Vanderbilt Law Review


Mark V. Tushnet

First Page



The pioneering African-American historian Rayford Logan called the early years of the Progressive era the "nadir" of race relations in the United States. Historians and political scientists who study the Supreme Court generally agree that Supreme Court decisions are rarely substantially out of line with the kind of sustained national consensus regarding race relations that Logan described. Professors Bernstein and Karman point to popular culture, including the roaring success of D.W. Griffith's epic Birth of a Nation attacking Reconstruction and defending the Ku Klux Klan, and elite opinion such as the flourishing of scientific racism to demonstrate that there was indeed a broad national consensus favoring policies of racial subordination. What then are we to make of Progressive era decisions like Buchanan v. Warley?

Professors Bernstein and Klarman offer slightly different explanations for those decisions, and slightly different accounts of their significance. Both agree that the result in Buchanan is best explained as resulting from the Court's jurisprudential commitments. For Professor Bernstein, those commitments were to what he calls "traditional," as distinct from sociological, jurisprudence, while for Professor KIarman, the commitments were to enforcing at least, but perhaps no more than, the minimal meanings of the Constitution's language. Similarly, both authors agree that Buchanan had little impact on residential segregation, and that the NAACP's success in that case might have had some organization-building effects that contributed to the development of the NAACP's vigorous litigation campaign in succeeding decades. Professor Bernstein emphasizes the impact a ban on publicly mandated segregation would in theory have on housing prices, and is a bit more sanguine than Professor Kiarman about the possibility that a Court with a sustained commitment to "traditional" jurisprudence would have stood in the way of public policies that contributed to African-American subordination.

I agree with the main thrust of both Articles, and so these comments raise questions around the edges of their arguments.