Justice Thomas’s Views on Brown v. Board Are Being Distorted

Seventy years ago, in Brown v. Board of Education, the Supreme Court ruled state-imposed racial segregation of schools unconstitutional. The ruling has become canonical. Opposition to its holding is now considered a mark of extremism, although criticism of its reasoning has persisted. In an opinion issued yesterday concurring in a ruling about race and gerrymandering, Justice Clarence Thomas also suggested that the effort to enforce Brown, starting with the successor case known as Brown II, had led the Court to adopt a dangerously broad view of its powers.

The view of equity required to justify a judicial mapdrawing power emerged only in the 1950s. The Court’s “impatience with the pace of desegregation” caused by resistance to Brown v. Board of Education, 347 U. S. 483 (1954), “led us to approve . . . extraordinary remedial measures,” Missouri v. Jenkins, 515 U. S. 70, 125 (1995) (THOMAS, J., concurring). In the follow-on case to Brown, the Court considered “the manner in which relief [was] to be accorded” for vindication of “the fundamental principle that racial discrimination in public education is unconstitutional.” Brown v. Board of Education, 349 U. S. 294, 298 (1955) (Brown II). In doing so, the Court took a boundless view of equitable remedies, describing equity as being “characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.” Id., at 300 (footnote omitted). That understanding may have justified temporary measures to “overcome the widespread resistance to the dictates of the Constitution” prevalent at that time, but, as a general matter, “[s]uch extravagant uses of judicial power are at odds with the history and tradition of the equity power and the Framers’ design.” Federal courts have the power to grant only the equitable relief “traditionally accorded by courts of equity,” not the flexible power to invent whatever new remedies may seem useful at the time. Grupo Mexicano, 527 U. S., at 319.

Note that Thomas is not saying Brown (Brown I, that is) was wrong in finding school segregation unconstitutional. He’s not even saying that the remedies the Court embraced in Brown II were unjustified. He’s saying that extraordinary remedies are not justified as a general matter. Not every case is Brown, and emergency powers have a way of outlasting the emergency.

Now compare what Thomas said to this Russell Contreras article in Axios, headlined, “Clarence Thomas attacks Brown v. Board ruling amid 70th anniversary.” The article is more than 80 percent longer than Thomas’s entire discussion of Brown, including footnotes. Yet Axios finds no room to mention that Thomas said nothing at all about Brown I and no room to point out that Thomas was in no way suggesting segregation is constitutional. Contreras spends plenty of time, however, insinuating that Thomas was criticizing Brown I and defending segregation. Whoever wrote the headline got the misleading message: It’s not the anniversary of Brown II, after all. But then, Contreras’s article offers no evidence that he is even aware that there is any difference between Brown I and Brown II.

Expect this pernicious nonsense to travel far and wide.