Stuart Chinn (University of Oregon School of Law) has posted The Ideology Behind Brown v. Board of Education: Political Parties and 'Jurisprudential Bundling' (92 DENVER UNIVERSITY LAW REVIEW (2015), Forthcoming) on SSRN. Here is the abstract:
Brown encompassed the start of a transformative period of political change, where the federal judiciary and Congress succeeded in dismantling Jim Crow. Yet, the question of why Brown occurred, when it did, continues to evade a fully satisfying answer despite all of the scholarly commentary devoted to it.
This paper illuminates a set of ideological influences behind the Brown ruling that help explain why the Court took the direction that it did, when the opportunity to do so arose. My claim is that the result in Brown might be partly understood as emanating from certain core elements of American political party ideology. These four elements were: a) the acceptance of a "class political" ideal, or the belief that law and public policies should promote the interests of certain social groups; b) the acceptance of a non-southern orientation toward class politics; c) a commitment to federal governmental statism, or the use of federal governmental power to promote desirable social goals; and d) a principled acceptance of the Supreme Court fulfilling, at times, a "rationalizing" function with respect to established legal doctrines.
These four ideas were core components of New Deal Democratic Party ideology that, I argue, provided a conceptual foundation for both the Brown decision in 1954 and the New Deal Democratic commitment to a form of economic liberalism in the 1930s. These four ideological elements thus allowed New Deal economic liberalism to be "jurisprudentially bundled" with racial liberalism among the Brown Court members.
After laying out these four ideological elements, I discuss several significant implications that stem from illuminating the links between these two historical periods. The most important implication is my proposal of "jurisprudential bundling" as a general theory of judicial behavior and constitutional development. The paper concludes by suggesting, more broadly, how ideas are capable of exerting autonomous influence upon the development of constitutional doctrine.