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Franken-Coleman case: Thinking out loud about “equal protection,” the third part

Three paragraphs of recap and throat-clearing ahead. If you’ve followed the series so far, feel free to skip down to the first subhead.
Norm Coleman hopes that the Equal Protection clause of the U.S. Constitution (“No State shall …

Three paragraphs of recap and throat-clearing ahead. If you’ve followed the series so far, feel free to skip down to the first subhead.

Norm Coleman hopes that the Equal Protection clause of the U.S. Constitution (“No State shall … deny to any person within its jurisdiction the equal protection of the laws”) means that a substantial number of Minnesotans, whose absentee ballots were rejected for various flaws, are entitled to have their votes counted because other ballots with similar flaws were counted. Team Coleman’s appellate brief to the Minnesota Supreme Court making that argument, is due to be filed by the close of business today. Al Franken’s legal team must file their rebuttal by May 11. Coleman re-rebuts on 5/15. The Supremes will hear oral arguments on the matter June 1 and, sometime in June, will rule whether Franken has won the election or whether more counting is needed.

Because of the centrality of equal protection to the case, I have endeavored an overview of the history of the Equal Protection Clause and I propose to pick up today where I left off, with apologies for taking so long to get through it. In Part One, the lack of equal protection in the original Constitution was overcome by the inclusion of the Equal Protection Clause in the post-Civil War 14th Amendment. In Part Two, the post-Reconstruction Supreme Court virtually read “equal protection” out of the Constitution with the hideous “separate but equal” doctrine in the infamous Plessy v. Ferguson case in which seven of the eight justices presented they were from Mars.

I fear I try the patience of those who are mostly interested in how this affects Coleman v. Franken, which I promise I will get to starting in the next installment, but first the U.S. Supreme Court must rescue the Equal Protection Clause, which they did admirably and unanimously in the 1954 glorious “separate is inherently unequal” ruling in Brown v. the School Board. The case is well known, probably the best-known after Marbury v. Madison. So I’ll try to tell you a few things that aren’t as well known. (Once again, out of fear of being accused of self-plagiarism, I acknowledge that much of what follows comes from my 1987 Strib Constitution series and subsequent book. And yes, I have seen people get dinged for plagiarizing from themselves.)

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Brown decision not out of the blue
Because it is so famous and seemingly such a radical turn from the long-standing separate-but-equal doctrine of Plessy, Brown v. the School Board may seem to have come out of the blue. Far from it. It was the culmination of a string of successful NAACP lawsuits from the 1930s forward that forced various states to take separate but equal very literally. If you wanted separate, you had to at least approximate equal.

What if Missouri has only one state-run law school and no blacks are allowed? The Supremes’ answer: Missouri has to either let blacks in or start a second law school for blacks.

Texas reads that ruling and opens a black law school, but the faculty, library and other facilities are so blatantly inferior that the Supremes order the state to upgrade the black school, to preserve at least the pretense of separate but equal.

The University of Oklahoma grad school takes a different approach. A black applicant is admitted but required to sit in a “coloreds only” section in all of his classes, study at a segregated table in the library and eat at a segregated table in the cafeteria. The court says this won’t cut it, the black grad student was being humiliated — an important step toward the logic of Brown — but leaves open the possibility that Oklahoma could comply with the 14th Amendment by having a separate, truly equal program for blacks.

The Brown case was really an amalgam of separate-but-equal challenges arising out of segregated public school systems in four states plus the District of Columbia. Partly to discourage the idea that these cases were all about forcing northern values on the South, the lead plaintiff of the amalgamated appeal was the Brown family of Topeka, Kansas.

By this time, some of the defendants were in a position to argue that the black schools had comparable funding and facilities to the white schools. The NAACP was now arguing that because of social and psychological damage inflicted on the black kids by the stigma of a policy that said they were unfit to share a school with white kids, separate could never be equal no matter how equal the budgets.

Thurgood Marshall, later to become the first African-American Supreme Court justice, was the lead lawyer for the NAACP. William Rehnquist, later to become chief justice, was a law clerk for Justice Robert Jackson at the time and wrote a memo arguing for the continuation of the separate but equal doctrine. The memo would haunt Rehnquist when President Nixon nominated him for the bench, and again when President Reagan nominated him for promotion to chief justice. He claimed that he was writing only what he understood to be Jackson’s position at the time, although no other evidence supports the idea that Jackson was leaning that way.

The Supreme Court heard the oral arguments in late 1952. (Those impatient for Franken/Coleman finality please note: It was a year and  half between the arguments and the ruling.) Notes from the early discussions suggests that four justices were ready to repudiate the logic of Plessy but couldn’t find a solid fifth vote. The justices agreed that it was important to achieve unanimity around some ruling, perhaps a compromise. Chief Justice Fred Vinson couldn’t manage that task.

To buy time, the court scheduled another round of oral arguments. (Again, those in a hurry please note.) In late 1953, before the second round of arguments, Vinson dropped dead of a heart attack. Justice Felix Frankfurter, who felt the court desperately needed new leadership for the segregation cases, remarked that Vinson’s sudden death was “the first indication I have ever had that there is a God.”

A surprise appointment
As the new chief justice, President Eisenhower appointed California Gov. Earl Warren, whose career had been made more in politics than law. (Usually forgotten fact: Warren had been on the Republican ticket with Thomas Dewey in 1948. He was a moderate Repub in those days, not the liberal lion he became as chief justice.)

Warren was sworn in just before the reargument of the Brown cases. During the early post-argument discussions, Warren came down in favor of rejecting separate-but-equal, which guaranteed a majority for that position. But it took all of his political skills — and five more months — to cajole a unanimous ruling.

On May 17, 1954, Warrren read the decision from the bench: “Does segregation of children in public schools solely on the basis of race … deprive the children of the minority group of equal educational opportunities? We believe it does.”

The Brown ruling didn’t end racism, nor discrimination nor even state-sponsored segregation — 55 years later, we still struggle with those issues and are doing so right now as Minneapolis unveils a new plan for attendance zones — but it was a huge step. The great ruling also restored the lost meaning of the words “equal protection” in the 14th Amendment.

(A weird detail: Since the District of Columbia is not a state, and was one of the school systems in the Brown case, and since the 14th Amendment specifically bans states from depriving residents of “equal protection,” the court had to write a separate justification for applying the logic of Brown to the D.C. schools. They found it in the “due process” clause of the Fifth Amendment.)

If the history of constitutional equal protection ended here, Norm Coleman would have little basis for the argument he will submit to the Minnesota Supreme Court today. His case has little or nothing to do with securing equality for the freed slaves and their descendants who were clearly the group the framers of the 14th Amendment had in mind. But in the years after Brown, the logic of equal protection has been applied to groups other than African-Americans and issues other than segregated public facilities.

In the next installment of this fascinating and critically-acclaimed series (just kidding), the doctrine of equal protection will expand to more groups and more issues. And we will have seen Coleman’s brief to the MN Supremes.