Brown footnote eleven in historical context: social science and the supreme court's quest for legitimacy.

INTRODUCTION

In the almost half-century since Brown v. Board of Education, (1) many legal commentators have come to regard the case as a leading example of scientific jurisprudence. The Supreme Court, according to the customary view, relied on social science evidence, cited in footnote eleven of the Brown opinion, to find that racial segregation caused social and psychological harm to black schoolchildren. Based on this scientific finding, the Court held that public school segregation deprived black schoolchildren of the equal protection of the law guaranteed by the Fourteenth Amendment. Thus, it is commonly remarked, social science evidence guided the Court's constitutional decision-making process.

The idea that social science played a meaningful role in the Court's decision to strike down public school segregation--what this Note shall refer to as the "conventional narrative"--is a familiar chronicle in American constitutional jurisprudence. Legal scholars have repeatedly, if at times inadvertently, fostered this reading of Brown. Scott Brewer, for instance, has described Brown as "a remarkable culmination of the legal realist project of taming abstract legal propositions with the whip of social science...." (2) Stephen Presser has observed that "[a]t the height of the Warren Court's adventures in Constitutional law-making ... sociology and social psychology were useful adjuncts to Constitutional law, most famously in Brown's Footnote 11 ." (3) Even Stephen Breyer, while an appellate judge, noted the Brown Court's "use of social science evidence ... to determine a question of law." (4)

This Note calls for a rethinking of the conventional narrative. It puts forward two primary claims about the Brown Court's use of social science. The first claim is that the Court did not in fact rely on the footnote eleven studies in holding public school segregation unconstitutional. The Note assembles evidence beyond the footnote eleven citation itself--the Court's cursory discussion of the social science studies, its contemporary race decisions, and the statements of persons involved in drafting the opinion--to make the case that social science was wholly irrelevant to the Court's desegregation verdict. The implication is that the Brown outcome would have been the same, even had the Court not invoked empirical evidence of segregation's harmful impact on black schoolchildren.

But if the Court did not rely on the footnote eleven studies--if social science did not, so to speak, "inform the judicial mind" (5)--why did it insert the footnote at all? Why did the Court not simply propose that racial segregation caused social and psychological harm to black schoolchildren without appealing to social science evidence? The Note's second claim is that footnote eleven should be understood in light of the anticipated crisis of legitimacy brought about by the Brown opinion. The Court, according to this claim, embraced the footnote eleven studies to lend authority to its highly controversial, and legally precarious, decision to strike down public school segregation. This is not to suggest that the Brown Court strategically employed social science evidence to make its opinion more persuasive. The claim is, rather, that the Justices, anxious about the social and jurisprudential consequences of their ruling, were themselves seduced by the exalted claims of mid-twentieth-century social science.

Two caveats about the scope of the argument should be mentioned at the outset. First, the Note focuses on the Court's rationale for referring to social science in the Brown opinion. It therefore does not discuss the NAACP's strategy in bringing scientific evidence of segregation's harmful social and psychological impact to the Court's attention in the first place. (6) Nor does it evaluate the scientific validity of the footnote eleven studies, except insofar as debates concerning the studies' validity obscured the underlying question of whether the Court's decision actually rested upon them. (7)

Second, it is necessary to stress the Note's modest claim to originality in drawing a link between footnote eleven and the Court's anticipated crisis of legitimacy. In recent years, a number of historians and legal scholars--for instance, Richard Kluger, Robert Bork, and Lawrence Friedman--have suggested that the Brown Court did not rely on social science evidence in striking down school segregation; notwithstanding their efforts, much of the legal academy continues to abide by the conventional narrative. (8) A large number of commentators have also noted the Justices' anxiety, prior to announcing the Brown opinion, about the decision's likely adverse consequences for the Court's legitimacy. (9) However, skeptics of the conventional narrative have not made footnote eleven the subject of sustained critical inquiry. Nor have they sought to discuss methodically the connection between footnote eleven and the Court's legitimacy concerns. This Note is an effort to assemble, for the first time, the evidence against the conventional narrative, and to explain from an institutionalist perspective why the Court felt it desirable to refer to the studies cited in footnote eleven of its opinion.

The Note is separated into three Parts. Part I summarizes the Brown opinion, focusing on the relationship between the Court's delineation of a historically changing Constitution and its finding of racial segregation's harmful impact. Part II explores the origins of the conventional narrative within the legal academy and presents evidence suggesting, to the contrary, that social science did not inform the Court's verdict. Part III elaborates upon the link between the Court's embrace of social science evidence and the anticipated crisis of institutional legitimacy brought about by the Brown opinion.

I. THE BROWN OPINION: A CRITICAL SUMMARY

Although an exhaustive summary of the Brown opinion is beyond the scope of this Note, it is useful for present purposes to begin with a shared understanding of the Court's stated rationale for striking down school segregation. This Part recounts the major themes of the opinion, focusing on the interplay between the Court's delineation of a historically changing Constitution and its scientific finding of segregation's harmful social and psychological impact on black schoolchildren. The discussion here will help the reader follow the arguments in the remainder of the Note.

In Brown, the Court considered for the first time whether racial segregation in the nation's public schools violated the Equal Protection Clause. The Court had upheld state-enforced racial segregation almost sixty years earlier in Plessy v. Ferguson, (10) on the ground that separating people of different racial backgrounds did not, in and of itself, imply their inequality. (11) The Plessy Court had ascribed grievances with the separate but equal standard to the "colored" race's (mis)understanding of social reality:

   [T]he underlying fallacy of [Homer Plessy's] argument ... consist[s] in the
   assumption that the enforced separation of the two races stamps the colored
   race with a badge of inferiority. If this be so, it is not by reason of
   anything found in the act, but solely because the colored race chooses to
   put that construction upon it. (12)

The Brown Court overturned Plessy, ruling unanimously that "in the field of public education the doctrine of 'separate but equal' has no place." (13) The opinion, drafted by Chief Justice Earl Warren, emphasized three factual themes: the Court's inability to discern the intended historical scope of the Fourteenth Amendment; the development of public education since the adoption of the Amendment; and the harmful social and psychological impact of racial segregation on black schoolchildren.

The Court first considered whether the framers of the Fourteenth Amendment intended the Equal Protection Clause to prohibit racial segregation in the public school context. (14) It acknowledged that the parties in the case had put forward arguments relating to "consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment." (15) The Court concluded, however, that the inscrutable and disparate views of members of Congress concerning the Amendment's scope rendered original intent an ineffective methodology for resolving whether public school segregation was constitutional. "[The parties'] discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive." (16)

The Court then reasoned that, even presuming it could discern the framers' understanding of the Fourteenth Amendment, their understanding still would not help it resolve whether school segregation was constitutional in the middle of the twentieth century. According to the Court, "An additional reason for the inconclusive nature of the Amendment's history, with respect to segregated schools, is the status of public education at [the time the Fourteenth Amendment was enacted]." (17) The Court observed that when the framers drafted the Fourteenth Amendment, public schools had not yet taken hold in the South; education of blacks in the South was almost nonexistent and was outlawed in some states; Congress had largely ignored the Fourteenth Amendment's impact in the North; and even in the North, the conditions of public education were not well-developed. (18) But the status of public education had changed substantially in the period leading up to Brown. The operation of schools had become, in the Court's view, "perhaps the most important function of state and local governments." (19) The Court concluded that, in order to resolve the constitutionality of school segregation, it would have to consider the elevated status of public education in the middle of the twentieth century:

   In approaching this problem, we cannot turn the clock back to 1868 when the
   Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.
   We must consider public education in the light of its full development and
   its present place in American life throughout the Nation. Only in this way
   can it be determined if segregation in public schools deprives these
   plaintiffs of the equal protection of the laws (20)

The implication of the Court's language was that, whatever the framers intended the Fourteenth Amendment to mean, their intent did not have a bearing on the question whether school segregation was constitutional in the middle of the twentieth century--that is, at the time Brown reached the Court. Put another way, the changed status of public education in the intervening historical period rendered unsatisfactory an originalist approach to constitutional interpretation.

The Court was expounding, in effect, the theory of a historically changing Constitution--a "living Constitution"--whose meaning derives from contemporary circumstances and social values. (21) While the historical significance of the Court's articulation of this theory is discussed more fully below, (22) it is important presently to note how the theory of a Constitution whose meaning evolves over time differs profoundly from the theory of a Constitution whose fixed and unchanging meaning is applied to changing circumstances. Under the latter theory, the original understanding of the Constitution--the meaning that the framers of its provisions had in mind--endures over subsequent generations, regardless of the extent of intervening historical change. Under the "living Constitution" theory, by contrast, the meaning of the Constitution changes in accordance with changing historical circumstances. (23) David Strauss, a proponent of what he terms a "common law" interpretation of the Constitution, explains the contrasting theoretical approaches as a debate over the importance of adhering to original intent:

   The [originalist] emphasis on text, or on the original understanding,
   reflects an implicit adherence to the postulate that law must ultimately be
   connected to some authoritative source; either the Framers, or "we the
   people" of some crucial era.... The common law tradition rejects the notion
   that law must be derived from some authoritative source and finds it
   instead in understandings that evolve over time. (24)

Morton Horwitz captures the distinction between the two constitutional theories in similar terms:

   If the Constitution outlines "certain unalienable Rights" with which
   individuals are "endowed by their Creator," then one would expect a picture
   of historically fixed and unchanging constitutional rights. If, however,
   one expects legal principles to evolve over time depending on changing
   circumstances or changing moral and legal ideas, then we should avoid
   speaking of rights as if they are inherent in the nature of things, like
   the law of gravity. (25)

The Brown Court, adopting the "living Constitution" theory, had to take into account the mid-twentieth century "facts of life" concerning public education. (26) Even if the framers of the Equal Protection Clause did not intend to prohibit school segregation, the elevation of public education to "perhaps the most important function of state and local governments" might yield a different, modern interpretation--one under which segregated schools would be deemed constitutionally intolerable. For the same reason, the Court could not fall back on its equal protection analysis in Plessy, which had been decided under different historical circumstances. The Brown Court, in other words, refused to be bound by the "dead hand" of the framers' original understanding. (27)

Having removed the process of constitutional interpretation from the originalist matrix, the Court plainly inquired whether racial segregation violated the equal protection rights of black schoolchildren: "Does segregation of children solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal education opportunities?" (28) To answer this question, the Court announced its scientific finding of racial segregation's harmful impact on black schoolchildren. The Court asserted that separating children "from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." (29) It then elaborated on this critical finding of fact:

   Segregation of white and colored children in public schools has a
   detrimental effect upon the colored children. The impact is greater when it
   has the sanction of the law; for the policy of separating the races is
   usually interpreted as denoting the inferiority of the negro group. A sense
   of inferiority affects the motivation of a child to learn. Segregation with
   the sanction of law, therefore, has a tendency to [retard] the educational
   and mental development of negro children and to deprive them of some of the
   benefits they would receive in a racial[ly] integrated school system. (30)

In the sentence citing footnote eleven, the Brown Court observed that the Plessy Court, which had propounded the separate-but-equal doctrine, did not enjoy the benefit of modern social science. Whereas scientific evidence in the late nineteenth century might have led the Plessy Court to find racial segregation constitutional--to find that separating the races did not give rise to inequality under the law--the evidence in the middle of the twentieth century led the Brown Court to reach the opposite conclusion. According to the opinion: "Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding [of segregation's harmful impact] is amply supported by modern authority." (31) Here, again, the Court's language implied that constitutional meaning might evolve over time; that Plessy, though perhaps correctly decided on the basis of contemporary social science knowledge, did not cast light on the constitutionality of racial segregation in the middle of the twentieth century.

There followed in footnote eleven--perhaps "the most dispute-laden footnote in American constitutional law" (32)--a reference to seven sociological and psychological studies underlying the Court's finding of racial segregation's harmful impact:

   K.B. Clark, Effect of Prejudice and Discrimination on Personality
   Development (Midcentury White House Conference on Children and Youth,
   1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI;
   Deutscher and Chein, The Psychological Effects of Enforced Segregation: A
   Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What
   are the Psychological Effects of Segregation Under Conditions of Equal
   Facilities? 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld,
   Educational Costs, in Discrimination and National Welfare (MacIver, ed.,
   1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And
   see generally Myrdal, An American Dilemma (1944). (33)

In the following paragraph--and thus ostensibly based on its scientific finding of segregation's harmful impact--the Court announced its verdict that racial segregation violated the equal protection rights of black schoolchildren. "[W]e hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment." (34)

Curiously, the Court also stated in the same paragraph that "[s]eparate educational facilities are inherently unequal." (35) In this sentence, the Court appeared to imply that racial segregation was unconstitutional regardless of time and place and, thereby, to set forth the view of a fixed and unchanging Constitution that it had rejected earlier in the opinion. (36) From this perspective, the Brown Court was merely correcting the Plessy Court's flawed interpretation of the Equal Protection Clause. It is important to note, however, that this sentence followed the Court's more extensive, albeit implied, reference to the "living Constitution" theory. Moreover, since the Court was cautious not to antagonize the South, (37) it likely did not wish to imply that racial segregation had always been unconstitutional. (38) This Note presumes, in accordance with the Brown Court's own choice of emphasis and in light of its reluctance to offend the South, that the "living Constitution" theory represented what the Justices intended as their guiding theory of constitutional interpretation. (39)

II. RETHINKING THE CONVENTIONAL NARRATIVE: FOOTNOTE ELEVEN AS EPIPHENOMENON 

As discussed above, the view that the Brown decision rested on social science evidence has attained within the legal academy the status of a conventional narrative. This Part challenges the plausibility of the conventional narrative. It first discusses how, in the years following the Brown decision, the scholarly debates over the propriety of the Court's reliance on the footnote eleven studies largely foreclosed consideration of whether social science actually had an impact on the Court's decision-making process. Many modern legal scholars have inherited the presumption that social science informed the Court's constitutional reasoning. This Part then makes that underlying presumption the focus of extended critical scrutiny.

