Bench Memos

Law & the Courts

Brown v. Board ‘Is a Hopeless Mess Doctrinally’

That blunt assessment of the iconic ruling in Brown v. Board of Education is provided not by the next Trump judicial nominee to be excoriated by the Left but by the distinguished liberal legal scholar Sandy Levinson.

Levinson observes that Brown could be quoted “for the proposition that only certain forms of intentional race-based segregation are illegitimate or for the proposition that all ‘separate schools are inherently unequal.’” He continues:

There is, to put it mildly, a huge difference between these two propositions, and the Court provides no clue as to which is “correct.”   Indeed, a full half-century later, we would be treated to the unedifying shouting match between Roberts and Breyer in Parents Involved where each claimed to be the true devotee of Brown while offering extraordinarily different readings of that case.

Levinson goes even further to raise, with apparent approval, “the possibility that at 65 Brown deserves to be retired, with a generous pension but otherwise basically ignored.”

Relatedly: In this NRO essay of mine from years ago, I pointed out that the “compelling moral case for the result in Brown has muffled contemporary discussion of the serious defects in its methodology.” Specifically, I argued that “although Brown‘s bottom-line result is both morally sound and legally right, the methodology of Brown illustrates—and has spawned—two characteristic operational defects in non-originalist decision-making”: namely, judicial reasoning that “often is indeterminate and unworthy of being taken seriously as law,” and the Supreme Court’s “disinclination to reexamine its own dubious precedents on the meaning of the Constitution.” (Contrary to the common misunderstanding, the Court in Brown did not purport to overrule Plessy v. Ferguson; rather, it limited itself to the question “whether Plessy v. Ferguson should be held inapplicable to public education.”)

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