Interview with Michael J. Klarman, Winner of the 2005 Bancroft Prize

HNN asked Mr. Klarman to discuss his book and the award. The interview was conducted by email.

You write in your preface that "I signed a contract to write this book in the spring of 1998, but in some sense I have been working on it since the first semester that I taught constitutional law at the University of Virginia School of Law—the spring of 1988." What made you decide after a decade of scholarship on race in legal history that prompted you to write a full length book on the topic?

I started thinking about writing a book around the time my 1994 Journal of American History article on Brown 's backlash was published. My interest in race intersected with my interest in the Supreme Court, how it functions, the relationship between the Court and public opinion, and the often complicated and unpredictable consequences of Court decisions. Having figured out (at least provisionally) what I thought had happened in Brown and how it had affected the larger world of race relations, it was natural to work backwards toward Plessy v. Ferguson, which seems a natural bookend to Brown . But a lot of the project really emerged out of one of the classes I began teaching around 1991--a course on Constitutional History from Reconstruction to Brown . Many of the ideas from that course ultimately found their way into the book.

Besides the fact that Brown vs. Board of Education is considered the most important Supreme Court decision of the twentieth century, what led you to develop such an interest in the journey for civil rights?

My interest in (some would say, fixation upon) Brown comes from being a Constitutional Law professor. Anyone who teaches Constitutional Law ultimately has to make peace with Brown v. Board, which is one of the most famous and important cases in the Court's history. To me, making peace with Brown involves two separate issues. First, there is the normative question--why is Brown right, which everyone today assumes it was, even though many of the justices in 1954 had significant doubts about whether striking down school segregation was constitutionally justified. Second, how important was Brown --to the civil rights movement, to our conception of the Court, to the justices' own conception of their role in American society? Those were the questions I started with.

Do you feel that your clerkship for Judge Ruth Bader Ginsburg at the U.S. Court of Appeals for the D.C. Circuit affected your career and the way you look at constitutional law?

I don't think that clerking for Justice Ginsburg affected my perspective on Constitutional Law, though I have great admiration and affection for her. It is true that we both share some doubts--perhaps unusual among political liberals--as to whether wide-ranging judicial review is a good thing. For example, Ginsburg has expressed the view that the Court may have gotten involved too quickly and too aggressively in the abortion controversy in Roe v. Wade in 1973, thereby possibly inhibiting the cause in the long term. I share the view that Court decisions can produce political backlashes when they get too far in advance of political opinion. Brown had such an effect on southern politics, though I also believe that the violent backlash produced by Brown ultimately generated a counterbacklash when northern audiences watched peaceful black demonstrators being beaten by law enforcement officers on television. I think today we're seeing such a political backlash against the Massachusetts Supreme Court ruling in November 2003 that protected same-sex marriage under the state constitution. I believe that ruling produced an enormous political backlash in the 2004 elections, including the adoption in thirteen states of constitutional prohibitions on same-sex marriage, a decisive impact on a couple of U.S. Senate races, and possibly on the presidential race in Ohio.

Who were your mentors? Did they have any impact on your writing of your book or your teaching, and if so how?

The best teacher I ever had was a political science professor at the University of Pennsylvania named Mark Blitz, who today teaches at Claremont McKenna in L.A. He was a truly inspirational teacher, and I think my interest in teaching was born in the classes I took with him as an undergraduate. There were people at Stanford Law School whom I modeled myself upon as a teacher--Tom Jackson, Barbara Babcock, Mark Kelman, Bill Cohen. But my scholarship is very different from what most Constitutional Law professors do; I'm much more interested in situating constitutional change in a social and political context than I am in legal doctrine or its intellectual history. So I don't think I've consciously modeled my scholarship on that of any law professor. There are many historians whose work I hugely admire: Eric Foner, Ed Ayers, David Potter, Stanley Elkins & Eric McKitrick. But because I'm mainly interested in historical questions that intersect with Constitutional Law, it's the scope and ambition of their work that inspires me more than their methodologies. In legal academia the people whom I have tried hardest to emulate, especially in their commitment to scholarship, are probably Bill Stuntz--a long-time colleague and now probably the nation's leading criminal procedure expert--and Mike Seidman, one of the most interesting and creative constitutional theorists around.

Did teaching your courses on Constitutional History influence the way you chose to approach the subject matter of this book?

