WHAT I REALLY THINK ABOUT THE LAW (AND LAWYERS)

AN ESSAY

For almost a year now, I have written essays and satires criticizing “the law.” Some mock the legal profession. Others mock the inane factual intricacies of the common law. Still others criticize the unfair power relationships underlying so much contemporary legal doctrine. Still, when I criticize “the law,” I am not advocating anarchy. I am actually criticizing something much more subtle, including people who use law for bad purposes. When it comes to human law, there are men who win and men who lose. It is “game-like.” Some men sit as judges between other men who desperately want to win. It is not neutral because men are not neutral by nature. Men use the law to advance their own causes, whether to protect or acquire property or to condemn men’s bodies to pain. It is instrumental, not academic. Yet human law is supposed to be detached, at least in theory. It is supposed to represent larger principles, not petty interests. But in using law, men pervert principles for their own gain. They could care less whether they do “abstract justice.” This tension represents the focal point of my criticism.

Interestingly, I had to study law for years before I could safely formulate these views. I came from a family that ridiculed lawyers. I was told from an early age that lawyers were “sleazebuckets,” “liars,” “thieves” and “gladhanders” who said anything necessary to make a few dollars. My parents labeled them “rude,” “impolite,” “unscrupulous” and “mean-spirited.” My father had one encounter with the civil justice system in his life. He often recounted it to me. During a deposition about some air conditioning sale gone wrong, the opposing lawyer cast spiteful doubt on every single thing he said. He said it made him feel horrible. He said the lawyer gave him the impression that he thought my father was lying about everything, when in fact he was telling the truth. He also said the lawyer asked convoluted questions in such perplexing language that he could not even really figure out what he wanted to know. Then, after the deposition ended, the opposing lawyer and my father’s lawyer joked around and talked about playing golf on the weekend, as if the foregoing inquisition had been “just another day at the office.”

These pejoratives burrowed deeply into my consciousness. I did not harbor good impressions about lawyers. In my early experience, I did not know many lawyers firsthand. They seemed rather boring and aloof. More often, I saw them mocked in television shows, movies, jokes and literature. These lampoons commonly tracked my parents’ criticisms: lawyers were unethical, mean, ridiculous, fast-talking, text-parsing word-benders determined to make money no matter what. Even Shakespeare’s generation pronounced the dominant judgment on lawyers: “The first thing we do, let’s kill all the lawyers.” King Henry VI, Part 2, Act IV, sc. ii. Apparently, for centuries people have just not liked the way lawyers make them feel. In a word, my upbringing taught me that lawyers were “bad” because they condescended to any artifice to win arguments, all the while manipulating inscrutable language. In essence, lawyers were “bad” and “mean” because they did not speak plainly. And because they “did it all for money.”

But somehow I wound up in law school. Perhaps I was fighting against my own nature when I decided I would study law. At the time, I just wanted an income in life. I studied literature in college. To my chagrin, I found no “literature firms” that paid living wages. In my early twenties, I had knowledge—some would say “useless knowledge” because it did not readily translate into “corporate employability”—but no trade. Yet I needed a trade to pay rent and buy food. I struggled with this for a while. I bounced around doing translations and freelance German-language jobs. I jostled my brain to figure out how to bandy my existing knowledge into a paycheck. Ultimately, I settled on the law because it involved language, rhetoric, writing and—in some sense—government and principle. Despite all my childhood distaste for lawyers, I nonetheless came to understand that there was something redeeming about the law, something intangible and good. I always loved studying history, philosophy and government. I knew that law played a role in these disciplines. It may not have been obvious, but I knew it was there. There was a “hidden allure” in the law beyond mere squabbles for property. It could bring about positive social change and cut through injustice. I did not know how it did these things, so I decided I would learn how it did. At the same time, I said to myself: “I’ll find out what the law is really all about and I’ll get a paycheck in the end, too.” This is how I landed in law school.