A. A Brief Historiography of Footnote Eleven

In the years following the Brown decision, members of the legal academy--or at least the members who favored desegregation--split into two camps regarding the Court's use of social science. (40) The first camp of legal scholars endorsed, both implicitly and expressly, the Court's reliance on the footnote eleven studies to abolish school segregation. (41) For some of these scholars, to be sure, sympathy with the desegregation ruling prompted a tacit indifference to the Court's presumed methodology; liberal racial ideology tended to suppress academic criticism. Michael Ariens thus observes that, in the five years after Brown, the majority of legal academics defended the case as "vitally important to American society and also as a legally unexceptional decision." (42) Other scholars in the first camp believed that the Court had finally come to understand the benefits of interdisciplinary collaboration between law and social science. These scholars argued that the salutary result in Brown demonstrated why social science evidence should, as a matter of course, inform the Court's constitutional analysis. Herbert Hill and Jack Greenberg, for example, argued that the Court had properly decided the case on the basis of the footnote eleven studies because "social science may shed light on law to help courts to develop it wisely." (43)

For the first camp of legal scholars, then, the Brown verdict either justified or vindicated the Court's presumptive reliance on social science evidence. Having taken for granted that the footnote eleven studies had guided the Court's decision-making process, these scholars focused their efforts on defending, in varying degrees, its scientific methodology.

Legal scholars in the second camp, by contrast, vigorously opposed the role of social science in the Brown decision. (44) In a seminal article published the year after the Brown decision, Edmond Cahn, professor of jurisprudence at New York University, expressed his support for the verdict, (45) but criticized the Court's reliance on social science for rendering the verdict empirically contingent:

   [S]ince the behavioral sciences are so very young, imprecise, and
   changeful, their findings have an uncertain expectancy of life. Today's
   sanguine asseveration may be cancelled by tomorrow's new revelation--or new
   technical fad.... Today the social psychologists ... are liberal and
   egalitarian in [their] basic approach. Suppose a generation hence, some of
   their successors were to revert to the ethnic mysticism of the very recent
   past; suppose they were to present us with a collection of racist notions
   and label them "science." What then would be the state of our
   constitutional rights? (46)

For Cahn, the indeterminacy of social science evidence diminished the forcefulness of the Court's ruling. He argued, "I would not have the constitutional rights of Negroes--or of other Americans--rest on any such flimsy foundation as some of the scientific demonstrations in these records." (47) A few years later, Charles Black, professor of jurisprudence at Yale, took up Cahn's argument. The purpose and impact of segregation in the South, according to Black, were "matters of common notoriety, matters not so much for judicial notice as for the background knowledge of educated men who live in the world." (48) Social science, from Black's perspective, did not provide a sufficiently enduring basis to support the principle of racial integration. The question whether school segregation was unconstitutional should not have been answered on the basis of social science studies but, rather, "on the ground of history and of common knowledge about the facts of life." (49) Black, like Cahn, thus supported the Court's holding that public school segregation violated the Equal Protection Clause, but faulted the Court for basing its decision on social science evidence. For these legal academics, the Brown verdict was beyond reproach, but the Court's reliance on social science violated traditional, more resilient approaches to constitutional interpretation. (50) Thus, whereas the first camp of scholars believed the Brown verdict demonstrated the benefits of integrating social science knowledge into the judicial process (or, pleased with the verdict, were indifferent to the Court's reliance on social science), this second camp of elite scholars reproached the Court for employing an indeterminate constitutional methodology. For present purposes, it is important to note that both camps of legal scholars, focusing their attention on the propriety of using social science evidence as a source of constitutional interpretation, presumed all the while that social science had in fact guided the Court's decision-making process.

Beyond the legal academy, too, scholars interested in the intersection of the law and social science tended to presume that the footnote eleven studies were relevant to the Court's decision. The role of social scientists, in particular, in fostering the conventional narrative cannot be overstated. (51) Although a handful of social scientists in the post-Brown period found problematic the Court's reliance on social science evidence, (52) most social scientists were flattered by the attention showered on the discipline by the Brown opinion. (53) William Ball, for example, described Brown "an instance of a fortunate union of the law and social science--an instance which is a striking example of the utility of social science in the realization of constitutional rights." (54) For Paul Rosen, too, the Brown decision illustrated the obvious value of bringing social science evidence to bear in the judicial process:

   The Supreme Court's use of modern social science in the [Brown] case can be
   viewed as the grand realization of a fundamental tenet of sociological
   jurisprudence--" that statutes are to be viewed ... not in isolation or in
   vacuo, as pronouncements of abstract principles for the guidance of an
   ideal community, but in the setting and the framework of present-day
   conditions, as revealed by the labors of economists and students of the
   social sciences in our country and abroad." (55)

In summary, Brown was an occasion for interested scholars--especially legal academics and social scientists--to debate the legitimacy of using social science as a source of constitutional interpretation. It was natural for those participating in the debate to presume the footnote eleven studies mattered in the Court's decision-making process. (56) But the overriding scholarly preoccupation with the normative question--should the Court have relied on social science evidence?--tended to obscure the underlying empirical question--did the Court in fact rely on social science evidence?

Many present-day historians and legal scholars have inherited, without questioning, the presumption that the Brown Court studied and internalized the footnote eleven studies to assist its constitutional reasoning. Indeed, the casual acceptance of the view that Brown exemplified the use of social science evidence as a constitutional methodology is a pervasive feature of modern legal scholarship. Legal commentators routinely assert that the Brown Court looked to the footnote eleven studies for guidance in its decision-making; that social science helped the Court, in much the same way as text and history had traditionally done, to determine the constitutionality of public school segregation. (57) There have been, to be sure, a handful of notable skeptics of the conventional narrative. To be sure, a chorus of notable skeptics of the conventional narrative has emerged over the years. Robert Bork, for instance, regards as "obvious" the proposition that social science evidence was immaterial to the Court's decision to strike down school segregation. (58) Similarly, Lawrence Friedman writes that he "would be very surprised ... if [Chief Justice] Warren had read the works cited in footnote 11." (59)

Notwithstanding such skepticism, a great many legal commentators continue to trumpet the conventional narrative, exhibiting a remarkable lack of curiosity about whether the footnote eleven studies actually informed the Court's constitutional analysis. For much of the legal academy, it is safe to say, Brown marks the Court's elevation of social science to a tool of constitutional interpretation. Furthermore, even skeptics of the conventional narrative such as Bork and Friedman have not grappled seriously with the question of why the Brown Court claimed to rely on the footnote eleven studies, when in fact the studies were (as discussed below) irrelevant to its decision. (60) For these reasons, there remains a need to subject footnote eleven to extended critical analysis.

B. Rethinking the Conventional Narrative

One reason for the perseverance of the conventional narrative is that legal scholars assume, logically enough, that the Court's citation to the footnote eleven studies denotes an underlying methodology. (61) But one cannot properly measure the impact of social science evidence on the judicial process simply by counting how frequently courts make citations to the evidence. On the one hand, counting citations might over-represent the impact of social science on the Court's decision-making process because "[c]itations may be mere makeweight or post hoc rationalizations for views originating from other, unexpressed sources." (62) On the other hand, counting citations might under-represent the impact of social science on the decision-making process because judges may be reluctant to cite certain authority even though it influences their reasoning. (63) Whether counting citations is over- or under-representative, the critical point is that it is an unreliable yardstick for measuring the effect of social science on the Court's decision-making process. In order to determine the impact of the footnote eleven studies on the Brown decision, it is thus necessary to look beyond the citation itself. (64) Several circumstantial factors--the brevity of the Court's discussion of the footnote eleven studies, the Court's contemporary race decisions, and the statements of persons involved in drafting the Brown opinion--strongly suggest that the desegregation ruling did not rest on social science evidence.

First, the Court's cursory discussion of the footnote eleven studies in the Brown opinion undermines the plausibility of the conventional narrative. As discussed above, the Court, having noted that racial segregation may cause feelings of inferiority in black schoolchildren, then merely declared that "this finding of [social and psychological harm] is amply supported by modern authority," and followed this assertion with footnote eleven. (65) The Court did not describe the studies in greater detail or, as acknowledged by one of Warren's clerks, even attempt to organize the studies in a coherent manner. (66) Adherents to the conventional narrative might argue that the Court failed to explain fully its decision-making process. An equally plausible interpretation is that the Court simply did not give the studies much evidentiary weight. Especially given Warren's desire that the Brown opinion be "readable by the lay public," (67) the failure to make the studies more widely comprehensible only makes sense if the Court did not impute much significance to them in the first place. If the Court had relied on the footnote eleven studies, it arguably would have provided some further description of them; its cursory treatment of the studies suggests that it did not take the social science evidence into account in reaching its decision.

Nor is the Court's desire for brevity a persuasive explanation for its cursory treatment of the studies. Warren, it is true, wanted a short opinion that newspapers around the country were able to reprint in full. (68) But the Court presumably was not willing to surrender clarity for the sake of conciseness, especially given the significance of its verdict. As Herbert Hill and Jack Greenberg observed in the year following the Court's decision: "When the Supreme Court justices prepared [Brown and companion cases], they undoubtedly kept in the mind the fact many people who cannot understand a typical judicial opinion would need or wish to understand this ruling on one of America's most important moral and practical problems." (69) If the studies truly had an impact on the decision, it is unlikely that the Court would overlook the significance of explaining them to the readers of the opinion. In this regard, comparing footnotes four and eleven in the Brown opinion is particularly instructive. In footnote four, the Court cited four historical sources supporting its proposition that public, and especially "Negro," education was undeveloped at the time the Fourteenth Amendment was adopted. (70) In contrast to the Court's almost perfunctory listing of the footnote eleven studies, it described the footnote four sources at considerable length. The Court explained in footnote four, for example, that:

   [S]chool practices current at the time of the adoption of the Fourteenth
   Amendment are described in Butts and Cremin ... at 269-275 ... Cubberley
   ... at 228-339, 408-431 ... [and] Knight.... The reasons for the somewhat
   slower development in the South (e.g., the rural character of the South and
   the different regional attitudes toward state assistance) are well
   explained in Cubberley, supra, at 408-423. The low status of Negro
   education in all sections of the country, both before and immediately after
   the [Civil] War, is described in Beale ..., 112-132, 175-195. (71)

If brevity were the Court's primary objective, it likely would have treated the footnote four sources in the same undiscerning manner as the footnote eleven studies. In fact, footnote four, which contains a total of five sources (the Court cited one legislative document in addition to the four historical sources), is twice as long as footnote eleven, which contains the seven social and psychological studies. The comparative length of footnotes four and eleven suggests that the Court did not seriously consider the footnote eleven studies. (72)

The Court's failure to take scientific data into account in contemporary race cases also undermines the plausibility of the conventional narrative. In Bolling v. Sharpe, (73) the companion case to Brown, the Court held that public school segregation in the District of Columbia violated the Fifth Amendment guarantee of due process without presenting evidentiary support of segregation's harmful impact. (74) Likewise, in the years following Brown, the Court struck down racial segregation in various contexts through per curiam orders and summary dispositions (75) without considering the empirical facts presumably relevant to the case at hand. In fact, in some of these later cases, the defendants confronted the Court with scientific evidence indicating that desegregation would lead to greater social and psychological harm to black schoolchildren. (76) Some adherents to the conventional narrative have interpreted the conspicuous lack of empirical fact-finding in the post-Brown cases as reflecting the Court's noble, though belated, discovery that social science should not guide constitutional analysis--lest social science evidence and moral principle diverge. (77) Others have charged the Court with practicing lackadaisical science. Scott Brewer, for instance, has criticized the Court for failing to adopt a coherent methodology in the race cases:

   If the Court really wanted the authority of science, was it not obliged, as
   a matter of principle, to allow science to reach modest conclusions,
   tentatively held and ever open to revision...? By resting [Brown] so
   heavily on empirical science, nay, on the least stable kind of empirical
   science, the Court opened itself up to the charge of fiat, of power, rather
   than reason, in shutting down efforts by the polity to revisit the
   scientifically informed fact at issue [in the post-Brown cases].... Truly
   scientific results would seem not only to permit, but also to invite, if
   not to require, fresh reexamination. (78)

In this manner, many legal scholars seeking to explain the Court's reasoning in the post-Brown race cases start with a presumption that social science evidence underlay the Brown decision. They part company over whether the Court should be congratulated for discarding a morally indeterminate methodology or reprimanded for engaging in scientific malpractice. (79)

But scholars who believe the Court decided, for better or worse, to abandon social science after Brown place the proverbial cart before the horse. The Court's handling of social science evidence in Brown and subsequent race cases is fully consistent with the alternative, and more plausible, thesis that it did not rely on social science from the outset. If the Brown Court had actually looked to the footnote eleven studies for guidance, it arguably would have felt the need, for the sake of consistency, to consider analogous evidence in determining the constitutionality of racial segregation in other contexts.

