Scalia thinks it was. Except, he doesn’t. Irresponsible, slapdash journalism notwithstanding, America’s second most conservative — and, arguably, most intelligent — Supreme Court justice stands quite firm in his defense of the case that created the modern civil rights movement and, thereby, modern America. But this vignette in journalistic ethics raises a more interesting question: we all know Brown v. Board, by terminating the practice of racial segregation in schools, was the morally right decision for the Supreme Court to make. But was it legally sound? This question deserves to be asked. After all —
However apparent the injustice of [segregation] may be, we have only to consider whether it is consistent with the constitution of the United States. Plessy v. Ferguson, 163 U.S. 537, 553 (1896) (Harlan, J., dissenting).
Well, let’s see.
Despite the seminal place Brown v. Board has attained in our jurisprudence, it was by no means a slam-dunk decision (don’t let the unanimous opinion convince you otherwise). Seeking to bring to a successful conclusion a fifty-plus year campaign for racial equality, the newly-minted Chief Justice Warren worked long and hard to build a consensus opinion, but the resulting opinion seems to rest more on sociology than true constitutional interpretation. Contrary to popular understanding, Brown v. Board never explicitly rejected the idea that “separate but equal” satisfied equal protection — it simply concluded, after examining extensive expert reports, that separate can never be equal, at least in the context of education:
Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected. We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Brown v. Board of Education, 347 U.S. 483 494 (1954).
That Brown‘s ultimate significance has become, in legal circles as well as public discourse, “segregation is always illegal,” is a happy coincidence, but not, strictly speaking, what the opinion says, and deliberately so. An outright reversal of Plessy would’ve been earth-shattering. Brown‘s half-step is a concession to history: while the framers of the Equal Protection Clause did, in fact, probably intend their text to forbid segregation (a discussion for another day), the practice of segregation grew contemporaneously with the South under Reconstruction, as schools were built and rail lines restored. This organic history makes it very difficult indeed to parse the distinction between the America the Fourteenth Amendment was built to create, and that which it actually did create. Consequentially, an analytical approach built on originalism would be somewhat inadequate to the task, which Warren acknowledges, before changing the question to address whether segregation is fair to modern eyes.
In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. Id. at 493.
So, let’s summarize — “separate” can still be “equal”; but not in the context of education; and, decisions about the meaning of “equality” should be reckoned by modern, rather than 19th century notions of fairness. This is an elegant, beautifully written opinion, and unequivocally right, but there’s a lot to question here, from a conservative perspective. If a liberal justice today leaned on sociology to answer controversial culture war issues, she’d be pilloried; if the same justice argued that “fairness” should be judged by modern values, her name would surely be cursed from here to WorldNetDaily. They may not want to admit it, but from a conservative perspective, there is an argument that Brown was wrongly decided.
Of course, no politician who wants to be taken seriously would ever admit as much, even if they would disagree with Brown‘s reasoning being used today, to decide more present issues in equal protection law. By any reasonable rubric, Brown was rightly decided in 1954, but conservatives are still fighting its major premise, fifty years later. That should say a lot.