The Battle over Brown 's Legitimacy

Abstract

Constitutional scholars have given few Supreme Court rulings the attention that they have lavished upon the celebrated decision in Brown v. Board of Education. Yet the literature of public law is surprisingly unedifying with regard to the process by which the desegregation decision achieved iconic status in American legal culture. Scholarly inattentiveness to the history of Brown's reputation is startling, given that southern politicians were not the only persons in 1954 to characterize the decision as a manifest instance of judicial legislation. Even persons sympathetic to desegregation conceded that the Justices had circumvented traditional legal constraints in rendering Brown. In the years immediately following the ruling, some scholars appealed to the notion of a “living Constitution” to defend Brown against charges that it conflicted with the original understanding of the Fourteenth Amendment and with the “separate but equal” doctrine that the Court had established in Plessy v. Ferguson. But critics, some of whom even accepted the concept of the “living Constitution,” also challenged the Court's reading of social fact—that is, its claims regarding the inherent inequality of segregated schools—which supposedly justified judicial recognition of a right that conflicted with precedent and with the intentions of the Framers of the Equal Protection Clause.

Brown v. Board of Education and the Symbolic Uses of Supreme Court Decisions in American Politics

“…Scholarly recasting of the ruling as an attack upon an institution that could only be characterized as a manifestation of white supremacy proved an effective response to the objections of Brown's more legalistic critics. 5 The cessation of battles over the legitimacy of Brown in no way implied the discontinuance of scholarly conflicts over the decision. Indeed, the iconic status that the The Warren Court even sustained severe criticism in the area in which it achieved its greatest constitutional victory -equal protection and race.…”