U.S. Supreme Court nominee Brett M. Kavanaugh on Wednesday called Brown v. Board of Education “the greatest moment in Supreme Court history,” but said the nation’s efforts to fulfill the landmark civil rights opinion’s promise remain unfinished.
“It’s still decades, and we’re still seeking to achieve racial equality,” Kavanaugh said. “The long march for racial equality is not over.”
The statement came during the second day of the confirmation hearing for Kavanaugh, President Donald Trump’s nominee to succeed recently retired Justice Anthony M. Kennedy. After being asked about gun rights and school violence on Wednesday morning (which I wrote about here,) the afternoon session brought the discussions about the landmark Brown case striking down racial segregation in the nation’s schools. Kavanaugh also addressed affirmative action and religious liberty cases in education.
Kavanaugh was asked about Brown not by Democrats on the Judiciary Committee, who have often used the question to try to draw commitments on whether nominees believe precedents on abortion and privacy are settled law.
On Wednesday, it was Sen. John Cornyn, R-Texas, who asked the nominee about when it was appropriate to revisit precedent, and the exchange quickly turned to Plessy v. Ferguson, the 1896 Supreme Court decision establishing that separate public facilities for blacks could be upheld if they were equal. The 1954 Brown decision overruled Plessy.
“Plessy v. Ferguson was wrong the day it was decided,” Kavanaugh said. “It was inconsistent with the text and meaning of the 14th Amendment, which guaranteed equal protection.”
The Brown decision corrected that, “on paper,” at least, he said, before adding his observation that the march for racial equality continues.
Kavanaugh said Brown was the Supreme Court’s greatest opinion “in so many ways.”
First was the the unanimity that Chief Justice Earl Warren achieved, resulting in the court speaking with one voice. And “the fact that it lived up to the text of the equal-protection clause” and the decision “understood the real world consequences of the segregation on the African-American students,” who were “stamped with a badge of inferiority,” Kavanaugh said.
He found it significant that the court had heard arguments in the case once (in 1952), before ordering re-argument in the fall of 1953 and achieving the 9-0 decision the following spring.
“They knew they were going to face popular backlash. But they still did it. That showed independence and fortitude,” he said.
The opinion itself by Warren “is so inspirational. I encourage everyone to read it,” Kavanaugh said. “It’s a relatively short opinion, but it’s very powerful.”
Sherrilyn Ifill, the president and director-counsel of the NAACP Legal Defense and Educational Fund, was in the hearing room Wednesday and the day before, when Kavanaugh extolled his mother’s experience as a teacher of African-American students in a District of Columbia public school.
“Lets start talking about where the nominee stands on post-Brown civil rts,” Ifill tweeted. She added that she would like to see the committee ask Kavanaugh about later Supreme Court desegregation decisions, such as Cooper v.Aaron, when the court ordered the desegregation of Central High School in Little Rock, Ark., in 1957 (with a formal opinion in 1958) or Swann v.Charlotte-Mecklenberg Board of Education, when the court in 1971 upheld busing as a desegregation remedy.
Views on Racial Diversity Sought
Sen. Cory Booker, D-N.J., asked Kavanaugh repeatedly about affirmative action in higher education and other government race-conscious programs. The senator expressed concerns about Kavanaugh’s track record of agreeing with sentiments that the nation move toward “one race” and references to certain such programs as “racial entitlements” or “naked minority set-asides.”
“Supreme Court precedent allows race-conscious programs in certain circumstances,” Kavanaugh told Booker late on Wednesday.
Booker pressed him on whether the high court’s decisions upholding race-conscious programs, with some limitations, in cases such as Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas at Austin, were correctly decided.
“They’re important precedents of the Supreme Court,” Kavanaugh said, adding that he would follow the precedent of all the current justices in declining to say how he might vote on issues that might come before him.
Booker also tried it another way, asking whether Kavanaugh agreed with the essence of the court’s affirmative action cases that maintaining a racially diverse student body is a compelling governmental interest.
“The Supreme Court has said so,” Kavanaugh said. “The government effort to promote diversity in the higher education context are constitutional.”
Religious Liberty Cases Discussed
Cornyn spoke with Kavanaugh about religious speech and a case the senator himself had argued before the Supreme Court when he was attorney general of Texas in 2000.
InSanta Fe Independent School District v. Doe, the Supreme Court struck down a Texas school district’s practice of allowing student-initiated, student-led prayers at football games as a violation of the First Amendment’s prohibition against government establishment of religion.
As he did last year during the confirmation hearings for now-Justice Neil M. Gorsuch, Cornyn expressed his displeasure with the majority’s ruling and his agreement with the dissent of then-Chief Justice William H. Rehnquist, who wrote that instead of exhibiting neutrality towards religion, the court was showing hostility.
“I just marvel that under the First Amendment, a variety of voices can speak, and that’s generally a good thing,” Cornyn said Wednesday. “It can be about violence, about sexism. It can be about anything, but you can’t speak about religion in a public forum.”
Gorsuch had responded cautiously to Cornyn’s critique of Santa Fe last year, and the senator told Kavanaugh he need not discuss the case.
But Kavanaugh did not hesitate to respond, perhaps in part because he is on record in the Santa Fe case, since he co-wrote a friend-of-the-court brief in the case in support of the Texas school district.
Kavanaugh said there had been Supreme Court decisions since Santa Fe “where I think the Supreme Court has recognized the importance of religious liberty in the United States.”
He cited Good News Club v. Milford Central School, 2001 decision in which the court held that the school district violated the free speech rights of a student religious club when the club was excluded from using school facilities for its afterschool meetings. (Kavanaugh had co-written a brief in that case, too.)
He also cited Town of Greece v. Galloway, a 2014 ruling that allowed clergy-led prayers before municipal council meetings; and Trinity Lutheran Church of Columbia v. Comer, a 2017 decision that a state could not bar a church from a state grant program to improve children’s playgrounds. The latter case is also viewed as one that might help those who argue that states may not bar religious schools from voucher and education aid programs.
“Religious speech is entitled to a place in the public square and not to be discriminated against,” Kavanaugh told Cornyn. “So I think there have been some developments since [Santa Fe] on religious equality and religious liberty that are important. Those case are always difficult factually. The principles you’re espousing, I do think, are reflected in some more-recent Supreme Court precedents.”
The group Americans United for Separation of Church and State, which issued a report raising concerns about Kavanaugh’s views on religious liberty, tweeted this after his comments today: “Here’s Brett Kavanaugh listing cases he’s happy about that undermine church-state separation. ALL of these cases allow the government to unfairly promote Christianity and make non-Christians feel less American.”
The hearing was continuing on Wednesday and was to be back on Thursday.
A version of this news article first appeared in The School Law Blog.