Finally, the statements of individuals involved in drafting the Brown opinion suggest that Brown did not rest on social science evidence. Chief Justice Warren apparently considered the studies so unimportant that he did not recite them from the bench when announcing the Brown result. (80) Moreover, some years after the decision, he expressed surprise that the scientific evidence had caused so much controversy, insisting that footnote eleven "was only a note, after all." (81) In the years following the decision, Richard Flynn, the Warren clerk originally responsible for placing the footnote in the opinion, also intimated that social science evidence was immaterial to the Court's decision. Flynn recalled that he had merely listed "obvious" works supporting the Court's holding and that the footnote "wasn't anything anybody thought about, and nobody raised any question about it at the Court." (82) Earl Pollock, another Warren clerk, stated that if any of the Associate Justices had objected to the insertion of the footnote, "it would most likely have been struck by the Chief Justice." (83) Lastly, it is worth noting that the Justices, in their internal deliberations, talked at great length about different methods of constitutional interpretation, but did not say anything concerning the interpretive value of social science evidence. In fact, the Justices reportedly discussed the footnote on only one occasion--when Justice Tom Clark asked that the initials of Kenneth B. Clark, the sociologist cited in the footnote, be inserted in order to distinguish the two individuals. (84)

In summary, several factors other than the footnote eleven citation itself indicate that social science evidence did not inform the Court's ruling in the manner presumed under the conventional narrative. The scientific evidence in Brown was, so to speak, a mere footnote to history. From this perspective, it appears that the case that has come to signify the apex of social science as a constitutional methodology is, ironically, one in which social science did not inform the Court's constitutional analysis.

III. FOOTNOTE ELEVEN AND THE COURT'S QUEST FOR LEGITIMACY

Exposing the fiction of the conventional narrative gives rise to a perplexing question about judicial motives. If, as the available evidence suggests, social science evidence did not play a meaningful role in the Brown opinion, why did the Court nevertheless cite to the footnote eleven studies in its opinion? The Court could simply have found, after all, that racial segregation had a harmful impact on black schoolchildren without appealing to the footnote eleven studies. Some scholars might argue that the Court could not properly have announced a finding of segregation's effects without presenting corroborating empirical support, (85) but this is neither an implausible nor an unprecedented way for the Court to present its findings of fact. David Faigman notes that, prior to Brown, the Court had regularly made factual assertions to resolve constitutional questions but failed to articulate an empirical basis for those findings. (86) The Court's failure to cite empirical support for its findings of fact is particularly conspicuous in early twentieth-century cases involving the states' power to pass economic and social welfare legislation. (87) Why, then, did the Court claim to rest its finding of segregation's harmful impact on social science evidence, when it did not in fact rely on such evidence, and had not always felt compelled in the past to introduce empirical support for its factual assertions? (88) This Part argues that the Court's decision to enlist social science evidence should be understood in light of its anxiety regarding the anticipated crisis of institutional legitimacy brought about by the Brown.

As a preliminary matter, it is necessary to recognize that the Court historically has drawn on the persuasiveness of its written opinions to safeguard its institutional authority. It has become a virtual truism that the Court, lacking independent executive power to enforce compliance with its decisions, derives its authority from its perceived legitimacy. (89) The Court itself has identified legitimacy as the source of its authority. In Planned Parenthood v. Casey, (90) the controversial 1992 case upholding the constitutional right to abortion, the authors of the Court's joint opinion noted:

   As Americans of each succeeding generation are rightly told, the Court
   cannot buy support for its decisions by spending money and, except to a
   minor degree, it cannot independently coerce obedience to its decrees. The
   Court's power lies, rather, in its legitimacy, a product of substance and
   perception that shows itself in the people's acceptance of the Judiciary as
   fit to determine what the Nation's law means and to declare what it
   demands. (91)

According to the joint opinion, when the Court, faced with a divisive national controversy, overturns a prior decision, "only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance." (92) Conversely, the Court's decision to overturn "a watershed decision" absent a convincing justification "would subvert the Court's legitimacy beyond any serious question." (93)

The Court's primary mechanism for persuading the people that its decisions are legitimate--that it is, in fact, fit to determine what the Nation's law means--is by elaborating, in its written opinions, a decision-making process grounded in what are perceived as neutral legal principles:

   The Court must take care to speak and act in ways that allow people to
   accept its decisions on the terms the Court claims for them, as grounded
   truly in principle, not as compromises with social and political pressures
   having, as such, no beating on the principled choices that the Court is
   obliged to make. Thus, the Court's legitimacy depends on making legally
   principled decisions under circumstances in which their principled
   character is sufficiently plausible to be accepted by the Nation. (94)

The Casey Court's concerns regarding the legitimacy of a high-profile decision with sweeping impact could very well have been expressed by the Brown Court.

In Brown, even more than in Casey, the Court was concerned that its overturning of a "watershed decision" would have significant adverse consequences for its institutional standing. Its historic decision to invalidate the separate but equal doctrine--"the South's Magna Carta" (95)--was bound to generate robust criticism, especially from white Southerners, that the Court had overstepped its authority. (96) Justice Douglas' conference notes from 1952-1954 amply confirm that his colleagues were anxious about the consequences of a landmark desegregation ruling in the South. (97) One of the strongest indicators that they were deeply concerned about the Court's legitimacy was their considerable effort in trying to come up with a unanimous opinion. (98)

The Court anticipated a crisis of legitimacy not only because of the controversial nature of its verdict, but also because of its stated rationale for invalidating public school segregation. In Brown, it is fair to say, the Court's legitimacy depended not only on good results, but good legal reasoning. The Court's standing rested on both its verdict and the craftsmanship of its opinion. (99) But as discussed above, the Brown opinion set forth the theory of a "living Constitution," under which constitutional meaning depends on changing historical circumstances. (100) Whatever the reason for the Justices' deployment of the "living Constitution" theory, (101) it is critical for present purposes to understand how the theory's appearance in the Brown opinion posed a fundamental, though typically overlooked, threat to the Court's institutional legitimacy. (102)

The Brown opinion was not, to be sure, the earliest articulation of the idea of a historically changing constitution. (103) Some legal thinkers in the early nineteenth century objected to the notion of a constitution whose meaning is resistant to changing circumstances. (104) Progressive legal thinkers such as Woodrow Wilson had elaborated the idea of a changing constitution beginning in the late nineteenth century; (105) and various prominent jurists and scholars such as Louis Brandeis, Roscoe Pound, and Benjamin Cardozo had put forward their own distinctive articulations throughout the early part of the twentieth century. (106) Howard Gillman notes, "By the 1920s, the traditional conception of a Constitution whose meaning was fixed and immutable was coming under siege by different versions of the living Constitution." (107) In Home Building & Loan Ass'n v. Blaisdell, (108) a 1934 case concerning whether a state law enacted in the face of the Great Depression violated the Contract Clause, Chief Justice Hughes came close to expressing a "living Constitution" theory of constitutional interpretation:

   It is no answer to say that this public need was not apprehended a century
   ago, or to insist that what the provision of the Constitution meant to the
   vision of that day it must mean to the vision of our time ... When we are
   dealing with the words of the Constitution ... we must realize that they
   have been called into life a being the development of which could not have
   been foreseen completely by the most gifted of its begetters.... The case
   before us must be considered in the light of our whole experience and not
   merely in that of what was said a hundred years ago. (109)

Over the next few years, moreover, a number of legal thinkers endorsed the theory of a historically changing Constitution. (110) For example, Charles Beard, in a 1936 symposium in The Annals of the American Academy of Political and Social Science dedicated to the topic of "The Constitution in the 20th Century," insisted that "the Constitution as practice is a living thing.... It is the living word and deed of living persons, positive where positive, and subject to their interpretation where open to variant readings." (111)

A substantial body of legal commentators had thus broached the idea of a "living Constitution" prior to its appearance in the Brown opinion. Morton Horwitz explains, however, that the idea practically disappeared in 1937 with the New Deal majority's retreat from the Court's activist Lochner-era (112) jurisprudence. (113) In West Coast Hotel v. Parrish, (114) the case formally marking the Court's repudiation of the Lochner decisions, the Court overturned Adkins v. Children's Hospital of D.C., (115) in which the Court had held that minimum wage standards for women violated the Contract Clause. In West Coast Hotel (as in Brown) changing historical circumstances--the shift from a dispersed, agricultural economy in which parties enjoyed relatively equal bargaining strength to a concentrated, industrial economy in which individual laborers could not contract freely with powerful industrial corporations--moved the Court to reverse its prior decision. (116) But the West Coast Hotel decision, in sharp contrast to Brown, was not premised on the idea that the Constitution needed to be reinterpreted in the face of intervening historical change. The New Deal majority instead explained the West Coast Hotel verdict as a restoration of pre-Lochner neutral constitutional principles. The Lochner Court, according to the West Coast Hotel opinion, had simply gotten the law wrong in the first place: "[W]e think that ... the decision in the Adkins case was a departure from true application of the principles governing the regulation by the State of the relation of employer and employed." (117) As Horwitz has pointed out, the West Coast Hotel majority found "too tempting" the opportunity to justify its verdict as a return to what had come before--with its evocations of stability and timelessness--as opposed to a revolutionary event needing justification. (118) In this way, "intellectual opportunism immediately suppressed the issue of how to think about a changing Constitution after the New Deal revolution." (119)

The New Deal majority thus repudiated the theory of a historically changing Constitution, which progressive jurists had expounded during the half-century prior to the West Coast Hotel case, in favor of the originalist theory of a fixed and unchanging Constitution. As a result, originalism remained, at the time Brown was decided, the Court's favored (in word if not in fact) constitutional theory. (120) Jacobus tenBroek, a leading scholar of the Fourteenth Amendment in the period between West Coast Hotel and Brown, (121) could thus credibly assert at the time:

   Whenever the United States Supreme Court has felt itself called upon to
   announce a theory for its conduct in the matter of constitutional
   interpretation, it has insisted, with almost uninterrupted regularity, that
   the end and object of constitutional construction is the discovery of the
   intention of those persons who formulated the instrument or of the people
   who adopted it. (122)

An originalist reading of the Constitution was thus, in the period leading up to Brown, the touchstone of an authoritative Court opinion. (123) In the face of the ascendancy of the originalist approach, the Court's elaboration in the Brown opinion of the "living Constitution" theory was a historic event as a matter of constitutional jurisprudence. The Brown opinion revived the idea, previously suppressed in West Coast Hotel, that different generations of Americans could attach different meanings to the same constitutional language. The Court's reasoning, in particular, that the changing status of public education rendered irrelevant prior interpretations of the Equal Protection Clause ("[w]e cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written") (124) was an express rejection of the then-favored theory of a fixed Constitution. (125) From this historical perspective, the appearance in the Brown opinion of the "living Constitution" theory was, notes one scholar, nothing less than a "revolution" in American constitutional jurisprudence. (126)

The Court's adoption of the "living Constitution" theory placed the Court's legitimacy at risk not only because it represented, at the time, a competing theory of constitutional interpretation, but also because the very idea of a historically changing constitution runs contrary to the venerable notion of a constitution as embodying fundamental law. Horwitz describes the "special" crisis of legitimacy intrinsic to the notion of a constitution whose meaning evolves over time:

   Whatever the intellectual origins of the American conception of
   fundamentality--whether derived from natural law, popular sovereignty, or a
   combination of the two--that conception ultimately has rested on the notion
   that fundamental law is timeless and unchanging, a view that cannot be
   reconciled either with twentieth-century constitutional practice or with
   modern theories of law, language, and consciousness. Thus arises the
   question that underlies the contemporary legitimacy crisis in
   constitutional law: how can the idea of fundamentality be rescued from its
   historic association with fundamentalism? How, in other words, is it
   possible legitimately to incorporate changing ideals or values, or dynamic
   meanings or understandings of the state of the world, into constitutional
   doctrine that aspires to fundamentality? (127)

The Court has itself acknowledged the importance of appearing to remain faithful to the framers' command in its constitutional decisions. In Bowers v. Hardwick, (128) the 1986 case upholding a criminal ban on homosexual sodomy, the majority noted the consequences of forsaking original intent as a guidepost to constitutional decision-making: "The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution." (129) The majority's admonition in Bowers is surely as (if not more) befitting of the New Deal Court. At a historical moment in time when fidelity to original intent remained the hallmark of sound constitutional reasoning, the Warren Court's "living Constitution" jurisprudence imperiled its own legitimacy.