Six years later, I can confidently say that you will never meet a lawyer who detests the law as much as I do. Yet there is more to that statement than meets the eye. I learned that the law does indeed prompt the criticisms my parents taught me as a child. But I also confirmed that there is a “hidden allure” in the law that undermines those criticisms. I came to despise the law because—on the whole—the law’s negative characteristics outweigh its positive characteristics. Practice wins over theory in the law, even though much legal theory is thematically pleasing. In short, there is profound tension in all legal discourse. There is tension between practice and principle. Principles transcend; practice does not. Principles exist no matter what result follows in a particular case; practice aims solely to achieve particular results. Principles work only when their adherents follow them; practice demands “flexibility,” even if that means abandoning principle to win. In my “legal career,” I fell in love with principle because principle represents something larger than winning. That made me a terrible practitioner. Law firms do not want discerning legal scholars who insist on adherence to principle. They want discerning legal scholars who are willing to ignore, manipulate and distinguish principle in order to win a case and make money for the firm. This is what repulses me about the law: Principles are all well and good; but principles don’t pay.

Still, not all legal principles are good. I do not restrict my criticism to shameless legal practice. The law indulges in pure intellectual foolishness, too. For example, many lawyers proudly say that we live under the “rule of law.” The “rule of law” requires that government reference written laws and follow authorized procedures before taking adverse action against men’s bodies or property. Government must act according to verifiable law or not at all. There are great advantages to this theory. It prevents “tyranny” because it stops government from arbitrarily imprisoning people or seizing property. It bars government from harming people based solely on individual caprice or ill-will. In that sense, the rule of law cuts down on arbitrariness and “unreasonable conduct” in government. Additionally, by imposing rigorous procedures on government power, everyone theoretically has a chance to defend themselves prior to adverse action. In theory, everyone can know the laws under which government acts.

But the “rule of law” can lead to absurdity, too. After all, if government can act solely according to law, what happens if laws are evil? The government can be evil? In short, the rule of law can insulate the government from internal challenge as much as it can help to ensure order and transparency. Lawyers tend to think that as long as something is “written in law,” it is “right,” even when common decency, intuition, conscience or natural feelings of justice might dictate a contrary conclusion. For example, the “rule of law” in 1954 dictated that government could lawfully segregate African-Americans and whites in public accommodations. Lawyers in the Brown v. Board of Education case could point to no written law requiring that blacks and whites enjoy equal access to public accommodations. In fact, written law explicitly authorized segregation. Yet the Supreme Court ignored the rule of law in that case. It said that the Fourteenth Amendment’s Equal Protection Clause did not tolerate “State-sponsored racial segregation” because such segregation stamps blacks with a “badge of inferiority.” I agree with the Court, even though no written law directly supported its conclusion. But under the “rule of law,” this was an abysmal decision. If the Court had been truly faithful to the rule of law, it would have followed precedent and applied the law as written. At the time the Court decided Brown, there was nothing in the law about “badges of inferiority” or “psychological trauma.” It made these things up. In short, the Court did not just look to the law to render its decision. It looked to principles beyond the law, or at least implied in the law.

To our ears, this sounds courageous. It even sounds noble. But as a technical matter, the Court disparaged the “rule of law” in Brown. In this sense, Brown provides a fine example for the proposition that the “rule of law” can enslave as much as it can protect. When it comes to the rule of law, the result depends on what the law says, not what conscience or justice says. When the law is bad, the result is bad. Viewed strictly, judges have nothing to say about it.

Yet Brown also shows that inspiring principles do sometimes penetrate the law. I love Brown because it testifies to the “intangible allure” hidden in the law. It shows that justice and “natural right” do sometimes prevail over unjust written laws. And more importantly, it shows that justice and “natural right” constantly pull against the law, even if they disrupt its “orderly administration.” Justice always looms in legal questions. Often legal rules are consistent with justice. Sometimes they are not. In theory, judges and lawyers are not allowed to consider anything beyond the law. That is another reason why I criticize the law: It makes it difficult for judges and lawyers to follow their conscience. Rather, it induces them into a “culture of compliance” in which wooden adherence to written requirements supplants principle. In Brown, the Court refused to “comply” with unjust written requirements. Unfortunately, that does not happen very often. More often, judges and lawyers simply follow the path written in the law; and most troublingly, it rarely bothers them.

