...These are two of the most momentous constitutional reversals in our nation’s history. Brown v. Board of Education rightly mortally wounded Plessy v. Ferguson, and Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade. But Brown and Dobbs represent contrasting visions of the role of the judiciary in shaping American society....
The result in Brown was correct, and eminently defensible on solid constitutional grounds. But there are problems with the Brown Court’s methodology. The Court could have—and should have—reversed Plessy on the ground that it was egregiously wrong the day it was decided. The separation of the races through law was an intentional act of racial discrimination in violation of the Fourteenth Amendment’s Equal Protection clause....
In Brown, the Court addressed the question, “does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?” Without a hint of constitutional or legal analysis, the Court answered in the affirmative, based upon “modern [psychological] authority.”...
The unanimous opinion, authored by Chief Justice Warren, ushered in an era where the Court was free to impose its own vision of the good on American society, draping the Constitution loosely over its opinions to provide an air of legitimacy....
I feared the Dobbs Court might follow the Brown Court’s methodology with a weakly reasoned explanation for jettisoning Roe. Brown had said, “whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding [of psychological harm] is amply supported by modern authority.” The Dobbs Court could have taken a similar approach....
Thankfully, the Court in Dobbs did not follow this path, which would have given Roe a façade of constitutional legitimacy. Instead, the Court demolished Roe entirely, concluding that “Roe was egregiously wrong from the start.” The Dobbs Court then systematically dismantled Roe’s “exceptionally weak” reasoning. The opinion is a textbook case of fraternal correction across the generations....
The problem with the Brown Court is that it lacked the courage to fully repudiate Plessy. It left open the possibility that in some circumstances segregation might be constitutional, when really what was needed was a firm declaration that “segregation is never permitted under the Constitution, and any opinion saying it can be permitted is wrong.” Instead, Brown reached the right result, but it did so by rooting the decision in the Court’s vision of the good, not in the Constitution. This gave tacit permission to future Courts, including the Roe Court, to untether itself from the Constitution and to expand its role as final arbiter of the good in American life and culture. Thankfully, the Dobbs Court has rejected that role for itself, returning to the people the task of governing ourselves according to the rulebook of our Constitution.
The Law and Justice Room
Reply With Quote