Thus, the Brown opinion posed a severe threat to the Court's institutional standing, not only because the desegregation verdict was itself divisive, but also, but also because the accompanying constitutional reasoning was highly controversial. The decision to overturn Plessy would, on its own, have provoked substantial resistance in the South. But at a more fundamental level, the Court's articulation of the "living Constitution" theory--the idea, in effect, that "even truth changes over time." (130)--was a radical, and inherently destabilizing, way of thinking about constitutional meaning.

Adopting an institutional perspective of the Court makes it possible to reconcile the language of footnote eleven with its evident indifference to the social science evidence at hand. The immediate claim is that the Brown Court, anticipating that its opinion would provoke a crisis of institutional legitimacy, sought refuge in the authority of social science. The footnote eleven studies were useful to the Court not because they informed its decision-making process but, rather, because they provided a veneer of scientific certainty to the Court's opinion. The particular seductiveness of scientific evidence was that it embodied, at least in principle, many of the attributes as the supposed "neutral" or original constitutional principles on which the Court had, prior to Brown, claimed to rely for its decision-making: objectivity, fundamentality, rationality, inevitability. (131) How tempting it must have been for the Brown Court, anticipating resistance to its verdict in the South and fissures in the legal academy over its reasoning, to summon the powerful legitimating authority of social science evidence!

The inference that the Brown Court invoked the footnote eleven studies to safeguard its legitimacy is especially compelling if one recognizes the elevated status of scientific knowledge, and of social science in particular, (132) in the 1940s and 1950s. Although a historical study of the growth of social science is well beyond the scope of this Note, it is important to recognize its cultural ascendancy around the time that Brown was decided. Whereas social science at the turn of the century was "still in an embryonic stage of development," (133)--one scholar notes, for instance, that sociology was "more of a yearning than a substantial body of knowledge, a fixed point of view, or a rigorous method of research" (134)--it had, by the middle of the twentieth century, become a widely accepted source of authority on the nature of man and society. (135) The social sciences had not, to be sure, attained the cultural status of the natural sciences. (136) Nevertheless, Bernard Barber, writing in 1952, considered it "readily apparent" that "social science has reached a much greater stage of advancement in [American] society than it ever has anywhere else." (137)

Gordon Allport's The Nature of Prejudice, published in 1954--the year of the Brown decision--expressed the widespread faith that social science could help humankind to alleviate longstanding social problems:

   [I]n recent years men in large numbers have become convinced that
   scientific intelligence may help us solve the conflict [between human
   beings].... Men are saying, "Let us make an objective study of conflict in
   culture and industry, between people of different color and race; let us
   seek out the roots of prejudice and find concrete means for implementing
   men's affiliative values." Since the end of the Second World War
   universities in many lands have given new prominence to this approach under
   various academic names: social science, human development, social
   psychology, human relations, social relations. Though not yet securely
   christened, the infant science is thriving. It has found considerable
   welcome not only in universities, but likewise in public schools, in
   churches, in progressive industries and government agencies, as well as in
   international bodies. (138)

The allure of social science was especially powerful in the area of race relations. (139) Allport specifically argued, in fact, that:

   The question now arises whether modern social science can be of practical
   assistance to courts and to legislatures, so that erroneous assumptions
   concerning the psychological and social consequences of a proposed action
   might be guarded against. In the nineteenth century this question would
   have been premature; in the twentieth century perhaps it is not ... We are
   now in a fair position to predict the consequences of segregation and of
   its abandonment. (140)

Thus, Allport and others believed, courts should look to social science to resolve the segregation controversy. Perhaps most prominently, Gunnar Myrdal's An American Dilemma: The Negro Problem and Modern Democracy (1944)--incidentally one of the sources listed in footnote eleven--reflected the view that social science could help to resolve the race problem in the United States. According to Myrdal: "[W]e have in social science a greater trust in the improvability of man and society than we have ever had since the Enlightenment." (141)

The legal academy was hardly oblivious to the contemporary faith in the ability of social science to resolve social problems. Numerous commentators have written about the law's increasing fondness for sociological insights as legal realism began to replace legal formalism in the early part of the twentieth century. (142) Morton Horwitz notes that, in the period leading up to Brown, courts displayed increasing confidence in the professional claims of social scientists and a concomitant aversion to proceduralist thought. (143) In law schools, moreover, there was in the period leading up to Brown a great deal of enthusiasm for integrating the disciplines of law and social science. (144) To take one example, in 1946, the Yale Law School's Curriculum Committee's expressly recognized the importance of incorporating social science into legal education:

   We take it to be self-evident that law is one of the social studies, and
   that the study of law will be most fruitful and critical when the skills
   and perspectives of history, economics, statistics, psychology, political
   science, sociology and psychiatry are fully and effectively used in the
   work for law schools. (145)

A few years later, the Yale Law School faculty established a Law and Behavioral Science Program (thus following the recommendations of its Curriculum Committee) and other law schools--most notably, at the University of Pennsylvania, Rutgers University, and the University of Chicago--also commenced their own cross-disciplinary research efforts. (146) The establishment of such programs conveys the remarkable enthusiasm for social science in the legal academy in the middle of the twentieth century.

Given the omnipresent faith in the social sciences in the middle of the twentieth century, it makes sense that the Brown Court would seek legitimacy in the footnote eleven studies. One should not, however, ascribe too much intentionality to the Court's use of social science evidence. Dean Hashimoto has suggested that the Brown Court cited to the footnote eleven studies to deflect away from itself the anticipated widespread opposition to Brown in the South. (147) Hashimoto's hypothesis, though correct to recognize the subordinate role of footnote eleven in the Brown opinion, overlooks the fact that social science was a highly controversial methodology for constitutional decision-making in the middle of the twentieth century (it is one thing to say that social science had great authoritative force at the time Brown was decided, but quite another to argue that it was widely regarded as having a proper place in constitutional law opinions). Indeed, as discussed above, a number of critics attacked the Brown Court for relying inappropriately on social science as a source of constitutional interpretation. (148) It is hard to believe that the Justices would have failed to anticipate these criticisms of the opinion. The immediate claim is thus more modest: that the rise of social science as an accepted discipline of knowledge was a background condition that formed part of the Warren Court's perception of the world. (149) The members of the Brown Court, from this perspective, were themselves seduced by the exalted claims of social science in the middle of the twentieth century. (150) Footnote eleven was a consequence of ordinary human intuition, not grand strategy.

In summary, when the Court decided Brown, the epistemological standing of social science was at its historical zenith. (151) The legal academy, moreover, shared much of the broader societal faith in the emergent discipline of knowledge. Against this historical background, the Brown Court's invocation of social science evidence can most plausibly be understood as an effort, though an accidental one, to lend authoritative force to an opinion that threatened to undermine its institutional standing.

CONCLUSION

This Note disputes the conventional narrative that social science evidence guided the Brown Court's decision to strike down racial segregation. It discusses how many modern scholars have inherited this narrative from legal thinkers who, in the period immediately following the Brown decision, shaped the dominant discursive practices within the academy. The Note proposes, to the contrary, that footnote eleven was a by-product of the Court's legitimacy concerns; that the Court, anxious about its institutional standing, impulsively embraced social science to lend authority to its highly controversial verdict based on the revolutionary, and inherently destabilizing, theory of a living Constitution. In much the same way that the West Coast Hotel Court sought to justify its reversal of the Lochner precedents by appealing to the conservative ideal of original constitutional principles, the Brown Court sought to justify its overturning of Plessy, and its abandonment of constitutional originalism, by appealing to the footnote eleven studies. Whereas the New Deal majority employed the commanding rhetoric of "restoration," the Brown Court embraced the authoritative force of social science evidence. Brown, on this view, represents not the elevation of social science to a method of constitutional interpretation, but rather the cultural ascendancy of social science in the middle of the twentieth century.

(1.) 347 U.S. 483 (1954).

(2.) Scott Brewer, Scientific Expert Testimony and Intellectual Due Process, 107 YALE L.J. 1535, 1553 (1998).

(3.) Stephen B. Presser, Book Review, 14 CONST. COMMENT. 229, 229-30 (1997) (reviewing SCOTT DOUGLAS GERBER, TO SECURE THESE RIGHTS: THE DECLARATION OF INDEPENDENCE AND CONSTITUTIONAL INTERPRETATION (1995)).

(4.) Stephen Breyer, What Researchers Need to Know about Law and the Courts, Remarks from Panel Discussion at Washington, D.C. Conference on the Use/Nonuse/Misuse of Applied Social Science Research in the Courts (Oct. 1978), in THE USE/NONUSE/MISUSE OF APPLIED SOCIAL RESEARCH IN THE COURTS (Michael J. Saks & Charles H. Baron eds., 1980), at 76.

(5.) This phrase is adapted from Justice Frankfurter's comment to Thurgood Marshall during the 1952 phase of Brown's oral arguments, where Frankfurter remarked that "[h]ow to inform the judicial mind, as you know, is one of the most complicated problems." Transcript, 1952 Oral Argument in Brown, reprinted in ARGUMENT: THE ORAL ARGUMENT BEFORE THE SUPREME COURT IN BROWN V. BOARD OF EDUCATION OF TOPEKA, 1952-55, at 63 (Leon Friedman ed., 1969) (statement of Justice Felix Frankfurter).

(6.) For helpful discussions of the NAACP's decision to utilize social science data in Brown, see HERBERT HILL & JACK GREENBERG, CITIZEN'S GUIDE TO DESEGREGATION: A STUDY OF SOCIAL AND LEGAL CHANGE IN AMERICAN LIFE (1955), especially chapters 7 & 8 (describing pre-1954 stages of the Brown litigation); RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY 555-557 (Alfred A. Knopf ed. 1976) (describing fissures in NAACP over use of social science data); MARK V. TUSHNET, THE NAACP'S LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) (describing early stages of litigation that led to the 1954 decision in Brown); JUAN WILLIAMS, THURGOOD MARSHALL: AMERICAN REVOLUTIONARY 197-205 (1998) (describing NAACP's decision to submit psychologist Kenneth Clark's "doll study" as evidence of segregation's harmful effect on black children); Louis Menand, Civil Actions: Brown v. Board of Education and the Limits of Law, NEW YORKER, Feb. 12, 2001, at 91 (reviewing JAMES T. PATTERSON, BROWN V. BOARD OF EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TROUBLED LEGACY (2001) (describing same)).

(7.) See infra Part II.

(8.) See infra Part II.

(9.) See infra Part III.

(10.) 163 U.S. 537 (1896).

(11.) The Court ruled on several occasions after Plessy that state officials had failed to satisfy the equal protection standard in particular circumstances, but it did not in these cases question the constitutionality of Plessy's separate-but-equal doctrine. See, e.g., McLaurin v. Okla. State Regents for Higher Educ., 339 U.S. 637 (1950) (holding that black graduate student attending state university was denied equal protection under Plessy standard by being forced to study at separate desk and eat at separate table from white students); Sweatt v. Painter, 339 U.S. 629 (1950) (holding that establishment of separate black law school would lack intangible elements such as faculty reputation, alumni prestige, tradition, and history, and thus did not satisfy the Plessy equal protection standard); Sipuel v. Bd. of Regents of Univ. of Okla., 332 U.S. 631 (1948) (holding that petitioner had constitutional right to attend law school and state university could not deny admission to petitioner solely on the basis of race); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) (holding that state's offer to pay petitioner's tuition at out-of-state law school did not satisfy Plessy equal protection standard).

(12.) Plessy, 163 U.S. at 551.

(13.) Brown, 347 U.S. at 495.

(14.) Justice Felix Frankfurter had successfully postponed the Court's treatment of Brown in the 1952 Term, when the Court would have been sharply divided had it rendered a decision, by requesting that the parties to the case reargue the historical scope of the Fourteenth Amendment. See MORTON J. HORWITZ, THE WARREN COURT AND THE PURSUIT OF JUSTICE 23-4 (1998) [hereinafter, HORWITZ, WARREN COURT]; KLUGER, supra note 6, at 601-02.

(15.) Brown, 347 U.S. at 489.

(16.) Legal scholars have debated whether the Brown holding can in fact be reconciled with the original understanding of the Fourteenth Amendment. Some legal historians have argued that it can. See Michael W. McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947 (1995) (arguing that framers of the Equal Protection Clause favored prohibiting school segregation). For legal scholarship reaching the opposite conclusion regarding the intent of the Reconstruction Congress in drafting the Equal Protection clause, see RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 13 (1996) (arguing that original intent favored preserving school segregation); LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 41 (2000) ("Based on [the framers'] limited experience and the fact that they had not given the issues much thought, they believed that segregation was not inconsistent with equality."); Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 VA. L. REV. 1881 (1995) (arguing that framers did not believe school segregation violated Equal Protection Clause); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781, 800 (1983) ("Suppose that we [turned] back the clock so that we could talk to the framers of the fourteenth amendment. If we asked them whether the amendment outlawed segregation in public schools, they would answer `No.'"). It is important to note that both sides in the debate might be right--or wrong. The answer to whether an originalist reading of the Fourteenth Amendment supports school segregation turns, in large part, on the level of generality at which one describes the framers' intent. At a specific level, the framers most probably did not believe school segregation violated equal protection of the laws. But, at a higher level of generality, the framers did intend to forbid race discrimination with respect to civil rights--leaving open the possibility that one day, in light of changed circumstances, separate but equal might be deemed an equal protection violation. I am indebted to Michael Klarman for explaining this point.