My struggles with the law mirror the tension between written law and intuitive justice. I think the tension between law and justice fascinates many people, not just those who have studied law. Movies like The Dark Knight become popular because they tap into this fascination, challenging the idea that the law is supposed to deliver justice, or even cares about it at all. At the same time, people confuse the law with justice. They expect the law to deliver results that are consistent with their intuitive sense about what it is right. Often, they discover to their horror that written law dictates a far different result. Those unlucky to be caught up in civil litigation quickly lose all illusions about lofty principles as cases drag on for years, costing both sides millions while lawyers battle over schedules and copy costs. Moreover, when people “get to know” lawyers, they do not see men and women committed to finding justice. Rather, they see men and women committed to complying with technical requirements in precisely such a way as to avoid punishment and to maximize their chances of winning (and fees). Professional ethics rules provide the best example for the proposition that lawyers do not need a conscience to win: They just need to follow what the rulebook says, even if they have no respect at all for the spirit behind the rules. This is the spiritual and intellectual vacuum that flows from fanatical commitment to the “rule of law.” Justice has no place in such a technical maze. It is all about compliance. If compliance results in justice, fine. If it doesn’t, that’s fine, too. In both cases, it’s “legal.”

These are the reasons why I despise the law. But it is a selective repugnance. I do not like the law for its fanatical devotion to form, compliance, technicality and procedure. I do not like the law for its tendency to lure people to believe that its “administrative rules” lead to justice. I do not like the law because it teaches practitioners to ignore conscience and principle when pondering questions that involve both. I do not like the law for the “culture of compliance” it creates in order to replace intuitive justice. In short, I do not like the law because there is nothing noble about complying with rules, especially if they are bad.

Yet I love the law for the brightness it offers. There are principles in the law that offer avenues to justice. There are principles in our Constitution that exalt individual rights, conscience, belief and self-definition against government power. Daring judges and lawyers see the brightness in these principles and apply them to break stultifying legal traditions. While I believe in the rule of law to the extent necessary to protect individuals from tyranny, I do not blindly comply with unjust rules because they are rules. Nor do I feel just for complying with rules simply because they are rules. Rather, I put my trust in principles that may not find expression in written law. And I truly care about those principles, even if they are not profitable.

This makes me a renegade among lawyers.

A RESPONSE TO DAVID BROOKS : INSTITUTIONAL THINKING IS FOR WEAKLINGS

Two days ago, New York Times columnist David Brooks published an editorial titled “What Life Asks of Us.” See N.Y. Times Jan. 26, 2009. In it, he argues that modern “liberal education” fosters individuality and personal self-definition, but leads also to “meaninglessness” in life. On the other hand, he argues that “institutional thinking” “saves us from our weaknesses and gives meaning to life.” I strongly disagree. Institutional thinking only gives meaning to those willing to accept the institution’s values. Meaning cannot be imposed. Meaning is subjective. To that extent, liberal education appears a far better path to meaning than institutional stricture. Only those too weak to think for themselves need an institution to “give them meaning” in their lives.

Brooks explores a critical issue: The schism between individual worth and institutional belonging in our society. The two concepts stand in fundamental conflict. On the one hand, there are institutions, which dominate conventional thought, property relations and “success” in America. On the other, there is individuality, which represents every human being’s unique perspective on the world, unguided by institutional dogma. To some extent, it is impossible to survive in this world without recourse to institutions. We all must contend with schools, employers, churches, families, courts, governments and even the post office. We must find our place within institutions to gain the credentials necessary to fend for ourselves. These are not “individualistic” pursuits. These are institutional challenges. We either follow the path set for us by the institution, or we do not receive the institution’s blessing. Without the institution’s blessing, we cannot fully realize our individual potential.

What is an institution, anyway? I thought about consulting the dictionary on this question, but I think it better to offer a definition tailored to the concepts at issue here. In this context, an “institution” is any human organization, endeavor or enterprise accepted as an authority over specific subject matter involving other human beings. This is a broad term. But it encompasses the most significant aspect about institutions: They are authoritative. Institutions impose rules and procedures on their adherents. They control knowledge and create hierarchies. If one does not accept the institution’s judgments, one must either face punishment or otherwise “fail.” And in every case, the institution has power over the adherent. The adherent is a “student,” “employee,” “practitioner,” “devotee,” “soldier,” “patient” or “prisoner.” He is an inferior party. He must take orders from someone with a higher station in the institution. In this system, individuality is only important to the extent that it supports the institution. It has nothing to do with personal meaning or definition. One either plays by the rules or fails. David Brooks calls this “meaning.” I call it imprisonment.

