All posts by Chris Schmidt

On This Day in Supreme Court History—June 12, 1967: Loving v. Virginia Announced

Today marks the 53rd anniversary of Loving v. Virginia, the Supreme Court decision striking down bans on inter-racial marriage in sixteen states.  The case was argued on April 10, 1967, and announced just two months later, on June 12.

Mildred and Richard Loving in 1967

Looking back on the oral arguments in the case, several points stand out.  First, the momentum in the case was clearly on the side of those challenging these offensive laws.  The winds of change were behind them, and the Justices were clearly with them.  Philip J. Hirschkop, the ACLU lawyer who made the equal protection argument for the challengers (another lawyer made the due process argument) spoke with almost no interruption from the bench.  His central argument was stark and direct.  “You have before you today what we consider the most odious of the segregation laws and the slavery laws and our view of this law, we hope to clearly show is that this is a slavery law,” he told the Justices.  He later made the point more concisely: “These are slavery laws pure and simple.”  Hirschkop also compared the law to the policies of Nazi Germany and South Africa.  Those who passed these laws “were not concerned with the racial integrity,” he argued, “but racial supremacy of the white race.”

When Virginia’s assistant attorney general defended his state’s anti-miscegenation policy, by contrast, he faced an engaged and skeptical bench.  Chief Justice Earl Warren and Justice Hugo Black were particularly aggressive.  Virginia’s legal defense had two prongs.  Its primary argument was based in history.  The framers of the Fourteenth Amendment did not intend it to prohibit these kinds of regulations, and therefore the Court should not read it to do so.  (The challengers countered that the proper originalist analysis should not focus on the narrow intentions of the framers but on the more general purposes of the Amendment.)  Virginia’s lawyer knew that this was his strongest line of argument and he spent most of his time elaborating on it.  The problem here—as he surely knew—was that he was talking to a Court that simply did not feel constrained by these kinds of arguments.

Virginia’s second line of defense was that the state had a rational basis for its policy. These were the arguments that led Chief Justice Warren and Justice Black to lash out at the attorney.  The core of this argument, in the words of the assistant attorney general, was that according to “the most recent available evidence on the psycho-sociological aspect of this question … intermarried families are subjected to much greater pressures and problems then those of the intramarried.”  For this reason, Virginia’s “prohibition of interracial marriage … stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage or the prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent.”  In challenging these kinds of claims that anti-miscegenation policy was intended to promote social welfare, Chief Justice Warren looked back to the Brown v. Board of Education decision he had written thirteen years earlier.  “[D]idn’t we in the segregation cases  have also argued to us what was supposed to be scientific evidence to the … effect that whites would be injured by having to go to school with … the Negroes?” he asked.  In response, Virginia’s lawyer insisted that with regard to miscegenation, the scientific evidence is “voluminous in its character” and it “supports the view not of racial superiority or inferiority, but a simple matter of difference.”  Warren at one point noted that the list of states that had school segregation laws in 1954 and the states that have miscegenation laws in 1967 was nearly identical.   At the conclusion of the lawyer’s presentation, instead of the Chief Justice’s traditional “thank you,” a clearly disgusted Warren could only muster a dismissive “I see.”

Justice Black’s skepticism also hearkened back to his experience in Brown.   When Virginia’s lawyer referenced what he characterized as the extensive and conflicting scholarship on the societal effects of interracial marriages, Black stepped in.  “[A]side from all questions from the genetics, psychology, psychiatry, sociology, and everything else aside from all of them, forgetting it for the moment, is there any doubt in your mind that the object of this statute, the basic premise on which they rest, is that the white people are superiors of the colored people and should not be permitted to marry?”   Black had been dismissive of the sociological and psychological materials that had made its way into the Brown decision.  He had framed the issue in that case in similarly stark terms, telling his colleagues he did not need social science to tell him about the meaning and effects of racial segregation.

