From The Law and Politics Book Review

Vol. 9 No. 4 (April 1999) pp. 154-157.

 

THE SHIFTING WIND: THE SUPREME COURT AND CIVIL RIGHTS FROM RECONSTRUCTION TO BROWN by John R. Howard. Albany: State University of New York Press, 1999. 393 pp. Cloth $35.00. ISBN 0-7914-4090-7.

 

Reviewed by Michelle Donaldson Deardorff, Department of Political Science, Millikin University. Email: mdeardorff@mail.millikin.edu.

  

In THE SHIFTING WIND: THE SUPREME COURT AND CIVIL RIGHTS FROM RECONSTRUCTION TO BROWN, John R. Howard has attempted to integrate the research of Judicial Politics scholars with an examination of the constitutional development of the rights of African-Americans. Such integration between subfields and between law professors and political scientists has been rare and is therefore especially welcome. Howard’s work is quite impressive in his application of these broad judicial theories to a sweeping analysis of African-American legal history. This ambitious approach has resulted in a very readable, insightful rendering of the influences on the Court’s decisions, as well as an impressive exploration of the Court’s impact on the resulting political and legal cultures. It is not superficial and carefully assesses how the Court could simultaneously provide legal hope for African-Americans while spurring additional political and physical retaliation against the black community.

Professor Howard takes a traditional chronological approach to his analysis. He begins with the decade after the Civil War and marches through constitutional history until he reaches the BROWN decision. Within each distinct period, he carefully looks at the personnel on the Court and their individual racial experiences and philosophies. Connecting these individual perspectives to specific Supreme Court decisions, Professor Howard wants the reader to perceive what judicial politics scholars have been arguing for decades—the personal beliefs of justices influence the law. Howard then moves on to explain how the social and political climate not only influences the political and social climate of race relations in America, but also may impact other areas of law such as labor rights. For example, in his discussion of the Scottsboro trial and the resulting Court decisions surrounding the rights of the accused, Howard begins by carefully examining the facts of the case. He then continues by looking at other racial events of the period and how the trials mirrored the larger racial culture. Following this discussion of the case and climate, the chapter moves to a discussion of the Hughes Court, its members, and their specific rulings. Howard concludes by looking at the impact of the case on the racial and legal culture. The last case analysis is of BROWN v. BOARD OF EDUCATION, from which THE SHIFTING WIND returns to its larger thesis and asks how this legal history and racial climate impacts and informs contemporary discussions of race. Professor Howard concludes that the political environment prior to BROWN fashioned the Supreme Court justices who in turn influence the nation’s racial history and consequently our national destiny. Post-BROWN politics of judicial nominations and selections generated a Court with immense influence over the future of race and rights. Truly, as Howard demonstrates, the Rehnquist Court has been more sharply divided over these issues than any other controversy.

THE SHIFTING WIND is valuable because Howard explores the connections among the racial culture of each historical periods, the political and social philosophies of the individuals on the Court, and the perceptions of both the white majorities and African-American consumers of Supreme Court decisions. While such connections have been made regarding individual decisions (e.g., PLESSY v. FERGUSON (Lofgren 1987) or BROWN v. BOARD OF EDUCATION (Kluger 1975)), this has not been done in a chronological, comprehensive history. Many of the primary histories of the evolution of the constitutional rights of African Americans focus on specific issues like school desegregation (Wilkinson 1979) or affirmative action (Caplan 1997), or are larger constitutional or political analyses (Nieman 1991, Lively 1992, or Berry 1994). Professor Howard attempts, unfortunately not explicitly, to do what Epstein and Kobylka suggest in their 1992 work THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY. He looks at the changes in Supreme Court policy as emerging, not solely from personnel changes in the Court, but also because of alterations in the legal and social climates. As Howard recognizes, the relationships among these different stimuli are dynamic and interrelated. He moves Epstein and Kobylka’s analysis further by examining the impact decisions have on political, social, and legal climates. Howard is unconsciously (?) mirroring Canon and Johnson’s 1984/1999 model of the implementation and impact of judicial decrees.

THE SHIFTING WIND is also valuable for its detailed examination of specific Supreme Court cases. Professor Howard not only scrutinized well-known Court decisions like PLESSY and BROWN, but there is also a strong focus on less prominent yet significant cases such as McCABE v. ATCHISON (1914), which upheld a challenge to District of Columbia public accommodation segregation laws as a violation of the Civil Rights Act of 1875. Unfortunately, cases like McCABE are often left to the footnotes of many constitutional histories.

