The Moral Development of Jurisprudence

Of course, there wasn't any actual intellectual support for the proposition that a developmental process within the individual repeats the historical development of social institutions. Ontogeny recapitulates phylogeny? Biological stages of development are at least objectively "there," while the historical periodization of any "Kohlbergian" view of social development poses no end of insoluble problems.

But of all this would be exactly the same argument if it called "Stage 5" "blue" and "Stage 6" "yellow." The labels applied to the positions don't explain anything, they merely editorialize. The account also overlooks the importance of the descriptive character of the Eighth Amendment arguments. Brennan and Marshall cannot rest on a timeless certainty that the death penalty is wrong, as it is obvious that no such consensus has existed in the past. They must rest on an "evolving standard of decency" which changes what constitutes "cruel and unusual punishment," and for this purpose Marshall concludes that the American people have decided that capital punishment is intolerable. Faced in Gregg with the plain fact that large parts of the United States, on the contrary, were enthusiastic enough about capital punishment to reenact new statutes after Furman, Marshall is compelled to retreat to the position that the American people wouldn't want to tolerate capital punishment if they really knew what it was. Is that stage 5.5 thinking, or is it perhaps stage 4.78 thinking? Or maybe the thinking of judges is slightly more complicated than the thinking of children?

I don't see where in the decision in Brown this is made an independent basis for constitutional scrutiny, and I don't see how it could be. At a minimum, you should show how this is anchored in the Court's language.

The first theory reflects Stage 6 morality because it inherently rejects race-based policies when they are rooted in ideas of racial inferiority. The second theory reflects Stage 5 morality because it appeals to the idea of education as a right and seeks equality because of its beneficial effects for the community.

That's not a constitutional theory because there isn't any federal right to an education for the Court to enforce, and equality is required not on utilitarian grounds, but as a direct command of Section 1 of the Fourteenth Amendment (modulo the fancy footwork needed to find equal protection in the Fifth Amendment so as to decide Bolling v. Sharpe the same way).

The Court used both theories in the school desegregation cases following Brown. The first theory resulted in decisions centering around the distinction between de jure and de facto segregation, relying on a racist intent to differentiate between acceptable and unacceptable instances of segregation (Keyes). The second theory led to decisions that gave deference to school districts to enact policies that would improve access to education for black students, even if relying on some race-based classification (Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971)).

No, the question of appropriate remediation is a separate question, with an entirely separate doctrinal history. You don't say anything about Brown II, giving the impression that the cases concerned with remedy must somehow derive their law from the language of Brown I. What the Chancellor may do to remedy a situation in which equal protection has been so long denied as to establish basic social institutions on an unequal basis is an immense topic, which, not surprisingly, was relentlessly politicized in the period from the first term of Dwight Eisenhower to the second term of Richard Nixon. The Supreme Court jurisprudence is a small part of the dialogue we might have had.

Two cases 35 years apart are naturally not the products of the same thing, let alone of too close an adherence to the constitutional theory of not the result of Brown I, however. Millikin v. Bradley asks how remedies may be arranged across governmental boundaries, which is an essentially political rather than legal question, valuable because—however insubstantial the issues concerning the remedial jurisdiction of the Chancellor—the real political consequences of such remedial orders were to energize a backlash. There, and in Washington v. Davis, a Supreme Court with four Nixon appointees on it followed the election returns. Parents Involved v. Seattle School Board, after another generation, raises a 21st century question: does Equal Protection require a school board that has never been shown to have engaged in purposeful governmental discrimination to meet the compelling-interest test for racially-conscious school assignments intended to maintain or achieve racial diversity in the schools?

This is not a Brown problem, not only because there is no de jure segregation in Seattle School Board 1's past. It is also not a Brown problem because it transpires in a multi-racial society, in which the dynamics of non-racialism also involve the equal protection interests of people whose concerns the Fourteenth Amendment was not historically bound to, as it was to the interests of the freedmen, but whose rights it must just a forcefully protect.

Having said all of which, it would be also correct to say, as Justice Stevens essentially did, that this is a not-Brown problem being solved by a Court which wants to use it to dismantle Brown. Employing four and a half votes for the very most that less than five can be made to do, the Chief Justice effectively declares the period of remediation for white supremacy in the schools over, and holds that all attempts to establish diversity as a bulwark against future discrimination must show either past governmental discrimination or some compelling interest other than preventing future discrimination (a holding from which Justice Kennedy awkwardly withholds the fifth vote, declaring—as Justice O'Connor was wont to do when the going got tough—that everything must be narrowly tailored to meet with his approval on eventual Supreme Court review).

You can show, if you think about it, how this outcome provides the Republican Party with a version of the advantage it derived in the 20th century from Milliken v. Bradley. That would require recognizing the role of class in the politics of the multi-racial US, a country in its last half-century of white majority, with an aristocracy more dominant in its ownership than at any time in the history of the republic.

Conclusion

As I've suggested above, I think Kohlberg is a nuisance rather than a help. Understanding the Supreme Court in its actual context is a more useful exercise than trying to understand the Supreme Court in the fanciful context of what it would be like if it were an eight-year-old, instead of the powerful political institution that it is. The Court is not getting the wrong results because it has the wrong theory: it is a realist institution choosing the theory that produces the desired consequences.