What, then, is “institutional thinking?” Institutions are systemic. They function like machines. Every man has his place in the system, and every man must play his part. When a man follows his appointed role properly, he is rewarded. He may even advance higher in the institutional hierarchy. But if he is too willful, or if he does not follow his appointed role, he faces harsh consequences. In school, the student may fail or be expelled. In prison, the prisoner may be thrown into solitary confinement. In the military, a soldier may be court-martialed. In the criminal justice system, a citizen may be branded an “outlaw” and punished accordingly. To avoid these fates, people in institutional settings must “act appropriately.” They must tailor their thoughts and behavior to institutional values and norms. If they “think institutionally,” they will succeed. They will please their institutional masters. But if they do not, they face negative consequences. Institutional thinking, then, represents a perverse form of loyalty. The adherent forgoes thinking for himself and follows the procedures that the institution expects. By yielding his individuality, he “finds institutional meaning.” In other words, he finds his “function” within a larger system.

How does liberal education fit into this calculus? Liberal education and individual self-definition tend to go hand in hand. As David Brooks explains: “The aim of a liberal education is to unsettle presumptions, to defamiliarize the familiar, to reveal what is going on beneath and behind appearances, to disorient young people and help them find ways to reorient themselves.” Put another way, liberal education leads students to “question preexisting arrangements,” “examine life from the outside and discover their own values.” Liberal education deliberately exposes students to far-reaching, widely diverse knowledge from all over the world. It does not restrict itself to a particular viewpoint. In so doing, it breaks down the student’s preconceived values and replaces them with a healthy, inquisitive skepticism. Liberal education reconstitutes the mind and emboldens individual perspective. By studying across the gamut of human knowledge, students learn that no single argument and no single institution has a monopoly on truth. And in the end, they learn that they do not have a monopoly on truth, either. They have only their own minds, memories, impressions and emotions to formulate truth. This is true “individualism.”

Yet liberal education is inappropriate training for the institutional world that awaits graduates. After four years of exploration, iconoclasm and reinvention, they emerge into a world that demands institutional obedience. They take jobs in the private sector. They occupy the lowest rung in the institutional hierarchy. They are no longer individuals; they are now “Employee #4452A-L: Assignment: Word Processing Design.” Their wide exposure to diverse viewpoints will not serve them as they struggle to fulfill their superiors’ demands in the company. If they wish to succeed, they must stop thinking individually and start thinking institutionally. Those who cling too strongly to individuality and the values of liberal education cannot adapt to institutional thinking—and they fail. But they are not discouraged; they must simply find another way in life. Contrary to David Brooks’ assertion, there is certainly “meaning” beyond institutions. One must simply be daring enough to find it alone.

Not everyone is daring. Life would not be interesting if they were. To borrow from Friedrich Nietzsche, we cannot all be Zarathustra. Yet those who truly digest the values of liberal education feel the urge to become Zarathustra. Nietzsche put it best when he railed against “Good People” in Thus Spoke Zarathustra (1884)(my translation): “The Good People must crucify anyone who invents his own virtue! That is the truth! But there was a second man who discovered their land, the land, heart and earthly kingdom of the Good People and the Just People: the man who asked: ‘Who is it whom they hate most?’ He who creates; that is he, whom they hate most; they hate the one who breaks tablets and old values, the breaker—they call him ‘criminal.’” Von Alten und Neuen Tafeln 26 (Of Old and New Tablets verse 26).

Nietzsche’s metaphors apply squarely to “institutional thinking.” “Good and just people” follow the institutional path in life. They do not create their own virtue; they merely recite the “tablets” and observe “old values.” They would not rise within the institution if they did not conform their thinking to “the tablets.” And Nietzsche brings out another key characteristic of institutional thinking: It hates. To continue the metaphor, institutions have no tolerance for those who “break tablets and old values,” because “tablets and old virtues” represent the institution’s defining traditions and protocols. Institutions define themselves against anyone who dares to break their codes, just as a court brands a deviant a “criminal.”

