Thursday, October 26, 2006

Stanley Mosk and Lewis Powell
Gail Heriot

Loyal Right Coast readers may recall a post I did a year ago about Justice Stanley Mosk (1912-2001), one of California's (and indeed the country's) most colorful and talented 20th century jurists.  When I teach torts, I sometimes find myself in disagreement with Mosk's products liability decisions, some of which helped him earn a reputation as the court's most liberal justice.  But his position on racially preferential affirmative action programs is awe inspiring.  Here's what I said in my previous blog entry:

I’ve been working on a short essay this week about UC Regents v. Bakke, 438 U.S. 265 (1978), and that caused me to re-read Justice Stanley Mosk’s extremely eloquent opinion written for the California Supreme Court in that case. Read the whole thing if you get a chance; it is a strongly-worded opinion condemning the UC-Davis Medical School's race-based admissions policy as unconstitutional. Here is a taste:

"To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality."

The litigation went downhill from there. The U.S. Supreme Court, affirmed the California Supreme Court in part and reversed in part in a split (4-1-4) decision that continues to baffle those who have tried try to follow its logic. The three opinions issued in connection with that decision all lack the clarity of vision so palpable in the Mosk opinion. No matter what side of the issue you’re on, the opinions are a confusing mess.

Mosk was considered one of the most liberal judges on any state supreme court in the country at the time. And his credentials as a civil rights activist were impeccable. In his personal life, he had quit fraternal organizations like the Elks and the Eagles in protest over their refusal to admit blacks as members. As Attorney General of California, he had banned the Professional Golfers Association, which banned African American players, from using state golf courses. As a judge, he had outlawed restrictive racial covenants.

Mosk surely knew that he would face a lot of angry people on account of his Bakke decision, but I wonder if he was prepared for the onslaught. Hundreds of placard-carrying demonstrators gathered beneath his office window to denounce his decision and demand its reversal. Thousands rallied elsewhere. When visiting local campuses, Mosk would routinely find himself greeted by picketers and hecklers. And when UC-Davis, no doubt in part as a conciliatory gesture, invited Mosk to give the commencement address at the law school in 1978, minority students wrote to him insisting that he decline the honor. When he accepted over their protests, one quarter of the graduating students walked out. But Mosk was undaunted. "Judges in California cannot be intimidated," he said. "Lawsuits are won and lost in courtrooms not on the streets."

Even in death, Mosk was not forgiven for this (and a few other) deviations from liberal orthodoxy. In his obituaries, four years ago, critics explained them away as Mosk’s efforts to bend with the political winds. In fact, Mosk showed backbone rarely found in judges. Whether one agrees or disagrees with his legal opinion in Bakke, it is difficult to deny that it was the product of his convictions.

A follow-up post on Stanley Mosk can be found here.

This evening I've been reading Jerome Karabel's The Chosen:  The Hidden HIstory of Admission and Exclusion at Harvard, Yale and Princeton in preparation for writing a review for Academic Questions. He briefly describes the history of the Bakke case and discusses the swing opinion of U.S. Supreme Court Justice Lewis Powell (1907-1998).  It was Powell's decision that gave a green light to racially discriminatory admissions policies adopted to promote racial diversity.

I already knew that Powell did not have Mosk's history as a champion of civil rights prior to becoming a judge.  Powell's reputation as a hero of affirmative action came only as a result of his opinion in Bakke.  What I didn't realize was that Powell, a kindly Virginia gentlemen by all accounts, had himself been part of the civil rights problem.  Karabel writes that while Powell opposed the strategy of massive resistence to Brown v. Board of Education when he sat on the Richmond School Board, he did precious little to comply with the law (when it was his responsibility to do so).  Karabel wrote:

Always active in civic affairs, Powell served as chairman of the Richmond School Board from 1953 to 1961 and as a member of the Virginia Board of Education from 1961 to 1969.  His own carefully worded assessment of his service in these position was that it had taken place when the pace of desegregation had been "necessarily more measured than civil rights leaders would have liked."  But this was a rather generous interpretation of his role in the years after the Brown decision, for when Powell stepped down as chairman of the Richmond School Board in 1961, after eight years of service, only 2 of the city's 23,000 black children attended school with white children.  And during his two terms with the state Board of Education, Powell's sympathetic but fair-minded biographer reports that "he never did any more than was necessary to facilitate desegregation ...[and] never spoke out against foot dragging and gradualism."

It's a crazy old world.  Almost 30 years later, the timid Powell is an icon of the civil rights establishment and Mosk, a man who took real risks throughout his life to stand up consistently for color blindness, is a villian who bent with the wind.  Go figure.

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Gail Heriot


Why spoil such an interesting post with a peremptory, rude instruction appended at the end? Sod off.

Posted by: dearieme | Oct 27, 2006 2:32:27 AM