Setting aside the question of whether the originalist understanding of the Equal Protection Clause worked in favor or against school segregation, the fact that the Brown Court believed it could not strike down school segregation on the basis of the framers' intent--the relevant fact for present purposes--is uncontroversial. Alexander Bickel, clerk to Justice Frankfurter, in fact prepared a memorandum (later published as an article) concluding that the framers of the equal protection clause did not intend to abolish school segregation. Bickel noted that Fourteenth Amendment's legislative history "rather clearly" indicated that the Amendment "was not expected in 1866 to apply to segregation." Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1, 64 (1955).

(17.) Brown, 347 U.S. at 489.

(18.) Id. at 489-90.

(19.) Id. at 493.

(20.) Id. at 492-93 (emphasis added).

(21.) For explanations of the "living Constitution" theory, see HORWITZ, WARREN COURT, supra note 14, at 26-29, 85-88; Howard Gillman, The Collapse of Constitutional Originalism and the Rise of the Notion of the "Living Constitution" in the Course of American State-Building, 11 STUD. IN AM. POL. DEV. 191 (1997) [hereinafter, Gillman, Originalism]; Morton J. Horwitz, The Warren Court and the Pursuit of Justice, 50 WASH. & LEE L. REV. 5, 5-8 (1993) [hereinafter, Horwitz, Warren Court]; Morton J. Horwitz, The Supreme Court, 1992 Term--Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30 (1993) [hereinafter, Horwitz, The Constitution of Change]; David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996).

(22.) See infra Part III.

(23.) It is worth noting at this juncture that the opinion's language seems to foreclose an alternative "translation"-type approach to evaluating the constitutionality of school segregation. Under a "translationist" perspective, one would discern the framers' understanding, and then translate that understanding in accordance with changed circumstances. See Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993). Thus, in Brown, a "translationist" Court would have asked what the framers of the Fourteenth Amendment thought about public school segregation in light of mid-twentieth century circumstances. But recall that the Justices claimed an inability to ascertain the framers' original intent and thus resolved that [we cannot turn the clock back to 1868 when the [Fourteenth] Amendment was adopted." Brown, 347 U.S. at 492. The inability to ascertain original intent ipso facto makes impossible a translation of that intent.

(24.) Strauss, supra note 21, at 879; see also Gillman, Originalism, supra note 21, at 192 (comparing originalist and non-originalist theories of constitutional interpretation).

(25.) HORWITZ, WARREN COURT, supra note 14, at 28-29.

(26.) Charles Black was one contemporary legal thinker who took note of the Brown Court's delineation of a historically changing Constitution:

   [In Brown, o]ur question is whether discrimination inheres in that
   segregation which is imposed by law in the twentieth century in certain
   specific states in the American Union. And that question has meaning and
   can find an answer only on the ground of history and of common knowledge
   about the facts of life in the times and places aforesaid.

Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 427-28 (1960) (emphasis supplied).

(27.) For a general discussion of the "dead hand problem" of originalist theories of constitutional interpretation, see Klarman, supra note 16, at 1915-1916 (1995) (noting that an originalist attempt to "justif[y] intergenerational binding is especially difficult when the issue to be resolved implicates attitudes and values that have shifted dramatically over time."). See also HORWITZ, WARREN COURT, supra note 14, at 87 (arguing that a strictly originalist approach is inadequate for adjudicating twentieth century constitutional issues and that the "Constitution endures because it is a vehicle for the most central values of American society"); Gillman, Originalism, supra note 21, at 192 ("Originalism ... runs the risk that our institutional arrangements and conceptions of justice will be inappropriately tied to the antiquated experiences and prejudices of generations long gone...."); Paul Horwitz, The Past, Tense: The History of Crisis--and the Crisis of History--in Constitutional Theory, 61 ALB. L. REV. 459, 483 (1997) (reviewing LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM (1996)) ("As long as fidelity to a past understanding of the Constitution is the bellwether of an interpretive method, however sophisticated that method may be, the same troubling questions about the legitimacy and authority of staying obedient to a dead generation remain.").

(28.) Brown, 347 U.S. at 493.

(29.) Id. at 494.

(30.) Id. at 494 (citing findings of the lower court in Brown v. Bd. of Educ., 98 F. Supp. 797 (D. Kan. 1951)) (alterations in original).

(31.) Id. (emphasis added).

(32.) Paul L. Rosen, History and State of the Art of Applied Social Research in the Courts, Remarks from Panel Discussion at Washington, D.C., Conference on the Use/Nonuse/Misuse of Applied Social Science Research in the Courts (Oct. 1978), in THE USE/NONUSE/MISUSE OF APPLIED SOCIAL RESEARCH IN THE COURTS 9 (Michael J. Saks & Charles H. Baron eds. 1980) [hereinafter, Rosen, Panel Remarks].

(33.) Brown, 347 U.S. at 494-95, n. 11. The Kenneth Clark doll study suggested that as a result of racial segregation and isolation, black children considered themselves less worthy than white children; the Witmer and Kotinsky study emphasized environmental, as opposed to genetic, factors as the primary determinants of mental health; the Deutscher and Chein study reported that 90% of social scientists polled believed that racial segregation had harmful psychological effects on the segregated group; the Chein study posited the harmful effects of segregation; the Frazier study concluded that the racial segregation had deleterious social and economic effects; and the Myrdal study--the "most comprehensive" of the sources cited in footnote eleven--explored the gap between the concept of democracy and the unequal status of the black population. PAUL L. ROSEN, THE SUPREME COURT AND SOCIAL SCIENCE 182-87 (1972). For abridged versions of the Clark and Deutscher & Chein studies, see JOHN MONAHAN & LAURENS WALKER, SOCIAL SCIENCE IN LAW: CASES AND MATERIALS 181-85 (4th ed. 1998).

(34.) Brown, 347 U.S. at 495.

(35.) Id. at 495 (emphasis added).

(36.) See Horwitz, The Constitution of Change, supra note 21, at 82-90 (discussing the competing constitutional theories featured in the Brown opinion).

(37.) See infra Part III.

(38.) See HORWITZ, WARREN COURT, supra note 14, at 26 ("To say that racial segregation had always been unconstitutional--that Plessy was wrong even when it was decided in 1896--meant that the legitimacy of the entire Southern way of life was open to historical challenge.").

(39.) Justice Reed expressly acknowledged that the opinion set forth the idea of an historically changing Constitution. In conference, he "recognize[d] that this is a dynamic Constitution and what was correct in Plessy might not be correct now." Horwitz, The Constitution of Change, supra note 21, at 90 n.276 (quoting Justice Reed) (internal citations omitted).

(40.) Segregationist lawyers disappointed with the verdict were fond of criticizing the Court's apparent reliance on social science. One widely-read book, which assumed the form of a legal brief for the White South, rebuked the Court for abandoning traditional sources of constitutional interpretation in favor of social science:

   In one stroke, the Warren court violated those precepts of judicial
   restraint and constitutional interpretation which it most frequently has
   insisted on in the past ... Abandoning law, the court wedded sociology;
   discarding eighty years of unbroken precedent, members of the court
   substituted their own notions of psychological and moral fitness for the
   plain and palpable meaning of the Fourteenth Amendment.

JAMES JACKSON KILPATRICK, THE SOUTHERN CASE FOR SCHOOL SEGREGATION 105 (1962); see also CHARLES J. BLOCH, STATES' RIGHTS, THE LAW OF THE LAND 249-51 (1958) (arguing Brown court imposed federal tyranny on the South); WILLIAM D. WORKMAN, THE CASE FOR THE SOUTH 197 (1960) (denouncing Warren Court Justices as "politically appointed" and NAACP as propagandists); Herman E. Talmadge, School Systems, Segregation and the Supreme Court, 6 MERCER L. REV. 189, 190 (1955) (decrying the Warren Court as "totalitarian"). The segregationists' tactic of attacking the Court for elevating social science to a constitutional methodology has been widely documented. See POWE, supra note 16, at 48 (noting that the use of social science "left the Court vulnerable to the southern accusation of abandoning law"). However, after Brown, segregationists themselves were not above making arguments that relied upon social science. See I.A. NEWBY, CHALLENGE TO THE COURT: SOCIAL SCIENTISTS AND THE DEFENSE OF SEGREGATION, 1954-1966 (rev. ed. 1969) (describing use of scientific racism by Brown opponents); ROSEN, supra note 33, at 176-77 (decrying use of social science evidence by Strom Thurmond and other political critics of Brown).

(41.) See Brad Snyder, How the Conservatives Canonized Brown v. Board of Education, 52 RUTGERS L. REV. 383, 393 (2000) (noting that legal scholars "initially" defended the Court's reasoning until Hand and Wechsler's critiques appeared).

(42.) Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620, 670 (1994). The Harvard Law Review Forewords in the three years following the Brown decision illustrate how many legal scholars supported the Court's rationale in light of its favorable holding. In 1954, Albert Sacks argued that the Brown opinion "fully justified the long period of gestation.... [and] illustrat[ed] the function of the judicial process at its best." Albert M. Sacks, The Supreme Court, 1953 Term--Foreword, 68 HARV. L. REV. 96, 96 (1954). In 1955, Robert Braucher proffered his opinion that "even as a matter of hindsight it is hard to suggest how the Court could have decided [Brown] better except perhaps by deciding sooner." Robert Braucher, The Supreme Court, 1954 Term--Foreword, 69 HARV. L. REV. 120, 123 (1955). And in 1956, Charles Fairman declared that the Brown Court had "acted with courage" and that the decision "merits our confidence and support." Charles Fairman, The Supreme Court, 1955 Term--Foreword: The Attack on the Segregation Cases, 70 HARV. L. REV. 83, 83 (1956).

Among integrationists more generally, the Court endured relatively little criticism for its assumed reliance on social science evidence. To be sure, some commentators sympathetic to the verdict scolded the Court for elevating social science to a constitutional methodology. See James Reston, A Sociological Decision: Court Founded Its Segregation Ruling on Hearts and Minds Rather than Laws, N.Y. TIMES, May 18, 1954, at 14 (criticizing the Court for relying more on "social scientists than on legal precedents ... [such that] the Court's opinion read more like an expert paper on sociology than a Supreme Court decision"). However, the vast majority of integrationists, having obtained a favorable verdict, had little motive to quibble about the Court's methodology.

(43.) HILL & GREENBERG, supra note 6, at 142.

(44.) Two notable scholars also attacked the Court's verdict on fundamental, jurisprudential grounds. In the 1958 Holmes Lectures at Harvard Law School, Judge Learned Hand argued that decisions such as Brown were inconsistent with his prescribed belief in judicial restraint. For Judge Hand, vague constitutional provisions such as "equal protection of the laws" were essentially unenforceable by the courts. The Brown Court, in overturning a legislative judgment on the basis of "its own reappraisal of the relative values at stake," had assumed "the role of a third legislative chamber." LEARNED HAND, THE BILL OF RIGHTS 54-55 (1958). For historical accounts of Judge Hand's Holmes Lectures, see GERALD GUNTHER, LEARNED HAND: THE MAN AND THE JUDGE 652-72 (1994) (arguing that the "extreme" position Hand expressed in 1958 was uncharacteristic and aberrational); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY, 258-65 (1992) [hereinafter, HORWITZ, TRANSFORMATION 1870-1960] (noting that adopting Hand's "extreme" judicial restraint could lead to majority tyranny). In the 1959 Holmes Lectures, Herbert Wechsler, though rejecting Hand's position on judicial review, faulted the Brown Court for second-guessing state legislative motives and basing its decision on results rather than formalistic--or what Wechsler called "neutral"--legal principles. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 33-34 (1959); see also HORWITZ, TRANSFORMATION 1870-1960, supra, at 265-68 (describing Wechsler's "neutral principles school" of postwar constitutional thought); Lawrence M. Friedman, Brown in Context, in RACE, LAW, AND CULTURE: REFLECTIONS ON BROWN r. BOARD OF EDUCATION 49, 50 (Austin Sarat ed., 1997) (critiquing Wechsler's argument as "hand-wringing" and "technical").

(45.) Edmond Cahn, Jurisprudence, 30 N.Y.U.L. REV. 150, 150 (1955) (arguing that the Brown decision "added to the dignity and stature of every American.").

(46.) Id. at 167. Notably, Cahn speculated at one point about the prospect that the Court did not rely on the footnote eleven studies. He noted that the scientific evidence "seemed persuasive because it happened to coincide with facts of common knowledge." Id. at 166. However, Cahn's extended criticism of the contingency of social science evidence appears to suggest that he believed social science had an impact on the Court's reasoning. At any rate, to Cahn's contemporary audience, his article was recognized for his argument about the contingency of a scientific jurisprudence, rather than his passing speculation that the Court might not have relied on the footnote eleven studies.

