds more realistic than anything the rest of the judiciary has come up with.
Passionate, intelligent, accessible, and eloquent. If only the real court would follow suit.