The Dark Side of Brown

This year​ marks the 62nd anniversary of Brown v. Board of Education, in which a unanimous Supreme Court held that “segregation of children in public schools solely on the basis of race” violated the equal protection clause of the 14th Amendment. There is much to celebrate looking back on 1954 from 2016. Primarily, we should be thankful that it is unthinkable today for any level of government to create or maintain separate facilities for Americans based on the color of their skin.

Brown was an extraordinary case that sought to tackle sins of historic proportions. Unfortunately, society has not viewed Brown as exceptional. Instead, the case has inspired lawyers and laypeople, in the words of Harvard’s Mary Ann Glendon, “to imagine that wise judges in black robes could cure social ills.” Professor Glendon notes that perhaps even more dangerously, Brown has motivated “many unwise judges down the line to begin to believe that they had the magic touch.”

Gerald Rosenberg, a professor at the University of Chicago School of Law, rightly complains that post-Brown, various causes were “hijacked by a group of elite, well-educated and comparatively wealthy lawyers who uncritically believed that rights trump politics and that successful arguing before judges is equivalent to building and sustaining political movements.”

Individuals and interest groups no longer seek, in the first instance, to change public policy through the political process, but instead craft litigation strategies. Lawyers picture themselves walking in the shoes of Thurgood Marshall, who argued the case before the Supreme Court and later became a justice, and judges covet the power of the Warren Court as they enter the arena of the courthouse to make policy.

“The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly,” the late Supreme Court Justice Antonin Scalia wrote. “That system is destroyed if the smug assurances of each age are removed from the democratic process.”

Democracy is much like our muscles. If we do not use them and rely on them, the muscles weaken and atrophy. The people lose the ability to debate, think critically, and respect an opponent’s victory wrought by persuasive arguments. When judges make policy, the losing side is embittered because it was not afforded a fair fight in the court of public opinion. Moreover, when unelected officials make public-policy decisions, the people cannot exercise the franchise to express their approbation or disapproval. They become spectators rather than participants in the decision-making.

Same-sex marriage and transgender access are two of the most recent examples of a preference for law courts over legislatures. Despite enjoying much success in various state assemblies, proponents of homosexual marriage resorted to the federal courts and won in Obergefell v. Hodges. Rather than the matter being settled, the Supreme Court’s decree has only served to invigorate the opposition and spawn fights about religious liberty and public accommodations.

Just last month a divided panel of the Fourth Circuit Court of Appeals held that Title IX’s prohibition of discrimination based on sex “requires schools to provide transgender students access to restrooms congruent with their gender identity.” Thus questions about transgender access have already reached one of the highest courts in the land before most ordinary Americans have been given an opportunity to learn what exactly what it means for a person to claim transgender status. Debate was never allowed, and resentment grows because of judicial activism.

While there is much to applaud about Brown, we would be disingenuous to deny that the wrong lessons have been drawn from the decision. Lawyers, judges, and laypeople do not see the landmark case as extraordinary, but rather as a template for bringing about change. Such a conclusion undermines our democratic society and the value of the political branches of government.