(47.) Id. at 157-58. Cahn's fear materialized when a Georgia district court judge found that the best available evidence showed racial segregation did not cause psychological harm, and thus upheld the practice of school segregation. Stell v. Savannah-Chatham County Bd. of Educ., 220 F. Supp. 667 (S.D. Ga. 1963), rev'd, 333 F.2d 55 (5th Cir.), cert. denied sub nom. Roberts v. Stell, 379 U.S. 933 (1964). In Stell, the district judge refused to follow Brown on the ground that stare decisis did not bind non-parties--here, the parties in the Georgia case--to Brown's empirical fact-findings. See Brewer, supra note 2, at 1561.

(48.) Black, supra note 26, at 426.

(49.) Id. at 427.

(50.) In a similar vein, some legal scholars expressed concern that lawyers could try to deceive a court by clothing their arguments in the garment of scientific fact. See Will Maslow, How Social Scientists Can Shape Legal Processes, 5 VILL. L. REV. 241, 245 (1959-60) ("As I see it, the danger lies ... in a social scientist attempting to palm off on a court as solid conclusions opinions that are not based upon verifiable data.").

(51.) Cf. Walter Berns, Law and Behavioral Science, 28 L. & CONTEMP. PROBS. 185, 202 (1963) ("There is no doubt that the school segregation cases, and the role played ... by social scientists in those cases, stimulated a greater interest in the law among social scientists than any other case; and for this reason ... it provides the most appropriate context in which to discuss the contribution that behavioral or social science can make in the law.").

(52.) See, e.g., Monroe Berger, Desegregation, Law and Social Science, 23 COMMENT. 471, 476 (1957) (arguing that "we may reach a point where we shall be entitled to equality under the law only when we can show that inequality has been or would be harmful").

(53.) See Friedman, supra note 44, at 53 ("[S]ocial scientists themselves, being only human, were eager to claim a lot of credit for the results of Brown.").

(54.) William B. Ball, Lawyers and Social Scientists--Guiding the Guides, 5 VILL. L. REV. 215, 220 (1959-60).

(55.) ROSEN, supra note 33, at 197 (quoting BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 81 (Yale University Press 1961) (1921)). Rosen elsewhere described the Court's presumptive reliance on social science as "epoch-making." Rosen, Panel Remarks, supra note 30, at 9 n.3.

(56.) See Wallace D. Loh, In Quest of Brown's Promise: Social Research and Social Values in School Desegregation, 58 WASH. L. REV. 129, 134 (1982) (reviewing ELEANOR WOLF, TRIAL AND ERROR: THE DETROIT SCHOOL DESEGREGATION CASE (1981)) (noting that footnote eleven "set the stage for subsequent assessments of the possibilities and limits of social research in constitutional adjudication").

(57.) See, e.g., THOMAS SOWELL, CIVIL RIGHTS: RHETORIC OR REALITY? 71 (1984) (arguing that Brown was based primarily on "psychological doctrine, without foundation in logic or law"); John M. Conley, "The First Principle of Real Reform": The Role of Science in Constitutional Jurisprudence, 65 N.C.L. REV. 935, 940 (1987) (noting "the Court's salutary appreciation of social science data in [Brown]"); Ronald Dworkin, Social Sciences and Constitutional Rights--The Consequences of Uncertainty, 6 J.L. & EDUC. 3, 5 (1977) ("We don't need evidence for the proposition that segregation is an insult to the Black community--we know it; we know it in the way we know that a cold causes snuffles." (paraphrasing Cahn, supra note 44)) (emphasis in original); Philip Elman, The Solicitor General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946-1960: An Oral History, 100 HARV. L. REV. 817, 838 (1987) (arguing that the Brown Court should not have relied upon Kenneth Clark and other social scientists who "trivialized the basic truth" and that "the Brown plaintiffs should have had the courage and good sense to stand up there and say, 'We do not need scientific proof.'"); Ellie Margolis, Beyond Brandeis: Exploring the Uses of Non-Legal Materials in Appellate Briefs, 34 U.S.F.L. REV. 197, 198 (2000) (noting that "the [Brown] Court relied on empirical studies to support its finding [of segregation's harmful impact]"); Michael Rustad & Thomas Koenig, The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 N.C.L. REV. 91, 110 (1993) ("The Warren Court was the first to use social science data extensively. Brown v. Board of Education of Topeka is the best known example of the Warren Court's use of empirical research to evaluate whether constitutional principles had been violated."); J. Alexander Tanford, The Limits of a Scientific Jurisprudence: The Supreme Court and Psychology, 66 IND. L.J. 137, 137 (1990) (noting that "commentators offer familiar examples, such as footnote eleven ... as evidence that social science has already begun to find a place in the Supreme Court's jurisprudence."); Laurens Walker & John Monahan, Social Frameworks: A New Use of Social Science in Law, 73 VA. L. REV. 559, 562, n.8 (1987) (characterizing Brown as an instance where the Court "plainly used" social science research as a "legislative fact"). Interestingly, even the Bluebook uses the phrase "[i]n Brown v. Board of Education, the Court relied heavily on social science data" to illustrate an editing practice. THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION, P.6 (a), at 17 (17th ed. 2001). Although one should not infer from the citation of Brown that the Bluebook's editors believed the Court relied on social science evidence, the citation does indicate the pervasiveness of the conventional narrative within the legal academy.

(58.) Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 13 (1971) ("It has long been obvious that [Brown] does not rest on the grounds advanced in Chief Justice Warren's opinion, the specifically harmful effects of enforced school segregation upon black schoolchildren."); see also Hon. William E. Doyle, Can Social Science Data Be Used in Judicial Decisionmaking?, 6 J.L. & EDUC. 13, 16 (1977) (arguing Brown Court did not rely much on social science, but was concerned with the injustice of Plessy); Dean M. Hashimoto, Science as Mythology in Constitutional Law, 76 OR. L. REV. 111, 138-43 (characterizing footnote eleven as merely a "passing nod to persuasive support" and unrelated to Brown's sweeping antidiscrimination principle); Paul R. Dimond & Gene Sperling, Book Review, Federal Courts and the Constitution: Of Cultural Determinism and the Limits of Law, 83 MICH. L. REV. 1065, 1076-77 (1985) (reviewing SOWELL, supra note 57) (critiquing Sowell's view that Court found the footnote eleven data to be dispositive).

(59.) Friedman, supra note 44, at 62.

(60.) One exception to the general reluctance among skeptics to inquire about the Brown Court's motives is Hashimoto, supra note 58. See infra Part III for a critical summary of Hashimoto's argument.

(61.) Compare analogous "impact studies" that measure whether courts rely on certain sources as legal authority by counting citations to those sources. See, e.g., Frederick Schauer & Virginia J. Wise, Legal Positivism as Legal Information, 82 CORNELL L. REV. 1080, 1108 (1997) (measuring the Court's reliance on "nonlegal materials" based on the number of citations).

(62.) Thomas L. Hafemeister & Gary B. Melton, The Impact of Social Science Research on the Judiciary, in REFORMING THE LAW' IMPACT OF CHILD DEVELOPMENT RESEARCH 27, 33 (Gary B. Melton ed., 1987).

(63.) See Ronald Roesch, Stephen L. Golding, Valerie P. Hans & N. Dickson Reppucci, Social Science and the Courts: The Role of Amicus Curiae Briefs, 15 J. L. & HUM. BEHAV. 1, 3 (1991); Charles Robert Tremper, Sanguinity and Disillusionment: Where Law Meets Social Science, 11 J.L. & HUM. BEHAV. 267, 268 (1987) (arguing that citations "represent only a fraction of the impact from law-related social science research").

(64.) Even Paul Rosen, one of those advocating the Brown Court's presumptive reliance on social science, acknowledged that "[i]t is possible that the Supreme Court could arrive at a decision for one set of reasons but in its written opinion present for public consumption a second set of reasons." ROSEN, supra note 33, at 164.

(65.) See supra Part I.

(66.) BERNARD SCHWARTZ & STEPHAN LESHER, INSIDE THE WARREN COURT 46 (1983) (noting that, in interview with Kluger, Warren Clerk Richard Flynn suggested that "there was no method to organizing the footnote.").

(67.) ED CRAY, CHIEF JUSTICE: A BIOGRAPHY OF EARL WARREN 285 (1997) (quoting Earl Warren); see also POWE, supra note 16, at 29 (noting that Warren, a natural politician, "knew the importance of getting his message to as many people as possible").

(68.) See POWE, supra note 16, at 29.

(69.) HILL & GREENBERG, supra note 6, at 119.

(70.) Brown, 347 U.S. at 489-490 n.4. The Court listed the following historical sources: HOWARD K. BEALE, A HISTORY OF FREEDOM OF TEACHING IN AMERICAN SCHOOLS (1941); R. FREEMAN BUTTS & LAWRENCE A. CREMIN, A HISTORY OF EDUCATION IN AMERICAN CULTURE (1953); ELLWOOD PATTERSON CUBBERLEY, PUBLIC EDUCATION IN THE UNITED STATES: A STUDY AND INTERPRETATION OF AMERICAN EDUCATIONAL HISTORY (1934); and EDGAR WALLACE KNIGHT, PUBLIC EDUCATION IN THE SOUTH (1922).

(71.) Brown, 347 U.S. at 489-490 n.4 (internal citations omitted).

(72.) This is not to suggest, however, that the footnote four sources had dispositive significance in the Court's opinion, but rather that those sources at least informed the Court's thinking in some meaningful way.

(73.) 347 U.S. 497 (1954).

(74.) See ABRAHAM L. DAVIS, THE UNITED STATES SUPREME COURT AND THE USES OF SOCIAL SCIENCE DATA 66-67 ("[I]t is reasonable to conclude that the outcome of the Brown case would have been the same even without [scientific] data because the Bolling decision was in line with the 1954 [Brown] decision."); POWE, supra note 16, at 33 (arguing same).

(75.) See, e.g., Turner v. City of Memphis, 369 U.S. 350 (1962) (municipal airport eating facilities); New Orleans City Park Improvement Ass'n v. DeTiege, 252 F.2d 122 (5th Cir. 1958), aff'd mem. 358 U.S. 54 (1958) (public golf course and parks); Mayor of Baltimore v. Dawson, 220 F.2d 386 (4th Cir. 1955), aff'd mem. 350 U.S. 877 (1955) (public beaches and bathhouses); Muir v. Louisville Park Theatrical Ass'n, 202 F.2d 275 (6th Cir. 1953), vacated per curiam, 347 U.S. 971 (1954) (recreational parks); Bynum v. Schiro, 219 F. Supp. 204 (E.D. La. 1963), aff'd mem. sub nom. Schiro v. Bynum, 375 U.S. 395 (1964) (municipal auditorium); Dorsey v. State Athletic Comm'n, 168 F. Supp. 149 (E.D. La. 1958), aff'd mem. sub nom. State Athletic Comm'n v. Dorsey, 359 U.S. 533 (1959) (athletic contests); Browder v. Gayle, 142 F. Supp. 707 (M.D. Ala.), aff'd mem. sub. nom. Gayle v. Browder, 352 U.S. 903 (1956) (buses).

(76.) See Hashimoto, supra note 58, at 141 (citing Stell and DeTiege).

(77.) See supra Part IIA.

(78.) Brewer, supra note 2, at 1562.

(79.) In 1954, a contemporary scholar tried to reconcile the Brown opinion with the Court's summary dispositions in Muir and similar cases. Shortly after Brown was decided, Ernst Borinski presciently argued that the Brown holding applied to public "learning experiences" in all walks of life, rather than simply classroom activities. Ernst Borinski, A Legal and Sociological Analysis of the Segregation Decision of May 17, 1954, 15 U. PITT. L. REV. 622, 625-26 (1954) (arguing that "[t]he outlawing of segregation in public schools thus implies the elimination of segregation in all areas where commingling of the races is considered essential to the learning processes") (emphasis added).

(80.) See CRAY, supra note 67, at 285. Cray based his observation upon Earl Warren's edited reading copy of the opinion, located in the Earl Warren papers in the Library of Congress. Id.

(81.) KLUGER, supra note 6, at 706 (quoting Chief Justice Warren).

(82.) CRAY, supra note 67, at 285 (quoting Richard Flynn).

(83.) KLUGER, supra note 6, at 706 (quoting Earl Pollock). The statements of other individuals close to the Justices' internal deliberations provide less compelling but still somewhat persuasive evidence against the conventional narrative. Justice Clark, concerned about the provocative effect of including Gunnar Myrdal's work in the footnote told Warren that the work "wouldn't go down well in the South. And he didn't need it." Id. at 706 (quoting Justice Clark). Moreover, Alexander Bickel, a clerk for Justice Frankfurter during Brown, noted: "The opinion ... should have said straightforwardly that Plessy was based on a self-invented philosophy, no less psychologically oriented than the Court was being now [in Brown] in citing these sources to justify the holding that segregation inflicted damage." Id. at 707 (quoting Bickel).

(84.) See SCHWARTZ & LESHER, supra note 66, at 47.