David Brooks suggests that we should not dare to be Zarathustra. We should not dare to find our own truth in life, nor should we break tablets. Rather, we should become “good and just people” who merely follow “the tablets” and old values. He says that we can find “meaning” by giving ourselves to institutions. He may be right in some cases, for not everyone has the strength to hew his own path in life. In fact, most people do not. Institutions can supply a “roadmap to meaning” for all those people who do not have the courage, capacity or strength to be Zarathustra. Most people simply want comfort in life, with minimal challenge. Institutional thinking offers an easy path to that destination. One must merely understand the institution’s requirements, acknowledge one’s place in the hierarchy, follow the protocol and do as one is told. In the end, this may bring comfort and even a sense of “having done the right thing.” But is it really the right thing? In my view, institutional thinking means playing by others’ rules. What good is life if we cannot even follow our own thoughts? Surely there are other paths to “meaning” than surrendering one’s existence to institutional dogma.

David Brooks’ article deeply affected me because I always reflect on my unconventional approach to life. I took my liberal education to heart. I relished my time in the world of ideas. I enjoyed exploring problems from numerous perspectives. It broadened my enthusiasm for life because it made me see how multifaceted life can be. Yet that very enthusiasm led me to despair once I saw that “success” depends on membership in a constricting institution. It seemed that my education had been a cruel joke: Struggle to reinvent yourself, learn to be your own person, then go out into the world and be the same as everyone else. I learned to prize and defend individuality; then I found it meant nothing in a world dominated by institutional thinking. In the years that followed, I have tried my best to adhere to my individuality, despite constant needling from institutions. After all, most people define themselves by institutional standards, and as Nietzsche pointed out, they hate anyone who does not subscribe to those standards. It has not been an easy path, but I am unbowed. After all my effort, I do not like to hear authors like David Brooks admonishing me to “get with the program” by adopting institutional thinking. I have not surrendered and I do not plan to. Contrary to Brooks’ advice, I do not allow institutions to “ask things of me.” Let others find meaning in institutional standards and protocols. Let them—as Nietzsche wrote in Human, All-Too Human Part II (The Wanderer and His Shadow)(1879)—“dance in chains.” Menschliches, Allzu Menschliches, Teil II, Der Wanderer und Sein Schatten Aph. 140.

I will simply dance, thank you very much. I will leave others to put on chains. In either event, I will find meaning. I do not need to chain myself to an institution to do that.

UNCLE THOMAS STRIKES BACK : RACE IN THE ROBERTS ERA

SUPREME COURT FOLLIES

With each passing year, my faith in the United States Supreme Court dwindles. When I studied law, I respected the Supreme Court’s work. I had respect for the Supreme Court because it largely made decisions that attempted to redress historical wrongs in the United States. In so doing, the Court sided with individuals against the Government and expanded individual liberty against contemporary oppression. But my respect for the Court began to sour as I read more recent decisions. Beginning in the 1970s and 1980s, the Court began to dismantle many of the advances it made during the 1940s, 1950s and 1960s. In the 1990s and up to the present day, it retrenched even further. In days past, a “liberal” justice was willing to create new constitutional rights from the “majestic generalities (hats off to Justice Robert Jackson, writing in the 1940s)” contained in the constitution’s text. Today, a “liberal” justice merely refuses to overrule daring decisions made in an earlier time. And in most events, even a modern “liberal” justice will qualify, explain and limit older decisions until they lose all their force.

Interestingly, many people believe that the Supreme Court stands for justice. Before I studied law, I could name only one Supreme Court decision: Brown v. Board of Education, 347 U.S. 383 (1954). In that case, I knew the Court forbade racial segregation in public schools. That symbolized a bold, dramatic commitment to liberty, even when Congress and the President did nothing to correct the problem. When I later began learning the technical process by which the Court made its decision, I did not lose respect for the Brown justices. In essence, they took constitutional text and breathed contemporary life into it. Nothing in the Constitution’s literal words gave them license to forbid segregation in public schools. But they understood the spirit behind the words in order to do justice. That warranted my respect and admiration.

What words did the Court in Brown examine to forbid segregation in public schools? They examined the Fourteenth Amendment, Section 1, specifically: “No State shall…deny to any person within its jurisdiction the equal protection of the laws.” Using those words alone—and some social science studies—the Court satisfied itself that racially segregated school systems branded African-Americans “inferior” and denied them “equal access to public education.” Without equal access to public schools, African-Americans did not enjoy “equal protection” under law, and therefore the segregated school systems violated the Constitution.

