In 1954, the Supreme Court upended 58 years of constitutionally protected segregation, concluding that “in the field of public education, the doctrine of ‘separate but equal’ has no place.” And on June 24, 2022, the Court upended 49 years of constitutionally protected access to abortion, concluding that “the Constitution does not confer a right to abortion.”
These are two of the most momentous constitutional reversals in our nation’s history. Brown v. Board of Education rightly mortally wounded Plessy v. Ferguson, and Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade. But Brown and Dobbs represent contrasting visions of the role of the judiciary in shaping American society. The Brown Court placed itself in the central role of creating a just society. The Dobbs Court cast itself in the supporting role of referee applying the standards set down by the Constitution, while locating the task of forming a just society in state legislatures on issues the Constitution is silent about.
The result in Brown was correct, and eminently defensible on solid constitutional grounds. But there are problems with the Brown Court’s methodology. The Court could have—and should have—reversed Plessy on the ground that it was egregiously wrong the day it was decided. The separation of the races through law was an intentional act of racial discrimination in violation of the Fourteenth Amendment’s Equal Protection clause. Re-imagining the Court’s reasoning, Prof. Wechsler, writing in the Harvard Law Review in the late 1950s, said: “it seems to me, [the Court] must have rested on the view that racial segregation is, in principle, a denial of equality to the minority against whom it is directed.” Unfortunately, that was not the reasoning employed by the Brown Court, and therein lies the problem.
In Brown, the Court addressed the question, “does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?” Without a hint of constitutional or legal analysis, the Court answered in the affirmative, based upon “modern [psychological] authority.” The Court reasoned that “segregation of white and colored children in public schools has a detrimental effect upon the colored children . . . [and] has a tendency to [retard] the educational and mental development of negro children.” Rather than rooting the opinion firmly in the Constitution and declaring that “segregation is never permitted under the Constitution,” the Brown Court rooted it in the psychological consensus of the day.
The unanimous opinion, authored by Chief Justice Warren, ushered in an era where the Court was free to impose its own vision of the good on American society, draping the Constitution loosely over its opinions to provide an air of legitimacy. I suspect that Warren would have lost the unanimous support of the Court for his opinion had he rooted it firmly in the Constitution rather than psychological consensus. It was one thing to paternalistically conclude that desegregation is necessary because it causes psychological harm to the “other.” It would have been quite another thing to look in the mirror and admit that members of his own race invented segregation for morally and—more importantly for the Court—constitutionally nefarious reasons.
I feared the Dobbs Court might follow the Brown Court’s methodology with a weakly reasoned explanation for jettisoning Roe. Brown had said, “whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding [of psychological harm] is amply supported by modern authority.” The Dobbs Court could have taken a similar approach. Roe had concluded, “we need not resolve the difficult question of when life begins.” The Dobbs Court could have responded with: “Whatever may have been the extent of biological knowledge of what the Roe Court termed ‘potential life,’ modern technology confirms that it is undeniably ‘human life,’ and therefore, we return the issue to the states to determine what protections to give that human life.”
Thankfully, the Court in Dobbs did not follow this path, which would have given Roe a façade of constitutional legitimacy. Instead, the Court demolished Roe entirely, concluding that “Roe was egregiously wrong from the start.” The Dobbs Court then systematically dismantled Roe’s “exceptionally weak” reasoning. The opinion is a textbook case of fraternal correction across the generations. It is a devastating critique of the seven men who in 1973 thought they were solving the matter of abortion for the nation before the issue had a chance to embroil us in controversy, much like the justices in 1857 who in Dred Scott v. Sandford thought they would head off a Civil War by resolving the slavery question.
“Roe . . . was remarkably loose in its treatment of the constitutional text,” the Dobbs majority opinion states. “It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.” The opinion continues, “Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.” It then quotes Roe: “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
The Court’s reasoning in Roe was so sloppy that it led politically pro-choice Prof. John Hart Ely to conclude that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.”
This brings us back to the contrasting visions of the judiciary in Brown and Dobbs. The problem with the Brown Court is that it lacked the courage to fully repudiate Plessy. It left open the possibility that in some circumstances segregation might be constitutional, when really what was needed was a firm declaration that “segregation is never permitted under the Constitution, and any opinion saying it can be permitted is wrong.” Instead, Brown reached the right result, but it did so by rooting the decision in the Court’s vision of the good, not in the Constitution. This gave tacit permission to future Courts, including the Roe Court, to untether itself from the Constitution and to expand its role as final arbiter of the good in American life and culture. Thankfully, the Dobbs Court has rejected that role for itself, returning to the people the task of governing ourselves according to the rulebook of our Constitution.
Michael A. Scaperlanda is emeritus professor of law at the University of Oklahoma College of Law.
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