Yes, absolutely. People sometimes talk of the synergy between teaching and scholarship, and I consider myself very fortunate to have found that to be the truth. A lot of the topics I've written about--both in law review articles and in my book--emerged from my Constitutional History courses. If you looked at the syllabus for my course on Constitutional History from Reconstruction to Brown and compared it to the table of contents of my From Jim Crow to Civil Rights, you'd see a striking resemblance. Indeed, it's sad to say that publishing the book has risked ruining that course for me because I no longer have much to say to students in class that they haven't already read in the book.

How did you research From Jim Crow to Civil Rights? Why did you rely so heavily on secondary sources in writing the book?

The book relies on a mix of primary and secondary research. Each chapter covers a different era, and in each I begin with a sketch of what race relations looked like at the time, in order to then situate the Court's decisions within that context. Because the history of race has attracted so much scholarship and because I was trying to paint a broad picture of the racial context of each era, I relied heavily on secondary literature for that part of each chapter. But the other portions of the chapters tend to rely more on primary sources.

My main primary sources were the courts cases themselves--Supreme Court and lower court--the justices' private papers, the NAACP papers (which are a gold mine of information for someone trying to assess the consequences of Supreme Court decisions involving race issues), and the Southern School News, which is a phenomenal resource for anyone interested in developments in southern education, desegregation, and southern politics from 1954 through the late 1960s.

What made you decide to write From Jim Crow to Civil Rights as "more as political and social history than as intellectual history of legal doctrine"?

There are, roughly speaking, two sorts of legal historians--those who tend to see legal change as a product of external political and economic pressures and those who take a more internalist approach, seeking to understand judicial decisions in terms of the factors that judges invoke in their opinions--the text of legal materials, judicial precedents, legal principles, etc.

My own view is that judicial decision making in the Constitutional Law area is heavily influenced by the judges' own values, and those values are partly a reflection of the broader context of the times. For example, on most important issues of Constitutional Law these days--abortion, affirmative action, school prayer, gay rights, campaign finance reform--the justices tend to divide 5-4 or 6-3, and along predictable political lines. To me, this suggests that the judges' personal values have a great deal to do with their decision making. But, having said that, the Court rarely gets significantly out of step with public opinion. For example, the Court never protected women under the Equal Protection Clause until after the women's movement, and it never protected gays until after the gay rights movement. Brown was rendered possible only by dramatic changes in racial attitudes and practices flowing out of World War II. Thus, if one wants to understand why the Court by a 7-1 vote upheld racial segregation in 1896 but then unanimously invalidated it in 1954, I think one needs to understand what was happening in the broader world of race--political, economic, social, ideological, demographic changes--because the relevant legal materials guiding constitutional interpretation didn't change in significant ways during the interim.

What do you feel was the overiding purpose of the book? How do you feel the book will impact the historiography of race relations, civil rights and constitutional history?

The purpose of the book is to use the race context to show how judges decide cases and to assess the consequences of those decisions. One of my main targets is the myth that the Court has played an heroic role in protecting the rights of racial minorities. I don't think the justices have either the inclination or the capacity to contravene dominant public opinion in the way that would be necessary to protect a truly oppressed group. When blacks were most oppressed, the Court did not intervene in any significant way to alleviate that oppression. The Court only began to protect the rights of African Americans after they had begun to exercise some political, economic and social power.

I'm also very interested in the consequences of Court decisions. Many of the Court's early race rulings were circumvented without great difficulty by white southerners. For example, the Court said as early as 1880 that it violated the Constitution to exclude blacks from juries because of their race, yet almost no blacks served on juries in the South until the 1960s. The Court declared in 1917 that it violated the Constitution to segregate the races in neighborhoods by law, but segregated housing patterns became more prevalent after the ruling.

I'm trying to convince lawyers that the Supreme Court may be somewhat less important than they think. There are still lots of people in the legal academy--fewer I believe in history departments--who think Brown v. Board created the civil rights movement. The justices themselves knew better. They were all struck by how dramatically racial attitudes and practices were changing after World War II.
This is not to say that Brown wasn't important--I think that it was--but it didn't create a movement for racial reform because one was already well under way.