Very few Americans—even conservative Supreme Court justices—disagree with the result in Brown. But I wonder whether they agree with Brown simply because it is an old decision, or because so much popular mythology has grown up around it. After all, the Supreme Court was not simply deciding a technical constitutional question in Brown. It was deciding a much more fundamental question, namely, whether the United States stands for equality.

America has struggled in its relationship with equality. Equality represents an intractably awkward tension point between principle and practice. After all, The Declaration of Independence assures us that “all Men are created equal,” yet at the time, slaves of African descent made up 20% of the Nation’s population. Against that background, America’s rhetoric about equality, dignity and justice rang hollow. How could a Nation of liberty, after all, lay claim to justice when it practiced human slavery in its own borders? This critical gap between principle and practice chafed against moral sensibilities in the United States and culminated in the Civil War. It was simply impossible to maintain the tortured charade of “liberty for whites, slavery for blacks” without extirpating slavery altogether. It was simply too disingenuous for the Nation to continue along that hypocritical path.

After the Civil War, America made efforts to flesh out the “equality promise” it made in the Declaration. The Fourteenth Amendment represents the boldest legal step to secure equality for all in the United States. The American people—by democratic supermajority—declared that “No State shall” make laws disfavoring blacks. In large part, Americans fought the Civil War to correct the patent injustice of maintaining a slave class in a Nation of liberty. Now, they aimed to correct history’s error by enshrining equality in the Constitution.

Despite these legal efforts, practical equality never really took hold in the United States, at least for black Americans. Emerging from slavery, they faced rampant private discrimination, unemployment, mob justice and an unfair inability to integrate into white society. Rather than promoting the “equality principle” that animated the Fourteenth Amendment, the Supreme Court relegated it to mere “aspiration,” holding in numerous decisions that the Equal Protection Clause only applied to State actions, not private ones. The Constitution, in other words, did not require all men to drop their racist beliefs. In fact, it was perfectly legal to discriminate against blacks, as long as you were not wearing a State uniform or receiving a paycheck from the State. Although subsequent legislation attempted to remedy some private discrimination, the hard truth remained: Blacks were shunned, marginalized and excluded from mainstream American civilization, no matter what the Constitution said.

For decades, America went its merry way. Blessed by the Supreme Court’s decision in Plessy v. Ferguson, 163 U.S. 537 (1896), States maintained a “double legal standard” for blacks. In Plessy, the Court explained that the Fourteenth Amendment does not require precisely equal advantages for blacks and whites; rather, States have a right to “regulate racial relations” within their borders, including segregating public and private accommodations. Not surprisingly, black facilities were invariably inferior to their white counterparts. But they were technically “equal,” and that allowed States to avoid restrictions under the Fourteenth Amendment.

In 1954, Brown took a bold, practical stance against this disingenuous, hypertechnical approach to equality. For the first time, the Supreme Court recognized that the racial assumptions behind segregation caused lasting psychological damage to black Americans. For its part, the Court recognized the desperation and frustration blacks felt attempting to compete in an ostensibly “equal” system that denied them every advantage at every turn. Without access to education, they had no chance to compete for jobs, nor could they transcend their largely inferior economic circumstances without employment opportunity. In essence, the Court saw that technical equality does not mean practical equality. In fact, technical equality was nothing but a thin veil obscuring a continuing, fundamental pattern of injustice against black Americans.

Brown thrilled me because it pierced to heart of the festering racial issue in the United States. Rarely has the Supreme Court ever so cogently “nailed” a question as it did in Brown. To be sure, its decision did not solve the racial problem in this country, but at least it announced that it saw through the legal charade of “technical equality.” And it saw the pernicious social effects that flow from maintaining a system that betrays the core principles that supposedly drive our Nation.

I believe that America’s race problem is the great skeleton in our Nation’s closet. All rhetoric about freedom, equality, prosperity and fairness must contend with the brutal truth that a large segment of the population does not enjoy the same advantages as all other ethnic groups. Blacks have shorter life expectancies, much higher delinquency rates and much lower incomes than whites. They consistently rank lower in academic scores and have much greater difficulties assimilating into “normal” economic circumstances. Glib critics say this is because blacks are “lazy” and “are too dependent on help from the government.” My response is that blacks suffer today because the legacy of slavery and State-sanctioned inequality is alive and well. And they struggle vainly against it every day.