Another striking moment at oral argument came when Bernard S. Cohen, the lawyer who was responsible for making the due process-based challenge to the anti-miscegenation statute, framed the possible legal pathways for identifying marriage as an unenumerated fundamental right under the Constitution.  He offered up the following marathon sentence—one that could only be offered (with a straight face) to the Supreme Court at the highwater mark of the Warren Court:

Now, whether one articulates in terms of the right to be free from racial discrimination as being due process under the Fourteenth Amendment or whether one talks of the right to be free from infringement of basic values implicit in ordered liberty as Justice Harlan has said in the Griswold case, citing Palko v. Connecticut or if we talk about the right to be free from arbitrary and capricious denials of Fourteenth Amendment liberty as Mr. Justice White has said in the concurring opinion in Griswold or if we urge upon this Court to say as it has said before in Meyer v. Nebraska and Skinner v. Oklahoma that marriage is a fundamental right or liberty and whether we go further and urge that the Court say that this is a fundamental right of liberty retained by the people within the meaning of the Ninth Amendment and within the meaning of liberty in the Due Process Clause of the Fourteenth Amendment.

Wow.  The possibilities here!  For the ambitious liberal cause lawyer, it must have been quite an experience standing before the Justices in 1967 and charting the potential courses the Warren Court might strike out on.

Then there was the moment during oral arguments when one of the lawyers for the Richard and Mildred Loving, the mixed-race couple who were married in Washington, D.C., and then arrested when they attempted to return to their native Virginia, put the case in the most personal possible terms.: “No matter how we articulate this, no matter which theory of the Due Process Clause or which emphasis we attach to, no one can articulate it better than Richard Loving when he said to me, ‘Mr. Cohen, tell the Court I love my wife and it is just unfair that I can’t live with her in Virginia.’”

Finally, one cannot listen to the oral arguments in Loving without hearing echoes of our recent debate over the constitutionality of bans on same-sex marriage.  We hear the same basic arguments blending equal protection and due process claims.  We hear challengers frame the issue in personal and moralistic terms while defenders rely on originalist arguments, social scientific debates, and pleas for judicial deference.  And we see the tide of history turning in the space of a single generation.

This Post was Written by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

Defending the Supreme Court—The Justices Speak Out

In the wake of the highly contentious confirmation hearing of Justice Kavanaugh, the Justices are speaking out about the importance of the Supreme Court’s independence from politics.

Image result for chief justice roberts minnesotaAt an event last week at the University of Minnesota Law School, Chief Justice John Roberts made a point of saying that he wanted to discuss “events in Washington in recent weeks.”  “Our role is very clear: We are to interpret the Constitution and laws of the United States, and to ensure that political branches act within them,” Roberts explained. “The story of the Supreme Court would be very different without that kind of independence.  Without independence, there is no Brown v. Board of Education.”  The justices, Roberts stressed, “do not serve one party or one interest, we serve one nation.”

Last week, Justice Clarence Thomas spoke in Covington, Georgia, at a dedication ceremony for an addition to the county courthouse, and he too emphasized the need for the Court to remain apart from politics. “It is becoming increasingly common for public opinion to galvanize behind particular outcomes and around particular interests without regard for the law or an objective assessment of facts,” he warned. “In our great country, the judiciary is not a puppet for those in power, nor is it the engine for pioneering social change. Rather, it is a safeguard against tyranny, and an assurance of neutral arbiters for those seeking the protection of the law.”

Justice Elena Kagan also recently spoke about the public perceptions of the Court. In  remarks at a Princeton University conference earlier in the month, she warned of the consequences of a Court that the American people see as a partisan institution. “In the last, really 30 years, starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who found the center or people couldn’t predict in that sort of way,” she explained. As a result, the Court looked “as though it was not owned by one side or another and was indeed impartial and neutral and fair.” She worried that this “sort of middle position” may be gone. Kagan emphasized this concern: “I think especially in this time when the rest of the political environment is so divided, every single one of us has an obligation to think about what it is that provides the Court with its legitimacy.”

Justice Sonia Sotomayor, who also attended the Princeton event, echoed Kagan’s comments. “We have to rise above partisanship in our personal relationships,” she said. “We have to treat each other with respect and dignity and with a sense of amicability that the rest of the world doesn’t often share.”

The Justices are speaking out in defense of the Supreme Court at a time when many believe its authority is at risk. Numerous commentators have predicted that the appointment of Kavanaugh has precipitated a legitimacy crisis for the Court.

