Brown v. Board and court worship

Those who believe the Supreme Court should take an “activist” approach often cite Brown v. Board of Education as an example of the Court’s ability to do good where other institutions and the body politic come up short. It’s a decent example, but not sufficient to make the general case.

Keep in mind first that before giving us Brown, the Court gave us Plessy v. Ferguson. It upheld, by a vote of 7-1, the constitutionality of state laws requiring racial segregation in public facilities under the doctrine of “separate but equal.” The decision stood in the way of school desegregation for 58 years (almost the same amount of time that has passed since Brown was decided).

Going 1 for 2 on the constitutionality of school/public facility desegregation does not entitle the Court to special respect for its ability to adjudicate the big societal questions.

We should also remember that the Brown Court was only slightly ahead of our other institutions and the body politic on the issue of school desegregation and the matter of civil rights generally. Within ten years, Congress had passed sweeping civil rights legislation that utterly renounced the concept to separate but equal.

Being fractionally ahead of the times on one (or even more than one) big issue does not justify a hyper-active role for the Supreme Court.

To be fair, the Supreme Court was more than ten years ahead of the South on the issue of school desegregation and on civil rights generally. But because the Court was so far ahead of the South, its decision in Brown did not produce school desegregation for many years.

The Court expedited school desegregation in the South but probably not by more than ten years. That’s a noteworthy accomplishment, but again not sufficient to build a religion of court worship around.