There are very few true “Americans” anymore. Native populations are virtually nonexistent after centuries of European expansion, wars, plagues and forced relocations throughout North America. To be accurate, a white “American” today is actually a European. Immigrants from all over Europe populated this country. In recent decades, immigrants from Asia and Central America arrived in greater numbers. They all came to the United States voluntarily. They wanted a place to make more money or to practice their religion without persecution.

Black Americans, by contrast, did not come to this country because they wanted to. They were transplanted on this continent from Africa after a hellish trans-Atlantic crossing in which many died. Once the survivors arrived, they became commercial objects. They were used as cattle to maximize agricultural profits for white landowners. They had no rights at all; indeed, the law did not even regard them as human beings. They were “property.” As recently as 1857, the United States Supreme Court said exactly that. In sum, black Americans did not make a choice to be in the United States. They were forced here against their will, exploited, tortured, reduced to property then suddenly set free by Presidential fiat. Even after Emancipation, white Americans continued to marginalize them, lynch them, force them to sit in segregated restaurants and belittle them with obviously unequal treatment. Should it surprise us, then, that they continue to suffer disadvantages? History’s wounds do not heal quickly.

In addressing the race problem in America, the Supreme Court has enjoyed several opportunities to take a stand for principle, even if symbolically. By recognizing the practical, modern disadvantages engendered by historical discrimination against black Americans, the Court showed itself willing to infuse new meaning into the United States Constitution. Sadly, the Court’s momentary compassion quickly faded.

In the decades immediately following Brown, the Supreme Court struggled to invent practical ways in which to desegregate public schools. But by the 1990s, the fire was out. There was no longer any sympathetic rhetoric in the Court’s decisions about “equality” or the “inherent inferiority” created by State-sponsored racial prejudice. Instead, the Court mechanically applied numerous limiting precedents to the cases it encountered, repeatedly cutting down on the principles it so boldly announced in Brown. It refused to even consider cases in which private actors engaged in racial discrimination because “the Fourteenth Amendment requires State action.” Worse, it invalidated attempts to help blacks through legislation. In an ironic turn, the Court today uses the Fourteenth Amendment to help whites, not blacks. During the 1990s, the Court increasingly claimed that the Fourteenth Amendment guaranteed “color-blind” governmental action, so that even governmental action intended to help blacks would not be allowed if it treated whites differently than blacks. While the words of the Fourteenth Amendment technically support this reading, a brief look at history illustrates its absurdity: Congress and the States did not pass the Amendment in 1868 because white people faced difficulties after the Civil War; they passed the Amendment to help newly-freed blacks find their way in white society. If the goal was to help whites, there would have been no reason to fight the Civil War or pass the Amendment.

In 2005 and 2006, two fresh conservative justices ascended to the bench: Chief Justice John Roberts and Justice Samuel Alito. Not surprisingly, these conservative justices continued the perplexing approach to race questions that began in the 1990s. In 2007, the new Court grappled with a school racial desegregation case: People Involved in Community Schools v. Seattle School District No. 1, 551 U.S. __ (2007). Here, the Court—by a 5-4 majority—invalidated two local school boards’ attempts to guarantee “racial balance” in their school systems because they wanted to ensure “diversity in education” for their students. The school boards reasoned that the best way to take action against the inherent inequality between blacks and whites was to guarantee an integrated educational experience at an early age. The school boards believed that “societal discrimination and its effects” made equality impossible, and societal discrimination began in racially imbalanced schools. For that reason, the districts took action against it by requiring racially balanced schools. In the boards’ view, integration was a reasonable way to nip discrimination in the bud by cultivating mutual understanding in children at an early age.

