the values of our Founding Fathers arernbeing eroded through processes overrnwliicli there are scarceh’ am democraticrncontrols.rnhi detailing this abandonment, thernauthors rightly stress the ccntrality ofrn”equalit’ before the law” and thern”democratic ideal” to the liberal tradition.rnWith the emergence of “equalityrnbefore the law,” the individual was liberatedrnfrom the constraints of “birth, privilege,rnand class” that determined hisrnplace and status in the feudal order. Forrnits part, the “democratic ideal” relies onrnand stri’cs to cultivate the common valuesrnthat allow for ciil discourse, the existencernof “goodwill” among citizens thatrnallows for resolution of differences withoutrnbitterness, hostility, or the need forrngovernment coercion, and, inter alia, thernacceptance of the majority rule principlernfor making decisions after due debaternand deliberation.rnThese traditional values, the authorsrnmaintain, ha’e been ravaged in the civilrnrights “crusade” that started in 1954 withrnthe Supreme Court’s decision in Brownrny. Board of Education. Gone now isrn”cqualit before the law.” hi its place wernhac new categories of privilege, “race,rngeneral, and handicapped status,” as in-rnidious as those found in feudal times.rnThe “democratic ideal” has suffered perhapsrnirremediable damage. Our civilrnrights policies clearh did not result fromrnthe consensual processes pro ided for byrnour Constitution. Contrary to the basicrntenets of traditional liberalism, the authorsrnassert, we find that government toda’rnis pitted against society in the area ofrncivil rights on the “premise” that therernare “hegemonic discriminatory structuresrnin law and employment that mustrnbe broken up by government coercion.”rnNeedless to sav, given this state of affairs,rn”goodwill” has long since dissipated inrnlarge sectors of socictv.rnThe authors’ claim that the Court’srnBrown decision was the immediate causernfor the depreciation of these values isrnbound to arouse controversy. But theirrnargument is compelling. “The most importantrnresult of Broirn,” thev write, “wasrnnot the desegregation but the rise ofrnkritarchv; the rule of judges. From PrincernEdward Countv to Yonkers to KansasrnCit, cities, counties, and states have lostrntheir sovereignty to federal judges whornoverturn democratic outcomes andrnusurp the power of the purse.” “Brown,”rnthey continue, “has led a generation ofrnjudges to believe that they arc the ultimaternpower, because the Constitutionrnhas no meaning other than their subjeetix’ernfeelings about social policy.”rnThe signihcance of this position withrnrespect to the Brown decision should notrnbe lost on conservative critics of judicialrnactivism who, over the vcars, have hadrndifficulties dealing with this particularrnease. Briefly put, liberal defenders of judicialrnactivism use the Brown decisionrnnot only to take the high moral ground,rnbut to point out that the Court must onrnoccasion assume wide-ranging powers tornpromote “justice,” “human dignity,” andrnthe like. Moreover, these liberals havernmanaged to confound many conservativerncritics of an activist judiciary byrnsimply pointing to Brown and askingrnwhether the conservatives would haverndecided the case otherwise. A standardrnconservative response runs that the holdingrnagainst segregation is correct, but thernrationale used h the Court in support ofrnits decision, relying primarily on sociologicalrnand psychological findings, is unsatisfactoryrnbecause the decision couldrnhae been based on the “equal protection”rnclause of the Htli Amendment.rnYet this response has never been satisfactory:rnto establish a link between the intentionsrnof drafters or ratifiers of the 14thrnAmendment and the Court’s ruling inrnBrown calls for an ingenuity that wouldrndo Justice Brennan proud. And, clearly,rnan such linkage would only legitimizernfurther judicial circumventions of therndemocratic processes.rnOne of the more important messagesrnof this book, then, is that whatever goodrnresulted from the Brown decision (and itrnis certainly debatable whether the decisionrnimproved or worsened race relations)rnis far outweighed b the costs tornconstitutionalism and deliberatie selfgovernment.rnTo say the least, the line ofrnargument employed by Roberts andrnStratton removes the Brown “encumbrance”rnthat has served to hamper conservativerncritics of kritarchy. Equallyrnsignihcant, pointing to the logical consequencesrnof Brown serves to deprive judicialrnactivists of the moral high ground.rnThey nioe to an even higher leel ofrnanalysis by stressing that the Brown decisionrncannot be understood in isolationrnfrom its ideological moorings. Its origins,rnthey demonstrate, are to be found in thernviews advanced by the Swedish socialistrnGunnar Myrdal (1898-1987), long anrnidol of the American liberal community.rnCnc theme of Myrdal’s w idely heraldedrnand enormously influential work. AnrnAmerican Dilemma (1944), most relevantrnto Brown was that “American racistrnimpulses were so strong . . . segregationrncould not be overturned through therndemocratic process.” He concluded thatrnAmerica was “caught in a dilemma betweenrnits creed of equality and the realityrnof segregation.” His elitism, sense ofrnmoral superiority, and basic distrust ofrndemocracy, as Roberts and Strattonrnshow, compelled Mvrdal to concludernthat the integration of American societrncould only come about through the effortsrnof an educated elite, not throughrnthe democratic processes provided for inrnthe Constitution. He eventually came tornhold that integration could be bestrnacliieed through the Supreme Courtrnacting in the “spirit of the ReconstructionrnAmendments.”rnMyrdal’s message was not lost on thernNAACP legal di ision that devised arnstrategy to downplay the ccntrality ofrnoriginal intent and precedent in legalrninterpretation while extolling the virtuesrnof “legal realism,” with emphasis onrnthe need for a sociological approachrnto jurisprudence. More importantly,rnMyrdal’s teachings apparentl}’ had a profoundrnimpact on Justice Felix Frankfurter,rnwho went to great lengths tornsecure a victor for the N A A C P andrnThurgood Marshall in the Brown ease.rnNot only did he maneuver to secure arn”two-car delay aud subsequent rehearingrnof the ease to overcome Marshall’srninitial failure before the Court in 1952,”rnduring this delay “he conspired with thernSolicitor General’s office to shape thernJustice Department’s briefs and oral argumentrnin a manner designed to sway hisrncolleagues on the Court.” In these efforts,rnFrankfurter worked closely withrnPhilip Elmaii, one of his former clerks,rnwho served on the Solicitor General’srnstaff and “handled all civil rights casesrnbefore the Supreme Court in which thernUnited States was inolved as either arnpartv or amicus curiae.” Thus, the authorsrnconclude, “the Brown decision wasrnwon not only at the expense of therndemocratic process, but also at the expensernof judicial impartialit.”rnFrankfurter’s violation of judicialrnethics, cleariy ital to the evolution of thernpresent indefensible civil rights policies,rnis significant for another reason. It revealsrnthe power of ideology cloaked inrnrighteousness that presumes to knowrnwhat direction society should take; anrnideology that should not be underestimatedrnwith regard to either its strengthrnFEBRUARY 1996/35rnrnrn