Mehra- Blog Post 2

  In her article, Harris claims that through its ruling in Brown I, the Court was complicit in protecting white privilege and perpetuating whiteness as property (Harris 1753). Specifically, she posits that Brown I held “ambiguous motives,” a “clouded rhetorical vision,” and the reemergence of whiteness as property in “a more subtle form” (Harris 1751, 1753). She additionally criticizes Brown II for breaking from precedent by “invit[ing] defiance and delay” into the state implementation of the integration demanded by Brown I. While some may view the Brown cases and subsequent related cases like Cooper v. Aaron as judicial overreach, Harris disagrees. To her, the Court had actually “underreached” by giving leeway to states “working” on achieving integration rather than seeing any remaining school segregation as immediately facially unconstitutional (Harris 1755). 

Harris’s arguments about Brown I upholding of a more subtle form of whiteness as property and criticism of the Court’s “all deliberate speed” requirement in Brown II are certainly convincing. Her argument about what the Court should have done, however, is less convincing. Relating to Brown I, she criticizes the Court for not addressing “the full measure of the harm” (Harris 1751). Relating to Brown II, she notes that “The Court implicitly assumed that the problem of inequality would be eradicated by desegregation” (Harris 1754). Here, Harris is arguing that the Court should have done more to ensure substantive (as opposed to formalistic) equality. The demand for more action from the judicial branch is hard to reconcile with its defined and limited powers. To stay within the scope of its constitutional power, the Court must limit its ruling to the “case or controversy” at hand. For Brown, the case would be ruling on the constitutionality of segregated schools. The Court had not explicitly been invited to rule on the topic of substantive equality and white privilege in America, making Harris’s discontent with the limited nature of the Court’s ruling relatively harder to accept. 

That said, it is a time-honored tradition that the legislative branch looks to the Court for guidance when drafting policy. By discussing substantive equality in broader terms, the Court would not necessarily be overreaching or impinging on the powers of any other branch. It would offer guidance but still allow for legislative discretion. 

Thus, while Harris’ desire for the Court to “fix” the problem of substantive inequality within Brown is hard to swallow, asking for this kind of equality to be at least addressed is fair. Furthermore, Harris’s argument highlights interesting legal questions. Does the Court have a responsibility to address the underlying cause of a case or controversy? And when does acknowledging an issue cross over into usurping legislative discretion?