As to the impact on the historiography, I'd like to convince legal historians that it's worth looking at other constitutional developments in a similar framework. Most large scale shifts in constitutional law over time, it seems to me, are ripe for explaining in terms of political and social history. For example, changes in Establishment Clause doctrine, which have been enormous in the last half-century, almost surely are best explained in terms of growing religious pluralism, shifting political alliances among religious groups, and so forth. Constitutional lawyers get fixated on the doctrine, but the doctrine isn't autonomous. It's responsive to shifting cultural attitudes about Catholicism, to the appropriate role of religion in public life, to concerns about domestic subversion and the importance of religion in the battle against communism, to the increasing political role played by Christian evangelicals in the last quarter century, etc.

Why in your opinion when lynchings of African Americans were at an all time high did the justices wait until the interwar period to intervene "against the worst abuses of Jim Crow"?

The cases the justices saw where the abuses were greatest tended to be criminal prosecutions of African Americans by southern states in circumstances that precluded fair trials. Scottsboro is a good example--8 death sentences for 9 African Americans charged with rape in mob-dominated trials with a defense lawyer appointed the morning of trial. My guess is that the Court didn't see such cases in earlier decades because such defendants would simply have been lynched. So, somewhat ironically, the Court intervened against a racial injustice only as the situation in the South improved somewhat. But this wasn't an isolated instance of the Court intervening only after conditions had been somewhat ameliorated. The Court in Sweatt in 1950 ordered the admission of a black man to a white law school on the ground that a separate black school established overnight couldn't possibly be equal. Ironically, before the 1920s southern states had provided nothing at all for blacks seeking professional and graduate education without prompting even a lawsuit challenging that obvious inequality. It turns out that it's possible to be so oppressed that litigation can't do much to help. A group needs to have access to lawyers, some financial resources, some security from physical violence for legal rights to matter.

How much do you believe post World War II Supreme Court decisions had to do with "the Cold War imperative for racial change" as opposed to national sentiment which seems to be emphasized throughout your book?

It's always hard to know for sure which of the broader forces for racial change were most important. So many different forces were at work in the post-World War II period--black migration to northern cities leading to greater black political power; the democratic ideology of the war; the greater militancy shown by blacks as a result of the war, growing levels of black and white education, the increasing urbanization and industrialization of the South. I think the so-called Cold War imperative for racial change was another important factor. The Justice Department's brief urging the Court to strike down school segregation in Brown put that Cold War imperative front and center. And justices such as Minton and Burton, who easily voted to invalidate school segregation despite conservative voting patterns on many civil liberties issues, may well have been influenced by the Cold War imperative. So I think that factor mattered, but it's impossible to know whether it mattered more or less than any of the other factors that were conducive to progressive racial change at this point in time.

You claim that "Only the violence that resulted from Brown 's radicalization of southern politics enabled transformative racial change to occur as rapidly as it did." Does this not undermine the direct importance of the decision rendered in Brownvs. the Board of Education had for the Civil Rights Movement and desegregation?

I think Brown mattered in a variety of ways: it gave much greater salience to the school segregation issue; it gave blacks reason to be hopeful about the future; it motivated blacks in the South to litigate against school segregation; and it mobilized southern whites to resist progressive racial change. I think that most whites outside of the South agreed with Brown in the abstract from the very beginning. What changed between the mid 1950s and the early 1960s was their willingness to actually do something to implement that abstract commitment. It seems pretty clear that what finally motivated northerners to demand civil rights legislation was the violence used to suppress civil rights demonstrations at places like Birmingham and Selma.

What I've tried to do in the last chapter of my book is to show a direct connection between Brown , the radicalization of southern politics, and the resort to such violence. I don't think this minimizes the importance of Brown . It simply shows that the consequences of Court decisions are often complicated and unpredictable. And I don't buy the argument that Brown mattered greatly in educating white Americans to condemn racial segregation. There is ample evidence that Americans don't take moral instruction very well from the Supreme Court. For example, consider the popular reactions to Court decisions threatening to invalidate the death penalty or condemning school prayer (or, even more pertinently today, the reaction to the Massachusetts Supreme Court decision in November 2003 protecting a right to same-sex marriage). There's little reason to believe those rulings educated many people to agree with the Court. I don't see much evidence that Brown was any different in this regard.