According to Gallup polls, public confidence in the Supreme Court has been in decline since the 1970s. The percentage of the American public who have a “great deal” or “quite a lot” of confidence in the institution is currently in the thirties, down from the high forties to low fifties in previous decades. The significance of these numbers is not self-evident, however, since public confidence in most political and social institutions has dropped in recent years. In March, a Pew Research poll found that two-thirds of the American people viewed the Court in favorable terms.

In the coming years, scholars will be trying to assess the long-term impact of the Kavanaugh hearings on attitudes toward the Supreme Court. Meanwhile, the justices keep busy making the case for the value of an independent judiciary.

 

Written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Directors and Chicago-Kent Faculty Members Christopher W. Schmidt and Carolyn Shapiro.

Kavanaugh Fights Back

In an event without precedent in the history of Supreme Court confirmation hearings, nominee Judge Brett Kavanaugh gave a televised interview to refute sexual assault allegations dating back to his high school years. (Video here; transcript here.) He appeared on Fox News Monday night, seated alongside his wife, Ashley Estes Kavanaugh.

The substance of Kavanaugh’s comments was nothing new. The nominee repeated over and over what he had already said in previously released statements: he never sexually assaulted anyone, “in high school or otherwise” (recent allegations of sexual misconduct involve his college years); he respects women; he just wants a fair process.

Ashley Kavanaugh offered a few brief comments in support of her husband. “He’s decent, he’s kind, he’s good,” she insisted. “I know his heart. This is not consistent with—with Brett.”

The only new information came when Kavanaugh defended himself by saying, “I did not have sexual intercourse or anything close to sexual intercourse in high school or for many years thereafter.” This prompted the interviewer, Fox News reporter Martha MacCallum, to ask, “So you’re saying that through all these years that are in question, you were a virgin?” “That’s correct,” responded Kavanaugh.

Never been a particularly smooth operator when under the lights, Kavanaugh was clearly uncomfortable throughout the interview. He was stiff. He kept circling back to his talking points, often repeating them verbatim.

No Supreme Court nominee has ever done a press interview during the nomination process, never mind going on national television in prime time. Clarence Thomas and his wife Virginia were on the cover of People magazine in 1991, but this was only after he was confirmed to the Court, and the magazine piece was an account of the confirmation experience by Virginia Thomas because, as she explained, “I want to tell people about what we went through, even if Clarence can’t.”

A key question is whether the American people are watching another norm falling. Might we see future nominees engaging with the media to bolster their case for confirmation? Although it’s hard to imagine, much of what we’re seeing in public life recently was hard to imagine not so long ago.

Christopher W. Schmidt is a Chicago-Kent Faculty Member and Co-Director of ISCOTUS. 

Do Controversial Confirmation Hearings Hurt the Court?

We are in the midst of one of the most heated Supreme Court confirmations in recent memory. In terms of pure public drama, Judge Brett Kavanaugh’s hearings—which will continue on Monday when he confronts allegations of his involvement in sexual assault while in high school—ranks behind only those of Clarence Thomas in 1991 and Robert Bork in 1987. From the start of the Kavanaugh hearing, Senate Democrats demanded that the Senate Judiciary Committee delay the proceedings until they could obtain, review, and get permission to publicly release more documents from Kavanaugh’s time working in the administration of George W. Bush in the early 2000s. No sooner had they begun what would be a steady chorus of dissent throughout the hearing but members of the audience began their own protests, one after another standing to denounce the nominee and the hearings before Capitol Police escorted them out of the room and arrested them. This continued throughout the hearings, providing a steady stream of awkward interruptions to the proceedings.

Image result for kavanaugh hearing

Democratic Senators made clear before the hearings began that they felt the Republicans were rushing the process, thereby preventing the Democrats from properly vetting Kavanaugh’s immense paper trail from his time working in the Bush Administration. Chuck Grassley, the Republican chair of the Judiciary Committee, rejected these requests in the lead-up to the hearings, and he refused to alter course when faced with the coordinated onslaught of interruptions and complaints from his Democratic colleagues. Senator Patrick Leahy denounced the process as “the most incomplete, most partisan, least transparent vetting for any Supreme Court nominee I have ever seen.” Democrats also called on Kavanaugh himself to request a delay of the hearing, so that committee members could have time to receive and review the relevant documents. “For the sake of this nation, for the sanctity of the Constitution that we both honor, step up,” Senator Dick Durbin demanded of the nominee. “Ask this gathering to suspend until all the documents of your public career are there for the American people to see.”

