Jack Balkin, a liberal professor of constitutional law at Yale, and Robert Bork, the rejected Supreme Court nominee and scourge of the cultural left, agree on pretty much nothing, legally speaking. Balkin defends Roe v. Wade and favors gay marriage; Bork calls Roe a "constitutional atrocity" and helped craft the proposed constitutional amendment banning gay unions. The one thing they do agree on: the correctness and extraordinary significance of Brown v. Board of Education.
Bork has called it "the greatest case of the 20th century." Balkin goes even further: " Brown is like Shakespeare or Homer or Milton," he says. "It's canonical: It's at the foundation of how people think about constitutional law."
Brown is the rare Supreme Court decision so potent that it nearly transcends criticism. Disagree with Miranda v. Arizona ("You have the right to remain silent") and you spice up your law-school-class discussion. Propose that "separate but equal" is consistent with the Constitution, however, and you brand yourself a racist, or un-American, or both.
That was then. Of course, that was hardly the case in the 1950s. Brown's shifting reputation as a piece of legal handiwork makes for a fascinating study in the intersection between law and social movements. Think your way back to 1954, and it quickly becomes apparent the choice facing the nine justices was hardly obvious. They knew that when the 14th Amendment, which grants all American citizens "equal protection of the laws," was passed in 1868, northern schools were segregated (the South had few public schools then). Moreover, they knew that a succession of Supreme Courts had upheld the "separate but equal" doctrine laid down in the 1896 case Plessy v. Ferguson. Who were these nine to overturn precedent, the will of elected lawmakers, and the apparent values of the 14th Amendment's authors?
Clearly, they were "tyrants," screamed southern lawmakers. But some constitutional experts had doubts, too. In a famous 1959 Harvard Law Review article, Herbert Wechsler, a giant on the Columbia Law faculty, said he saw no "neutral principle" that would justify ruling segregation unconstitutional. On the one hand, Wechsler said in essence, whites did not want to associate with blacks. On the other, blacks did want to associate with whites. The court, he concluded, ought to stay out of such disagreements between citizens.
The tremendous moral force of the Brown decision soon annihilated such academic quibbles. "Everyone knew it was right on moral grounds," says Ronald Dworkin, a professor of law at New York University and University College, London, "and so clearly right on moral grounds that you couldn't sustain a picture of constitutional law that saw it as wrong."
There are actually two Browns: the original opinion declaring segregation unconstitutional, from 1954, and the court's remedy, issued the next year. The second opinion included the notorious comment that desegregation should proceed "with all deliberate speed," a phrase lamented as often as the rest of Brown has been lauded. When it came time to implement Brown, the court flinched--and southerners knew it. (Another weakness is a footnote citing research on the dire psychological effects of segregation. Some of those studies have since been debunked, and, anyway, it's not clear that justices should be basing decisions on what they read in academic journals.)