In your conclusion you write, "The antimajoritarianism of the Senate raises the interesting possibility that the Court's race decisions from the 1920s onward may have reflected national opinion better than did Congress's (in)action." Why do you believe that the Senate was more antimajoritarian than both the Supreme Court and the House, when especially in the latter part of this time period approximately half the coutry supported desegregation?

The House passed antilynching legislation in the 1920s and 1930s and opinion polls demonstrate that a majority of the public supported such legislation. The House passed anti-poll tax laws every two years in the 1940s, and opinion polls showed about 70 percent of the public supported such legislation. The Senate refused to pass either sort of civil rights legislation. The Supreme Court in 1944 invalidated the white primary at pretty much the same time that the Senate was blocking passage of the anti-poll tax law. I think that's pretty good evidence that the Court actually was more reflective of popular majorities than was the Senate. The same is true in the 1950s when opinion polls show that half the country supported Brown, yet Congress wouldn't have dreamed of passing civil rights legislation requiring school desegregation.

From your book it becomes clear that you believe that the justices' views coincide with the changing views of the country. Do feel that the "social and political contexts of the times" that had affected the Supreme Court's decision regarding Brown vs. Board of Education also affected its ruling in Roe vs. Wade? In your opinion, was the climate in the country right for this decision, especially since the country still remains divided in half on abortion?

Yes, I think my basic claims about the Court's role in the race relations context are applicable in other areas as well. You mention abortion. I don't think it's any accident that the Court decided Roe v. Wade in the wake of the women's movement rather than in anticipation of it. The justices wouldn't have dreamed of invalidating restrictions on abortion ten years earlier, when even the ACLU was not challenging them. The Court just doesn't play this vanguard role. It speaks volumes that by the time the Court decided Roe, half the country agreed with that decision, much as I argue was the case with Brown. There are a few occasions when the Court intervenes against majority opinion, as with school prayer, flag burning, and certain criminal procedure rulings. But even on those occasions, the Court usually has a good 30-40 percent of the country on its side.

The difference between Roe and Brown is that public opinion on the former really didn't shift much after the Court's ruling whereas with Brown, the country in the next couple of decades fell in line behind the Court. I think that pretty much explains why Brown is widely celebrated as a noble, visionary decision and Roe is still intensely controversial. Sometimes the justices do a better job of predicting the future than at other times.

Do you believe that the Supreme Court should have heard the Schiavo case? In general should the Supreme Court get involved in the right to life issue?

I don't think there was any federal issue in the Schiavo case. More generally, the justices have been reluctant to get involved in the issue of assisted suicide because of their perception that in Roe they got involved too quickly, with the result that for the next 30 years they were the targets of extraordinary animosity from religious conservatives. In 1997 the Court was asked to declare a constitutional right to physician-assisted suicide, at a time when only one state--Oregon--had recognized such a right through the political system. It was clear from the oral argument in that case that the justices were determined not to repeat their "mistake" in Roe by preempting a popular debate on the issue.

Did you ever imagine the reception your book would have when you initially signed your book deal?

No, I was trying to write a book that would interest law professors, lawyers, and historians interested in legal issues. When I started the book, I had not thought of Brown 's 50th anniversary in 2004. Someone pointed out to me in early 2001 that this was an anniversary I should work hard to hit. Brown 's anniversary attracted extraordinary attention, not just in law schools but in the popular media. It was because of that anniversary that my book got reviewed in places like the New Republic and the New Yorker, that I was invited to contribute an essay to the Nation and an oped piece to the New York Times, and that I appeared on National Public Radio on the date of the Brown anniversary. I don't think the book would have gotten nearly that much attention in the media had it not been for the Brown anniversary. And when I started the book I wasn'tthinking about such things at all.

Has winning the Bancroft Prize changed your life and how do you feel it will change your career?

I don't know if winning the Bancroft has changed my life. I've tried to leverage the award into greater respect at home, but my wife and kids just aren't that impressed. It's a huge honor professionally, especially for a law professor. As far as I can tell, only one other law professor has ever won the award--Morty Horwitz at Harvard. It's so hard appealing to such disparate audiences--law professors and historians. They are interested in different issues, employ different methodologies, and have very different expectations about scholarship. Winning the Bancroft tells me that I was more successful in bridging the divide between academic disciplines than I could reasonably have hoped. This is a huge source of satisfaction to me.

Related Links

• Brown v. Board of Education, Fifty Years Later