I always enjoy reading Ruth Marcus’s colums in the Washington Post and sometimes I find myself agreeing completely with them. But I’ve got one particular beef with her August 31 column in which she critiques Rick Perry’s views on policy expressed in his 2010 book Fed Up. She says they “range from wrongheaded to terrifying,” which is not my view but which I guess is fair comment from hers. Toward the end of her column she attacks his proposal to allow Congress to overrule Supreme Court decisions by a two-thirds vote in both chambers. Interestingly, it was the Progressives and New Dealers from 1900 to the 1930s who most actively championed the legislative overriding of court decisions—something she doesn’t have space to mention in a 720-word column. But—and this is a good example of fairness in column writing—she does find the space to be quote Perry’s own reservation about the proposal. “This ‘risks increased politicization of judicial decisions,’ Perry allows, ‘but also has the benefit of letting the people stop the court from unilaterally deciding policy.’”
So far so good. But then she resorts to the ploy that liberals almost always resort to when obliged to defend judicial activism—citing Brown v. Board of Education, and saying that if you question judicial activism then you would never have ended racial segregation in schools. That’s usually a weak argument since there is good warrant in the Constitution—the Fourteenth Amendment—for a court to find that legally enforced racial segregation violates both the original intent and the specific text of the Constitution. But her ploy is slightly different: she implies that Congress in 1954 or in years thereafter would have overturned Brown. “Some benefit. Imagine what would have happened in the aftermath of Brown v. Board of Education if the Perry rule were in place.”
I think this is just wrong. In the 1950s there were majorities in both houses of Congress in favor of civil rights laws. Indeed civil rights acts were actually passed and signed into law by President Eisenhower in 1957 and 1960. Those acts were not as strong and effective as I and, I am sure, Ruth Marcus would like them to have been. Stronger legislation was not advanced by the Democratic leadership in the House and Senate because the Democratic party was split on civil rights. The House leadership (Sam Rayburn) did not want to push for legislation that would go nowhere in the Senate, and the Senate leadership (Lyndon Johnson) did not want to push so far that Southern Democratic senators would filibuster. Congressional Republicans were mostly in favor of civil rights legislation—as the votes on the much stronger Civil Rights Act of 1964 suggest. And senators and congressmen representing the majority of states that did not have state-enforced racial segregation of schools faced no immediate constituency demand that the court decision outlawing such segregation be overturned.
In other words, there is no reason to believe that there was ever a two-thirds supermajority in either house of Congress to overturn Brown v. Board of Education or any other pro-civil rights Supreme Court decision during the 1950s and 1960s. So it’s not fair to say that Rick Perry’s revival of the Progressive proposal to allow Supreme Court decisions to be overturned by congressional supermajorities would have resulted in the re-legalization of school segregation.