Chief Justice Roberts literally scoffed at the school boards’ principled purposes. Rather than addressing the reality of racial tension in the United States, Roberts coldly applied several conservative precedents from the 1980s and 1990s (many of which were 5-4 decisions that did not even remotely embody consensus on the Court). He decreed that the school boards had not met their “heavy burden” to invoke so-called “race-based remedies.” In the same vein, he said that “remedying racial imbalance” is not even a legitimate State goal warranting State action. Although he conceded that “diversity in college education” was a “compelling State interest” in the university and postgraduate spheres, “diversity in elementary education” was not. In fact, the school boards here went beyond the pale by simply fixing a racial “percentage” for each school district. For Chief Justice Roberts, “outright racial balancing” through “nonindividualized, mechanical means” was “patently unconstitutional.” In his view, the Fourteenth Amendment did not allow States to place “irrelevant reliance on race.” Rather, a State could use race in its decisionmaking only after “good-faith, genuine attempts” to apply “race-neutral alternatives.”

In a concurring opinion, Justice Clarence Thomas went even further than the Chief. He said that there is a “fundamental distinction” between “racial imbalance” and “segregation.” Government has no business correcting “racial imbalance,” according to Thomas, because government is not responsible for that imbalance. Blacks and whites live in different areas because they make “innocent private decisions” and “voluntary housing choices.” Government had no role to play in those “innocent private decisions,” so government is not entitled to take action against the resulting imbalance. Rather, government can only take action against “segregation,” defined by Thomas as “intentional State action to separate the races.” Applying that definition, Thomas reasoned that government has “no legitimate interest in promoting racial balance” or “integration” because those are “private concerns.” In fact, he even scolded the school boards for “imposing” racial balance on one-race schools because they appealed to “classroom aesthetics” and catered to “[hypersensitive], elite sensibilities.”

In a word, both Roberts’ and Thomas’ arguments completely scrap Brown’s bold stance on race in America. Rather than viewing racial questions with a compassionate eye, Roberts and Thomas merely recite controversial Court opinions from the 1980s and 1990s to frustrate integration. They do not even begin to address the deeper questions of inequality and injustice that lurk behind the racial question. Appallingly, both Roberts and Thomas claim that they agree with Brown. This may be true as a matter of strict form, but certainly not as a matter of spirit.

There is no risk in saying that “State-sponsored, intentional racial discrimination is not allowed in public schools.” Indeed, such blatant, State-sponsored discrimination no longer exists on the statute books. Rather, discrimination in the United States today is far more subtle precisely because it is exclusively private. Today, laws all promise equality; but individual citizens do not. In the aggregate, private decisions continue to obstruct the ultimate equality enshrined in the Declaration of Independence just as much as public laws once did. Justice Thomas says that “innocent private decisions” are not a matter of constitutional concern. How can that be? If millions of private decisions land blacks in precisely the same spot in which they found themselves in 1954, how could that not be a constitutional concern? How can he say that “racial balance” is not a legitimate interest? Is racial balance not the ultimate goal? As long as blacks perennially live in the poor section while whites live in the rich section, where is the equality? It is sheer absurdity to suggest that black Americans live in ghettos because they made “voluntary housing choices.” They live in ghettos because low-cost housing is all they can afford. They lack the skills necessary to make sufficient money to “voluntarily choose” better housing. They lack those skills because they did not receive equal education and faced a lifetime of private discrimination. If our laws preach equality yet even a cursory glance down any urban street reveals a completely contrary reality, what good are the laws? In Justice Thomas’ case, the result is doubly shocking: This is a man who avowedly benefited from programs that enabled him to integrate into American educational and governmental institutions. Now he says that other members of his race do not deserve the same preferential treatment as he did. In other words: “I got mine. Now you get yours.” That is not principle. That is regression.

I fear that we can expect more such foolishness from our Supreme Court in the coming years. That is why I have steadily lost faith in the Court as an institution. I believe that the Court must strive to grapple with the larger issues that underlie any constitutional question. Only a blind man would say that this country does not have a grievously bad record on racial equality, and we have a very, very long way to go. Even if the Supreme Court ultimately has no power to decree an end to inequality, it has a duty to endorse principles that may one day lead to that result. The Court in Brown took a brief step on that moral high ground when it candidly addressed the legacy of racial wrong that continues to mock the equality principle in America. The Court should take up that mantle in the future. And it should look beneath the literal words in the Constitution to truly flesh out its principles in light of contemporary difficulties. Until that happens, however, I truly worry what the Court will do. If recent decisions are any harbinger, I expect nothing but cold, unforgiving, technical analysis that perpetuates injustice rather than fights it.