Republican Senator John Cornyn lamented that the hearing had devolved into “mob rule.” It was “unlike anything I’ve seen before in a confirmation hearing.” An interruption by a protester set off Senator Orrin Hatch. “I think we should have this loudmouth removed,” he said. “We shouldn’t have to put up with this kind of stuff.” Leahy declared that he was “sorry to see the Senate Judiciary Committee descend this way.”

The hearing room dramatics caused some to wonder whether confirmation hearings are even worth having anymore. They’ve become “a circus, a theater, a fiasco,” wrote Genevieve Wood on the Heritage Foundation’s website. “It’s time to put an end to this whole political charade. It is full of sound and fury, but it accomplishing nothing. And it’s wasting both the Senate’s time and our taxpayer dollars.”

So are Supreme Court confirmation hearings worth keeping? To assess their value requires more that just identifying their most unsavory aspects and declaring them useless, of course. It requires an appraisal of their costs and their benefits. In the benefits column, there is the value of a public vetting of a nominee to a lifetime appointment to one of the most powerful offices in the land. Critics often counter that there are less public and less theatrical processes that would serve to better vet the nominees. But even if conceding this to be the case, defenders of public hearings insist that the nomination process provides a valuable moment when the American people have an opportunity to learn something about the often opaque Supreme Court—what it does, how it works, and the judges who serve on it. The Court’s legitimacy rests, ultimately, on public faith that the Court is serving its proper role, and confirmation hearings might offer an opportunity to bolster that faith. But here too critics push back, conceding that public interest in and understanding of the Court is important but asking whether what the people learn about the Court and the justices during confirmation hearings serve to strengthen or weaken public faith in the Court and its role in American society. So do confirmation hearings, and particularly sharply contested and controversial ones like the one we’re now witnessing, hurt the Court?

In terms of public support, the Supreme Court stands above the other branches of government, and research suggests that this support is relatively secure. Nonetheless, there may be reason for concern that the kind of ideologically polarized, intensely partisan debates we’re seeing in confirmation hearings and surrounding them may be hurting the Court’s reputation among the American people. Some scholars have found that media coverage of the Court that focuses on the winners and losers of a given case (called “game frame” coverage) might undermine public support. Confirmation hearings, where media coverage is dominated by the language of partisanship and hyperbole, of winners and losers (see, for example, this Vox article, complete with “winner” and “loser” tallies), would thus seem to be a recipe for undermining the Court’s popular legitimacy.

If the American people are to have a discussion of whether the circus of Supreme Court confirmation hearings are worth holding onto, we’ll need to consider what they give us and what they might be taking away from us.

This post was written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

The Rise and Fall of the No-Litmus-Test Rule

For decades, presidential candidates disclaimed the idea that they would have “litmus tests” for their nominees to the Supreme Court. Republicans and Democrats alike agreed that to demand that their judicial nominees decide particular cases particular ways would be wrong. Judicial litmus tests were bad. They were what candidates accused opponents of having. In the 2016 election, this taboo was exploded.

The idea of a Supreme Court litmus test first became prominent in post-Roe v. Wade debates over the right to abortion. The 1980 Republican platform included a promise to “work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life,” and the party’s nominee, Ronald Reagan, denounced Roe. Yet Reagan always insisted that he would not use opposition to the decision as a requirement for his Supreme Court nominees. Democrats nonetheless attacked Reagan throughout his presidency for having an abortion litmus test. Senator Daniel Patrick Moynihan went so far as to declare “ideological tests for the judiciary” a form of “corruption.”

