The Hidden Bermuda Triangle of Conservative Cases

Over the last decade, President Trump has produced a more conservative U.S. Supreme Court by his appointments. The Court has abolished the right to abortion and affirmative action in university admissions. But I have always thought that three lesser known cases decided around 1970 have been central to the Court’s conservatism: Dandridge, Milliken, and Davis.

Starting in the late 1960s, several celebrated academics, such as Harvard Law School’s Frank Michelman, authored scholarship on equal protection and due process that supported fundamental socio-economic rights for poor people. Ah the 1960s. It seems like centuries ago. Yet the U.S. Supreme Court, when it got around to considering these issues in the 1970s, generally disagreed with scholars like Michelman.

The Court rejected Michelman’s views in Dandridge v. Williams (1970), which upheld a Maryland cap on welfare benefits, regardless of a family’s size. This decision lacked humanity. The Court also said that socio-economic issues were “intractable.” But many decisions by the South African Constitutional Court in the last 25 years, supporting socio-economic rights, show such rights are enforceable. See e.g. Government of Republic of South Africa v. Grootboom (2000).

Next, the Supreme Court and the country in the late 60s and 70s started making progress on implementing Brown v. Board of Education. Greater integration was occurring, especially after the passage of the 1964 Civil Rights Act. But in Milliken v. Bradley (1974) (now known as Milliken I to distinguish it from a sequel), the Court ruled that court-ordered urban desegregation plans could not include the suburbs, despite white flight. This virtually stopped court-ordered desegregation in its tracks. Three decades later, the Roberts Court invalidated voluntary consideration of race in student assignments, even within a single urban district. But long before that, the Burger Court's decision in Milliken made some very questionable factual assessments and wrongly treated the State of Michigan as blameless in creating the pervasive segregation throughout the Detroit metro area. 

The third and final piece of the inegalitarian trilogy was Washington v. Davis (1976). There, the Court ruled that a facially race-neutral policy did not violate equal protection, even if the plaintiffs showed a dramatic disparate impact against a suspect class, absent proof of discriminatory purpose as well. This decision limited the power of equal protection.

The judicial approach advocated by Michelman and other liberal scholars but rejected in Dandridge, Milliken, and Davis, would have promoted a more progressive society.

To be sure, not all scholars agreed. Perhaps most famously, Gerald Rosenberg in The Hollow Hope argued that the judiciary cannot bring about meaningful change. He contended that Brown was a costly and overly lawyered chimera that fell short in the end. And critical race theorist Derrick Bell drew a similar conclusion. Bell further argued that Black people will only be allowed to move forward when it suits white people -- what he called the "interest convergence" theory.

Both Rosenberg and Bell put greater faith in social and political movements than in courts, arguing that the former are more powerful and democratic. These arguments have value, but they falsely assume that one must choose. Legal progress requires all tools -- court decisions, politics, protests, etc. When I was a  civil rights lawyer, my firm certainly did not simply file lawsuits.

The bad decisions stand in the way. But that's no reason not to seek good ones. Progressive court decisions can at least serve as a catalyst for positive social change.

That said, the work of Rosenberg, Bell, and others reminds us not to rely on courts alone. Had cases like Dandridge, Milliken, and Davis been decided in what I regard as the "right way," the Roberts Court might by now have overruled them, in the same way that it has overruled other liberal precedents. But in the meantime, political actors might have built on those precedents to enact legislation and affect social change that would be more difficult for an extremely conservative Court to erase.