While there are great strengths to this work, especially as an introduction to African-American constitutional development for the generalist, there are a number of limitations in its use for the specialist. For example, Howard does not explicitly connect his theory to the existing literature in judicial politics. His analysis reflects a very traditional understanding of the cases and their relationships to each other. This is demonstrated by his reliance, especially in the BROWN chapters, on only a few of the most basic and traditional sources. While Professor Howard’s explication of the racial biographies and philosophies of the justices, as well as his larger political and social history is compelling, his documentation and sources are frequently not included. His research is supported by a very limited bibliography considering the scope of his thesis and the depth of his analysis.

His book is also weakened by his resolution of historical and academic controversies without (1) noting that there is a contention between scholars or (2) providing evidence for his resolution of these debates. For example, one debate among constitutional historians has been the exact nature of the historical facts surrounding US v. CRUIKSHANK (which determined the constitutional validity of the Enforcement Act). Having an interest in this case, I was excited to find that Howard provides several pages of the factual background of the CRUIKSHANK controversy. I was quite disappointed when I realized that I could do no additional personal research, because Howard provided limited sources for his summary. A second example of such documenting oversights is found in his discussion of BROWN v. BOARD. In noting the Court’s request for a second set of oral arguments regarding the original intent and expectations of the Fourteenth Amendment regarding school segregation, Professor Howard states several times that "There was nothing in the record of the debates attending the drafting and passage of the Fourteenth Amendment which suggested that its framers meant its language to apply to public schools" (311). While the Court ultimately decided to accept this interpretation, there is much research regarding the various interpretations of the Amendment on this issue. While Professor Howard’s explication of the Fourteenth Amendment is useful, the lack of evidence, support, or even analysis weakens his contention. What is most frustrating about this book is the gap between the promise of the analysis and the very limited evidentiary base.

Despite these limitations, this book is engaging. It provides an outstanding general introduction to both the historical legal dynamics between race and federalism and between the Court and the public. THE SHIFTING WIND is very accessible and fills a clear gap in the constitutional history of African-Americans by carefully connecting both judicial biography and racial culture through Howard’s analysis of the impact of the Supreme Court in the area of race and rights. It provides a much needed connection between the Judicial Politics and Constitutional Law fields that will hopefully be emulated by scholars in the future. Finally, Professor Howard’s book provides an interesting lens through which contemporary analysis of the current Court—both in the area of race and rights and in other contested arenas—could be viewed.

 

REFERENCES

 

Berry, Mary Frances. 1994. BLACK RESISTANCE/WHITE LAW: A HISTORY OF CONSTITUTIONAL RACISM IN AMERICA. Penguin.

 

Canon, Bradley C. And Charles A. Johnson. 1999. JUDICIAL POLICIES: IMPLEMENTATION AND IMPACT, second edition. Congressional Quarterly Press.

 

Caplan, Lincoln. 1997. UP AGAINST THE LAW: AFFIRMATIVE ACTION AND THE SUPREME COURT. Brookings: A Twentieth Century Fund Report.

 

Epstein, Lee and Joseph F. Kobylka. 1992. THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY. The University of North Carolina Press.

 

Kluger, Richard. 1975. SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA’S STRUGGLE FOR EQUALITY. Vintage Books.

 

Lively, Donald E. 1992. THE CONSTITUTION AND RACE. Praeger.

 

Lofgren, Charles A. 1987. THE PLESSY CASE: A LEGAL-HISTORICAL INTERPRETATION. Oxford University Press.

 

Nieman, Donald G. 1991. PROMISES TO KEEP: AFRICAN-AMERICANS AND THE CONSTITUTIONAL ORDER, 1776 TO THE PRESENT. Oxford University Press.

 

Wilkinson III., J. Harvie. 1979. FROM BROWN TO BAAKE: THE SUPREME COURT AND SCHOOL INTEGRATION: 1954-1979. Oxford University Press.

 

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

 

GAINES v. CANADA, 305 U.S. 337 (1938)

McCABE v. ATCHISON, 235 U.S. 151 (1914)

 

PLESSY v. FERGUSON, 163 U.S. 537 (1869)

 

U.S. v. CRUIKSHANK, 91 U.S. 542 (1876)


Copyright 1995