In 1988, both major party candidates disclaimed having any litmus tests for Court appointments. Four years later, then-incumbent George H.W. Bush again rebuffed accusations that he had any litmus tests. Bush supporters attacked Democratic nominee Bill Clinton when he indicated that a commitment to upholding Roe would be a requirement for his Court nominees. Clinton and his advisors tried to steer clear of the litmus-test label. They ultimately chose largely to sidestep the Court as a campaign issue.

In 2000 and again in 2004, George W. Bush came out strongly in support of a pro-life position on abortion, yet he too insisted he would not make opposition to Roe a litmus test for his Court appointments.

The 2016 election shattered what previously had been a stable precedent that presidential candidates must openly reject litmus tests for potential Supreme Court appointments. In the Democratic primary, Bernie Sanders declared that his nominees would have to be committed to overturning Citizens United, even embracing the previously verboten “litmus test” label. Clinton matched Sanders by also stating opposition to Citizens United would be a litmus test. She then upped the ante by declaring that she would have “a bunch of litmus tests” for her nominees.

Clinton: ‘I have a bunch of litmus tests’ for Supreme Court nomineesOn the other side, Trump went on record declaring opposition to Roe and support for religious liberty and for Heller as litmus tests for his nominees.

Legal commentator and newspaper editors protested the apparent fall of the no-litmus-test norm, but their criticism had little effect on the candidates.

Whether there is any life left in the no-litmus-test norm is a question that will be answered in future presidential elections.

This post was written by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt. It is the fifth of a multi-part ISCOTUS series on the Supreme Court and the 2016 presidential election.

 

The Court and the 2016 Election—Lessons From History

When it comes to the role of the Supreme Court on the presidential campaign trail, how does the 2016 election compare to past elections? For all its precedent-shattering and unpredictable qualities, the 2016 campaign basically fell into a predictable dynamic when it came to the candidates’ treatment of the Court.

Image result for nixon supreme court

As I discussed in my earlier posts in this series on the Court and the 2016 election, although the future of the Court played a major role in the election for many voters and for advocacy groups, the candidates themselves showed relatively little interest in the issue. This limited interest only decreased as Election Day approached. In my last post, I offered factors that help explain why neither Trump nor Clinton demonstrated much interest in making the future of the Court a central campaign issue. In this post, I turn to history to show that the Court has always been a difficult issue on the campaign trail for presidential candidates. Continue reading

The Court and the 2016 Election—Explaining the Forgotten Issue

As I discussed in my earlier posts on the Supreme Court and the 2016 presidential election, although the future of the Court played a major role in the election for many voters and for advocacy groups, the candidates themselves seemed uninterested in the issue. Trump released a list from which he promised to select a nominee for Justice Scalia’s vacant seat and he made brief reference to the Court in his stump speeches, but he spent most of his time on the campaign trail on other topics. Clinton rarely mentioned the Court. When she did, it was usually in response to a direct question. The candidates’ limited engagement with the Court only decreased as they got closer to Election Day.

In this post I offer four factors that help explain why neither Trump nor Clinton demonstrated much interest in making the future of the Court a central campaign issue. Continue reading

The Court and the 2016 Election—Great Expectations

In the lead-up to virtually every presidential election over the past few decades, legal commentators and journalists have predicted that the future of the Supreme Court would feature prominently as a campaign issue. But these predictions have been consistently wrong—or at least considerably inflated. While the Court has featured as an issue on the campaign trail in every election since the 1960s, it has never been, with only rare exceptions, a prominent campaign issue.

The 2016 election was going to be different. Surely this time the Supreme Court would be one of the leading issues on the campaign trail. Justice Scalia’s death in February 2016 left a Court that was evenly divided between four ideologically conservative Republican-appointed Justices and four liberal Democratic-appointed Justices. Rarely has the direction of the Court been so clearly in the balance. When Republican senators refused to hold hearings on President Obama’s nominee to the Court, Judge Merrick Garland, Democrats predicted that their opponents would pay a price at the polls. Indeed, the justification Republicans gave for why they refused to hold hearings was that they believed the voters should have a chance to express their views on the direction of the Supreme Court. Now the voters had their opportunity. Continue reading

The Supreme Court and the 2016 Presidential Election

What role did the Supreme Court play in the 2016 election? This is the question I consider in an article that will be published in a forthcoming issue of the Chicago-Kent Law Review. The article is based on a paper I presented at a symposium organized by ISCOTUS last fall; the law review will be publishing an entire issue of articles from the symposium.