(85.) See John Hart Ely, If at First You Don't Succeed, Ignore the Question Next Time? Group Harm in Brown v. Board of Education and Loving v. Virginia, 15 CONST. COMMENT. 215, 216-17, n.7 (1988) ("If the question is whether the experiences of two groups of people are equal, where better to look than social-psychological studies?"); David L. Faigman, "Normative Constitutional Fact-Finding": Exploring The Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541, 567 (1991) ("Relevant to [the Brown Court's] inquiry was the 'feeling of inferiority' segregation instilled and the detrimental effects engendered by segregation. These are empirical questions and ... social science was pertinent to the inquiry.").

(86.) See Faigman, supra note 85, at 545-47 (noting Marshall Court's habitual practice of making factual assertions without fact finding). Faigman notes that the Supreme Court's early fact-finding arose from the Justices' "best guesses" about the factual matter at hand. Id. at 546. The Marshall Court, unlike the modern Court, did not have to introduce data to support its factual assertions. Thus, in 1824, Chief Justice Marshall could assert, "with little fear of contradiction," that "[a]ll America understands, and has uniformly understood, the word 'commerce,' to comprehend navigation." Id. at 545 (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,190 (1824)).

(87.) See ROSEN, supra note 33, at 102-05 (noting that Court's lack of scientific expertise in the 1870s stalled the growth of patent and trademark law, and that early twentieth century social science formulae which the Court used in relevant cases were primitive).

(88.) Speculating about judicial motives can rarely produce clear-cut results. See ROSEN, supra note 33, at 164-65 (arguing that an inquiry into the Court's motives is "fruitless" because "the private motivations, encounters, and professional calculations of the justices are no more open to public inspection than are the motivations, encounters, and calculations of politicians, generals, and other decision makers"). The difficulty is compounded where, as is the case here, one is trying to prove a negative--that the Court's constitutional analysis did not derive from social science evidence. However, I do not regard these are sufficient reasons to avoid the undertaking altogether. For one thing, speculating about the Court's motives can yield some answers, however tentative, about the nature of its decision-making process.

(89.) See ROSEN, supra note 33, at 165 ("Needless to say, the Supreme Court has no command of troops to order compliance with its decisions ... [T]he authority of the high bench may be defined ultimately as moral in nature."); cf. Stephen L. Carter, The Right Questions in the Creation of Constitutional Meaning, 66 B.U.L. REV. 71, 84 (1986) ("[I]n liberal theory [there must] be a way of recognizing law and distinguishing it from simple power.... If [judges] do something else--for example, enforcing their preferences and calling them law--they are violating the rules that make liberal constitutional adjudication possible.") (citations omitted); Horwitz, The Constitution of Change, supra note 21, at 36 (noting Chief Justice Hughes' warning that "disastrous consequences ... would befall any Court that became inattentive to the bases of its own legitimacy") (citations omitted).

(90.) 505 U.S. 833 (1992) (joint opinion of O'Connor, Kennedy & Souter, JJ.).

(91.) Id. at 865.

(92.) Id. at 867.

(93.) Id.

(94.) Id. at 865-66 (emphasis added).

(95.) POWE, supra note 16, at 21; see also LEO KATCHER, EARL WARREN: A POLITICAL BIOGRAPHY 322 (1967) (noting that the Court was not merely laying down a rule of law but "altering a way of life").

(96.) See Horwitz, Warren Court, supra note 21, at 8 ("[F]or the judges who were deciding Brown v. Board of Education, the desire not to offend the South and not to directly overturn almost a century of Supreme Court decisions under the Fourteenth Amendment was very powerful."); see also POWE, supra note 16, at 46 ("Southerners might wonder not only why the Southern way of life was unconstitutional but also how and when it became unconstitutional ... What was constitutional from the presidency of Grover Cleveland to that of Eisenhower was, overnight, unconstitutional.... How could that be?").

(97.) See, e.g., Conference Notes of Justice William O. Douglas, Bolling v. Sharpe, Dec. 13, 1952 (on file with Library of Congress and Stanford Law Review) (noting Chief Justice Vinson's concern that the "situation is very serious and very emotional" and that the "abolition of separate school system in South raises serious practical problems"); Conference Notes of Justice William O. Douglas, Brown v. Bd. of Educ., Dec. 13, 1952 (on file with Library of Congress and Stanford Law Review) (noting Justice Black's concern that "there may be violence if Court holds segregation unlawful" and "states would probably take evasive measures [while purporting to] obey"); Conference Notes of Justice William O. Douglas, Briggs v. Elliott and Davis v. County Sch. Bd. of Prince Edward County, Dec. 12, 1953 (on file with on file with Library of Congress and Stanford Law Review) (noting Justice Clark's prediction that "violence will follow in the [S]outh" if the Court strikes down school segregation).

Perhaps even more than the Court had anticipated, the Southern resistance to the Brown decision threatened the Court's legitimacy. See HORWITZ, WARREN COURT, supra note 14, at 15 (noting that the Southern response "produced the most powerful challenge since the Civil War to the very legitimacy of the Supreme Court and the rule of law."). For discussions of Southern efforts to thwart the Court's decision through violence, see NUMAN V. BARTLEY, THE RISE OF MASSIVE RESISTANCE: RACE AND POLITICS IN THE SOUTH DURING THE 1950S (1969); MICHAL R. BELKNAP, FEDERAL LAW AND SOUTHERN ORDER: RACIAL VIOLENCE AND CONSTITUTIONAL CONFLICT (1987), especially chapter 2, entitled "The Violent Aftermath of Brown"; TONY FREYER, THE LITTLE ROCK CRISIS: A CONSTITUTIONAL INTERPRETATION (1984); NEIL R. MCMILLEN, THE CITIZENS' COUNCIL: ORGANIZED RESISTANCE TO THE SECOND RECONSTRUCTION, 1954-1964 (1971).

(98.) See Howard Gillman, The Court as an Idea, Not a Building (or a Game): Interpretive Institutionalism and the Analysis of Supreme Court Decision-Making, in SUPREME COURT DECISION-MAKING: NEW INSTITUTIONALIST APPROACHES 65, 81 (Cornell W. Clayton & Howard Gillman eds., 1999) (noting that "[m]aintaining legitimacy or authority ... may also lead the [J]ustices to work harder to establish a united front in high-stakes cases, as with [Brown]...."); see also HORWITZ, WARREN COURT, supra note 14, at 23-24 (noting that "only a unanimous decision could provide sufficient legitimacy for so grave and far-reaching a reversal of constitutional precedent"). For a discussion of the Brown Court's efforts to achieve unanimity, see Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.J. 1 (1979).

(99.) Some readers might object that the present claim places excessive importance on the text of the Brown opinion. Some legal commentators have suggested that the wording of Court opinions does not matter a great deal to the lay public. See Friedman, supra note 44, at 53 (criticizing legal historians' "obsession with legal texts" on the ground that "[t]he craft, the line of argument, the legal mumbo jumbo may be unimportant, as far as impact is concerned, or the way the case is received by the wider public....") (emphasis in original); James C. Rehnquist, The Power that Shall Be Vested in a Precedent: Stare Decisis, the Constitution and the Supreme Court, 66 B.U.L. REV. 345, 355 (1986) (expressing skepticism about whether "the Supreme Court and its decisions figure largely in the national political consciousness at all"). Even if scholarly doubt about the importance of legal text might hold true generally, it rings hollow with respect to Brown. The Court, given the monumental significance of the case on the national political consciousness and the widespread publication of the opinion, see supra text accompanying note 97, had to ensure that its decision-making process appeared credible to the wider public. In this regard, it is noteworthy also that the members of the Warren Court were particularly sensitive to academic criticism of their decisions. See Laura Kalman, Commentary, The Wonder of the Warren Court, 70 N.Y.U. L. REV. 780, 781-82 (1995) ("[Academic] commentary may have had more impact on Warren Court Justices than [today's Justices]."). For these reasons, it is reasonable to presume that the Court, in the course of preparing the Brown opinion, was mindful of the need to provide a compelling legal rationale for striking down school segregation.

(100.) See supra Part I.

(101.) Several scholars have suggested that the Court employed the "living Constitution" rationale as a compromise intended to preserve unanimity among the Justices. See BERNARD SCHWARTZ, SUPER CHIEF: EARL WARREN AND HIS SUPREME COURT--A JUDICIAL BIOGRAPHY 87-88 (1983) (noting that "a sharply split decision would scarcely be a ringing victory" for Warren); Horwitz, The Constitution of Change, supra note 21, at 90 (characterizing Warren's "decision to deploy a changed circumstances rationale [in Brown] as a noble compromise essential for achieving unanimity"); Hutchinson, supra note 96, at 43 (noting Chief Justice Warren's "considerable personal skills of persuasion" in ensuring the unanimity of the Brown Court).

(102.) See Horwitz, The Constitution of Change, supra note 21, at 89-90:

   The Brown Court's adoption of a changed circumstances view ... must be
   analyzed in light of Chief Justice Warren's concerns about offending the
   South.... [Using social science data as an excuse], the Court pointedly
   avoided deciding whether Plessy was wrong the day it was decided.

Id.

(103.) See Gillman, Originalism, supra note 21, at 218-24 (tracing the rise of the "living Constitution" and decline of originalism to the Progressive Era legal theories of Holmes, Cardozo, and others); Horwitz, The Constitution of Change, supra note 21, at 51-57 (same).

(104.) See Gillman, Originalism, supra note 21, at 212 (identifying influential intellectuals of the early Republic, among them Thomas Jefferson and Ralph Waldo Emerson, who "expressed doubt that the interpretation of such a document could resist the pressures of change and partisanship").

(105.) See Horwitz, The Constitution of Change, supra note 21, at 51-52 & 52 n.93 (quoting Woodrow Wilson's statement in 1885 that "government.... is accountable to Darwin, not to Newton," and that "[w]e are the first Americans to hear our countrymen ask whether the Constitution is still adapted to serve the purposes for which it was intended.") (citations omitted).

(106.) See Horwitz, Warren Court, supra note 21, at 6 (noting that in the early part of the twentieth century "a growing body of thought suggested that it was not possible to talk about the Constitution as having a fixed and permanent meaning"). Horwitz notes that Brandeis and Pound's more "narrow rendition" of the changing Constitution rationale was premised on a common law idea that the Constitution should be interpreted in light of changed historical circumstances, while Cardozo's broader version was premised on the more radical idea that constitutional content--i.e., the "content and significance" of the Constitution's text--could change over time. Horwitz, The Constitution of Change, supra note 21, at 54-56. Setting aside these important distinctions, my present aim is simply to point out that legal thinkers were contemplating the idea of a historically changing Constitution in the half-century before Brown was decided.

(107.) Gillman, Originalism, supra note 21, at 223.

(108.) 290 U.S. 398 (1934).

(109.) Id. at 442-43 (citations omitted) (emphasis added). See Gillman, Originalism, supra note 21, at 224 (noting that Chief Justice Hughes' opinion represented "an abdication of a commitment to constitutionalism as [Chief Justice Marshall] understood the concept."); Horwitz, The Constitution of Change, supra note 21, at 55-56.

(110.) Franklin D. Roosevelt was the most well known advocate of the living Constitution theory during the 1930s. See Gillman, Originalism, supra note 21, at 231 (describing dispute with Justice Sutherland triggered when President Roosevelt declared that the Constitution "of necessity has changed in keeping with the changing times and conditions") (citations omitted).

(111.) Charles A. Beard, The Living Constitution, 185 ANNALS AM. ACAD. POL. & SOC. SCI. 29, 31 (May 1936). The symposium, focusing on the continued viability of the American Constitution in the face of early twentieth century industrialism, featured both sides of the New Deal debate regarding constitutional theory. Compare Beard's observation with David Prescott Barrows, The Constitution as an Element of Stability in American Life, 185 ANNALS AM. ACAD. POL. & SOC. SCI. 1, 5 (May 1936) (noting that "the Constitution has remained largely permanent and unmodified, becoming sacrosanct with the passage of time and proving its adequacy in successive crises of the Nation."). See also Gillman, Originalism, supra note 21, at 232-33 (describing the 1936 symposium).

(112.) See Lochner v. New York, 198 U.S. 45 (1905) (establishing doctrine of economic substantive due process and liberty of contract).

(113.) See Horwitz, The Constitution of Change, supra note 21, at 56-57 (noting that after 1937, the New Deal Court adopted a view of the Constitution as static and unchanging); Horwitz, Warren Court, supra note 21, at 5-7.

(114.) 300 U.S. 379 (1937).

(115.) 261 U.S. 525 (1923).

(116.) See Horwitz, Warren Court, supra note 21, at 6. For a summary of the Court's many Lochner-era substantive due process decisions, see GERALD GUNTHER & KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 465-70 (13th ed. 1997).