Image result for 2016 election

My article focuses how Donald Trump and Hillary Clinton used the Court as a campaign issue. My central finding is this: Although the Court was an unusually significant factor when people cast their votes in this election, the major party candidates themselves did not seem particularly interested in pressing the Court as a major campaign issue. My articles explains why. Continue reading

Dancing Away From Brown

Why in the world did Wendy Vitter refuse to declare her allegiance to that constitutional holy of holies, Brown v. Board of Education?

U.S. Supreme Court Justices of the 1953 session
U.S. Supreme Court Justices of the 1953 session

Harris and Ewing/Library of Congress, Prints and Photographs Division

During Vitter’s confirmation hearings this week, Senator Richard Blumenthal asked the federal district court nominee whether she believed Brown was rightly decided. “Senator, I don’t mean to be coy,” she responded,

but I think I get into a, uh, difficult area when I start commenting on Supreme Court decisions which are correctly decided and which I may disagree with. Again, my personal, political, or religious views I would set aside. That is Supreme Court precedent. It is binding. If I were honored to be confirmed I would be bound by it and of course I would uphold it.

Blumenthal repeated his question. Again Vitter performed her duck and weave. “I would respectfully not comment on what could be my boss’s ruling, the Supreme Court. I would be bound by it and if I start commenting on I agree with this case or don’t agree with this case, I think we get into a slippery slope.”

A video clip of Vitter’s awkward exchange on Brown soon bounced around social media. Predictably, the nominee earned mostly scathing reviews for her performance.

This isn’t the first time we’ve seen this puzzling dance around what most people consider the most uncontestable of Supreme Court precedents. At his confirmation hearing a little over a year ago, when posed this very same question by this very same questioner, Neil Gorsuch also avoided a direct answer. Senator Blumenthal asked Gosuch whether he agreed with the result in Brown. Gorsuch responded, “Brown v. Board of Education corrected an erroneous decision—a badly erroneous decision—and vindicated a dissent by the first Justice Harlan in Plessy v. Ferguson where he correctly identified that separate to advantage one race can never be equal.” Blumenthal reiterated his question: did Gorsuch agree with the result in Brown? “Senator, it is a correct application of the law of precedent,” Gorsuch responded. The senator noted that when John Roberts faced this same question in his confirmation hearing, he said simply “I do.” “Would you agree with Judge Roberts?” Blumenthal pressed. Gorsuch still resisted the obvious one-word three-letter response. He instead offered a tentative, roundabout, but seemingly affirmative answer response: “Senator, there’s no—there’s—there’s no daylight, here.”

Since Vitter’s artless performance was basically a replay of the strategy Gorsuch deployed more skillfully at his confirmation hearing, we can assume that the Brown bob-and-weave is the current strategy for Republican-nominated judicial nominees.

What’s going on here? Why don’t these nominees take the less controversial and less awkward path and just straight up say: “Brown was correctly decided. Of course I agree with Brown. Next question?”

Commentators have offered three different explanations. One I don’t believe is plausible; the other two make more sense. But none seem strong enough to justify the tactic.

The explanation I find implausible is that the reason these nominees have so much trouble simply expressing their support for Brown is that they are opposed to or ambivalent toward racial desegregation. This is the line Democrats and liberal groups have pressed to mobilize opposition to Vitter’s nomination.

The reason this strikes me as an implausible explanation is that even if, for the sake of argument, we assume a nominee truly held such beliefs, and if that nominee wanted to convey this point, the nominee could simply say so. This would never happen, of course, because expressing such an openly racist position would be automatically disqualifying. This being the case, why, as a strategic matter, would a nominee who hypothetically held such retrograde attitudes want to shine a light on this fact by botching the Brown question? If skeptical senators were truly worried that the nominee was an avowed segregationist, they could just ask the nominee straight up: do you support racial segregation? She would, of course, deny the charge (as Vitter did later in her testimony, when given the opportunity by a supportive Republican senator). It’s hard to think of why it would make any strategic sense for a racist nominee—who would of necessity have to lie when faced with the “are you a segregationist?” question—to not just lie when faced with the “do you accept Brown?” question. In this sense, Brown doesn’t work as a dog whistle; it’s just a regular whistle, loud and clear.