(117.) West Coast Hotel, 300 U.S. at 397. For analysis of the importance of this case in the history of legal theory, see HORWITZ, TRANSFORMATION 1870-1960, supra note 44, at 7 ("The New Deal's constitutional revolution of 1937 was justified not as a powerful break with the old order but as a conservative restoration of neutral constitutional principles that had supposedly been thrown overboard by the Lochner Court."); Gillman, Originalism, supra note 21, at 238 ("[W]hen a majority [of the Court] finally decided to abandon [originalism] it suffered a failure of nerve in the form of an unwillingness to make a case for the irrelevance or impracticability of originalist constitutionalism."); Horwitz, The Constitution of Change, supra note 21, at 56-57 ("The new majority [in West Coast Hotel] justified overruling the Lochner Court precedents ... on the ground that the Lochner majority itself had departed from the timeless truths of constitutional legitimacy."); Horwitz, Warren Court, supra note 21, at 6 (arguing that the New Deal majority charged the Lochner Court with having been "overcome by `mechanical jurisprudence' ... apply[ing] legal ideas badly and ... creat[ing] a monster.") (citations omitted).

(118.) Horwitz, Warren Court, supra note 21, at 7.

(119.) Id.; see also Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1, 3-4 & 4, n.4 (noting that rhetoric of constitutional "restoration" is now "appreciated as a myth created by scholars wishing to justify the New Deal Court's departure from Lochner Court norms.") (citations omitted).

(120.) Howard Gillman argues that, by the time of the West Coast Hotel decision, the notion of an evolving Constitution had become "the established wisdom in constitutional theory." Gillman, supra note 21, at 240. Even presuming Gillman is correct, it is crucial to note that the Court maintained, until Brown, a firm rhetorical commitment to the belief that constitutional meaning is anchored to the framers' original intent.

(121.) See McConnell, supra note 16, at 949 n.5 (referring to tenBroek as "the leading constitutional scholar of the Fourteenth Amendment at that time").

(122.) Jacobus tenBroek, Use by the United States Supreme Court of Extrinsic Aids in Constitutional Construction, 27 CAL. L. REV. 399, 399 (1939) (emphasis supplied).

(123.) That originalism remained the Court's favored constitutional theory at the time of Brown was acknowledged by Justice Jackson in his (unpublished) draft of what he intended to be a concurring opinion in Brown. Wrote Jackson: "It is customary to turn to the original will and purpose of those responsible for adoption of a constitutional document as a basis for its subsequent interpretation." Draft Memorandum, Concurring Opinion, Brown v. Bd. of Educ. (Mar. 15, 1954) (Jackson, J.), at 6 (on file with Stanford Law Review). Jackson ultimately abandoned his draft after suffering a serious heart attack on March 30, 1954, which had significantly "reduce[d] the likelihood that he would ... turn out a persuasive concurrence." KLUGER, supra note 6, at 695.

(124.) Brown, 347 U.S. at 492.

(125.) Justice Jackson's (unpublished) concurring opinion reflects the Court's self-recognition that Brown implicated, more than any other case had done previously, the debate over what constitutes the appropriate constitutional theory. Wrote Jackson: "[T]he plain fact is that the questions of constitutional interpretation and of the limitations on responsible use of judicial power in a federal system in these [segregation] cases are as far-reaching as any that have been before the Court since its establishment." Draft Memorandum, Concurring Opinion, Brown v. Bd. of Educ. (Mar. 15, 1954) (Jackson, J.), at 4 (on file with Stanford Law Review).

(126.) See Horwitz, Warren Court, supra note 21, at 5 (characterizing Brown Court's adoption of "living Constitution" theory as a "constitutional revolution").

(127.) Horwitz, The Constitution of Change, supra note 21, at 34; see also Gillman, Originalism, supra note 21, at 192 (noting that "[n]on-originalism or some notion of the `living Constitution' ... runs the risk that ... [judges will] enforce a version of the fundamental law that was never formally authorized by the people"); Strauss, supra note 21, at 878 (arguing that originalism and textualism has over the Court's history been a "starting point" for constitutional interpretation, such that "[a]n air of illegitimacy surrounds any alleged departure from the text or original understandings").

(128.) 478 U.S. 186 (1986).

(129.) Id. at 194 (noting that the liberties protected under the substantive due process doctrine should be limited to those that are "implicit in the concept of ordered liberty" and those that are "deeply rooted in this Nation's history and tradition").

(130.) Horwitz, The Constitution of Change, supra note 21, at 33.

(131.) See Robert K. Merton, A Note on Science and Democracy, 1 J. LEGAL & POL. SOC. 115, 118 (1942) (observing that the "scientific ethos" comprised "[f]our sets of institutional imperatives--universalism, communism [the idea that scientific findings belong to the community], disinterestedness, [and] organized s[k]epticism"); see also BERNARD BARBER, SCIENCE AND THE SOCIAL ORDER 62 (1952) ("One of the cultural values we have to speak of is the value of rationality, and the congruence of this moral preference with science is obvious.") (emphasis original); MALCOLM WILLIAMS, SCIENCE AND SOCIAL SCIENCE: AN INTRODUCTION 104 (2000) ("The opposite of relativism is objectivism, and it is the certainty of the existence of an objective reality ... that has characterized most of science since the time of Newton.").

(132.) The "social sciences" are understood to include sociology, psychology, social psychology, economics, political science, anthropology, and other disciplines that focus their attention on human interaction. BARBER, supra note 131, at 239.

(133.) ROSEN, supra note 33, at 85.

(134.) ROBERT E.L. FARIS, CHICAGO SOCIOLOGY: 1920-1932, at 3 (1967)(quoting Albion W. Small).

(135.) See BARBER, supra note 131, at 238 (discussing similarities between social and natural sciences); Id. at 244 ("More and more [the social scientists'] self-conscious ambition is the same as that of the natural scientists, to create a set of highly determinate theories for the explanation of empirical social phenomena."); ROSEN, supra note 33, at 171 (discussing how the modern social sciences, like the other sciences, featured the scientific method, which had become the "dominant cultural standard of rationality" in the middle of the twentieth century).

(136.) See BARBER, supra note 131, at 238-39 (noting that "natural and social science in the modern world are obviously at significantly different stages of development and acceptance.").

(137.) BARBER, supra note 131, at 243. For a general discussion of the emergence of social science as a professional discipline in the United States, see BARBER, supra note 131; L.L. BERNARD & JESSIE BERNARD, ORIGINS OF AMERICAN SOCIOLOGY: THE SOCIAL SCIENCE MOVEMENT IN THE UNITED STATES (1943); MARY O. FURNER, ADVOCACY & OBJECTIVITY: A CRISIS IN THE PROFESSIONALIZATION OF AMERICAN SOCIAL SCIENCE, 1865-1905 (1975); THOMAS L. HASKELL, THE EMERGENCE OF PROFESSIONAL SOCIAL SCIENCE: THE AMERICAN SOCIAL SCIENCE ASSOCIATION AND THE NINETEENTH-CENTURY CRISIS OF AUTHORITY (1977); DOROTHY ROSS, THE ORIGINS OF AMERICAN SOCIAL SCIENCE (1991).

(138.) GORDON W. ALLPORT, THE NATURE OF PREJUDICE x (Anchor Books ed. 1958) (emphasis in original).

(139.) Another indicator of the standing of social science in the middle of the twentieth century is that, in the years following Brown, Southern segregationists who criticized the Court for relying on social science evidence attempted, in the same breath, to come up with analogous evidence favoring the preservation of racial segregation. See DAVIS, supra note 74, at 110-11 (exposing hypocrisy of segregationists who objected to the Court's use of social science while favoring implementation of school placement acts that called for psychological studies of black schoolchildren wishing to attend all-white schools); ROSEN, supra note 33, at 190-91 (criticizing segregationists who argued that the Court should have ignored social science evidence, yet simultaneously tried to use social science evidence indicating that school integration causes social harm); Doyle, supra note 58, at 15 (noting that segregationists are "not necessarily consistent in [their] criticism: having complained about the courts' use of social science as a basis for unpopular decisions, some urge on the court other, allegedly contrary social science data, so as to persuade a retreat."); Margaret Mead, Introductory Remarks, in SCIENCE AND THE CONCEPT OF RACE 3 (Margaret Mead, Theodosius Dobzhansky, Ethel Tobach & Robert E. Light eds., 1968) (noting barrage of pseudoscientific statements from segregationists who, since Brown, have attempted to prove the innate biological inferiority of black Americans); Anders Walker, Legislating Virtue: How Segregationists Disguised Racial Discrimination as Moral Reform Following Brown v. Board of Education, 47 DUKE L.J. 399 (1997) (arguing that segregationists manipulated social science statistics regarding African-American illegitimacy and marriage rates after Brown to achieve their objectives). For an example of a pro-segregation author's use of social science data to indicate the "justice" of segregation, see KILPATRICK, supra note 40, at 59 (presenting data from the National Office of Vital Statistics supposedly indicating an inherent moral disparity between the black and white populations).

(140.) ALLPORT, supra note 138, at 474.

(141.) GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY 1024 (20th Anniversary ed. 1962).

(142.) For lucid descriptions of the legal realist movement and its affect on American legal education, see HORWITZ, TRANSFORMATION 1870-1960, supra note 44; LAURA KALMAN, LEGAL REALISM AT YALE, 1927-1960 (1986); Martin P. Golding, Jurisprudence and Legal Philosophy in Twentieth-Century America--Major Themes and Developments, 36 J. LEGAL EDUC. 441 (1986); Edward A. Purcell, Jr., American Jurisprudence Between the Wars: Legal Realism and the Crisis of Democratic Theory, 75 AM. HIST. REV. 424 (1969); G. Edward White, From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America, 58 VA. L. REV. 999 (1972).

(143.) See HORWITZ, TRANSFORMATION 1870-1960, supra note 44, at 233-35 (discussing dialectical relationship between expertise theory and proceduralism); cf. FURNER, supra note 137, at ix (noting that "at least since the latter part of the nineteenth century a large measure of control over the complex, routine, day-to-day workings of vital economic, social, and political processes has been delegated to people with professional credentials as the source of their authority").

(144.) See Laura Kalman, Bleak House, 84 GEO. L.J. 2245, 2251 (1996) (reviewing JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE (1995)) (noting that "Casebook after casebook ... tried to integrate law with the social sciences"); Jack Ladinsky, The Teaching of Law and Social Science Courses in the United States (Working Paper Number 11, Ctr. for Law and Behavioral Sciences, Univ. of Wis. 1, 1975) ("From the turn of the [twentieth] century on[,] law schools were a fertile milieu in which legal scholars integrated social and psychological explanations into legal thought."); see also ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850S TO THE 1980S (1983) 131-54 (describing growth of law and social science in the early twentieth century); Leonard S. Cottrell, Jr., The Interrelationships of Law and Social Science, in LAW AND THE SOCIAL ROLE OF SCIENCE 106, 106-131 (Harry W. Jones ed., 1967) (describing law and social science movement as it existed in 1967); Justin Miller, New Developments in Law Schools, 145 ANNALS AM. ACAD. POL. & SOC. SCI. 114, 116 (Sept. 1929). Miller specifically observed that, in addition to new courses encouraging greater collaboration between law and the social sciences, "in some of the [law] schools men representing other techniques, such as political science, economics, sociology and psychology, are being invited to participate in giving such courses."

(145.) KALMAN, supra note 142, at 150 (citing Yale Law School curriculum committee report of May 4, 1946).

(146.) Ladinsky, supra note 144, at 2-3.

(147.) Hashimoto writes:

   In a sense, the Court was turning the focus away from itself and giving an
   explanation that would invite sympathy from those it needed to persuade.
   The Court's reference to empirical studies assisted further in pushing the
   focus away from the Court as the cause for the desegregation by pointing to
   an apparently objective justification. Hashimoto, supra note 58, at 143.

(148.) See Jack M. Balkin, Brown v. Board of Education: A Critical Introduction, in WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID: THE NATION'S TOP LEGAL EXPERTS REWRITE AMERICA'S LANDMARK CIVIL RIGHTS DECISION 3, 51 (Jack M. Balkin ed., 2001) ("If anything, footnote 11 gave critics of the decision more ammunition than if Warren had simply omitted any reference to the studies."); see also supra Part II.

(149.) For a discussion of the impact of "background" conditions on judicial decision-making, see Hon. Joseph A. Greenway, Jr., The Weintraub Lecture, Judicial Decision Making and the External Environment, 51 RUTGERS L. REV. 181, 182 (1998) (noting the "political, social, intellectual, and other forces that influence and affect our judiciary and its decision making.").

(150.) For a general discussion of the judiciary's captivation with social science, see David M. O'Brien, The Seduction of the Judiciary: Social Science and the Courts, 64 JUDICATURE 8 (1980).

(151.) Fewer than twenty years after Brown, the allure of social science had diminished significantly. No longer did American society exhibit an almost pollyannaish faith in social science. Consider Robert Merton's observation in 1973 that "[i]t is unwise to permit exaggerated public images of the immediately attainable achievements of applied social science to go unchecked." ROBERT K. MERTON, THE SOCIOLOGY OF SCIENCE: THEORETICAL AND EMPIRICAL INVESTIGATIONS 76 (1973).

Sanjay Mody, J.D. Candidate, Stanford Law School, 2002; M. Phil., Oxford University, 1997; B.S.F.S., Georgetown University, 1995. I am grateful for suggestions and criticisms from Morton Horwitz and Michael Klarman. Thanks also to the editors of the Stanford Law Review, in particular George Sax, for their assistance, and to my family for its encouragement.