A more plausible explanation is that difficulty with directly embracing Brown stems from concerns some conservative jurists have with the reasoning the Court used to arrive at its landmark ruling. Originalists, in particular, are often put on the defensive when asked to explain how their preferred approach to constitutional interpretation squares with Brown. In Brown, Chief Justice Earl Warren quite explicitly rejected the history of the framing and ratification of the Fourteenth Amendment as a basis for his ruling, relying instead on twentieth-century understandings about the role of public schools in American society and the harms of racial segregation. Justice Scalia got so exasperated with this line of challenge to his jurisprudence that he called it “waving the bloody shirt of Brown.” Maybe these nominees’ unwillingness to just say Brown was correctly decided indicates lingering doubts with the way in which the Brown Court arrived at its holding.

While this explanation identifies a perceived vulnerability for some conservative jurists, it too is insufficient to fully explain the chosen tactic. After all, Justice Gorsuch, in his exchange with Senator Blumenthal, eventually came around to basically saying that Brown was justified on originalist grounds. This is a position Justice Scalia also came to embrace, and various originalist scholars have gone to great lengths to try to support this point. So even if these nominees wanted to take issue with how Warren went about arriving at his decision, they could simply say that Brown was correct, but that they would have taken a different path to reach the holding.

This then brings us to the explanation the nominees themselves offer for the Brown duck and weave: they want to avoid saying anything of substance on any Court ruling, and they are unwilling to make an exception for Brown.

Here was what Gorsuch said at his confirmation hearing: “If I were to start telling you which are my favorite precedents or which are my least favorite precedents or if I view a precedent in that fashion, I would be tipping my hand and suggesting to litigants that I’ve already made up my mind about their cases. That’s not a fair judge.” Gorsuch went on to explain that he wanted to avoid “giving hints or previews or intimations about how I might rule.” This was also the explanation that Vitter was struggling toward in her response to Blumenthal. And it is the explanation that Vitter’s defenders have offered.

But I still have difficulty seeing why a nominee who has a general policy of avoiding discussion of precedents would not make exceptions for certain well-settled cases.

Let’s apply Gorsuch’s explanation to Brown. The reasoning here would seem to be that if a nominee unequivocally accepted Brown as correctly decided, then a potential litigant who walks into the Supreme Court hoping to get the justices to overturn Brown would somehow be disadvantaged because one or more of the justices had already expressed the opinion that the decision was correct. And this would not be fair.

Can this be right? Of course a lawyer who walks into the Court expecting the justices to overturn the most revered decision of constitutional law is going to know that she is walking into a judicial buzz saw. Who are we fooling here? Put another way, do we really want a judicial system in which no precedent can be regarded as solid? Do we really want a lawyer who dreams of interring Brown alongside Plessy and Lochner in the dustbin of constitutional history to feel she has a fair shot, that she’s going to be speaking to a bench that is completely open-minded on this question?

This question is at the heart of an important forthcoming article in the Chicago-Kent Law Review by Lori Ringhand and Paul Collins. Here’s what they conclude:

[C]onfirmation hearings function as a high-profile public forum in which we as a nation affirm our shared constitutional commitments. If future nominees follow Gorsuch in refusing to provide firm opinions on even our most iconic cases, we lose an important tool in ensuring that the individuals selected to serve on the Supreme Court accept the constitutional settlements reached by each generation of Americans.

Ringhand and Collins raise a key issue here, one that often gets lost beneath the posturing and politics that characterize judicial confirmation hearings: What can we expect to achieve from these hearings? It may be too much to ask for a rigorous debate over constitutional principles. It may be too much to ask for deep insights into a nominee’s thinking on the most pressing of constitutional controversies. But is it too much to ask that we use confirmation hearings as opportunities to recognize that in our moment of ideological fracturing, there remains—or at least should remain— a constitutional common ground on which we all stand?

This post was written by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.