Richard Fallon on the status of Brown v. Board of Education
I took constitutional law from Richard Fallon in the mid-1990s, and he subsequently became my favorite legal theorist. I am currently in the middle of his latest – and unfortunately last – book: The Changing Constitution: Constitutional Law in the Trump-Era Supreme Court. Fallon does a masterful job situating current doctrinal developments at the Court in political and historical context. Here is a brief excerpt from his discussion of equal protection cases (p. 174):
When social and doctrinal developments from Reconstruction through Brown and Loving are viewed in hindsight, it is remarkable how fast a national consensus emerged that publicly enforced race discrimination, which had been a feature of American life from the beginning, was morally and constitutionally intolerable. In the 1950s, the correctness of Brown v. Board of Education was much debated. By the 1970s, Brown enjoyed almost unanimous support in the legal community. Today, anyone who maintained that the case was wrongly decided would be disqualified from service on the Supreme Court. The president would not nominate, and the Senate would not confirm, a person who took that view.
If we pause to probe why Brown enjoys such iconic status, the answer, as we have seen, has nothing to do with fidelity to the original understanding of the constitutional language. It has much more to do with Brown’s capacity to symbolize what nearly all now view with pride as a towering moral and political achievement in our national history: the rejection of state-sponsored race-based segregation as an accepted feature of American life in many institutions throughout the country.
Throughout the book, Fallon describes, in his careful and often understated way, how the Court is influenced by politics and personnel as well as legal considerations, and he shows the relatively minor role played by originalism in many key decisions such as Brown. I wish I shared his optimism that our current Congress would refuse to confirm any nominee who rejected the reasoning in that case. And as Fallon points out, the current Court has substantially cut back on the original understanding of Brown.
No problem for nominees to lie their way onto the court: just claim Brown is “settled law” sort of like Roe v.Wade was.
The rejection of state-sponsored race-based segregation seems to be holding up well. It would be interesting to read about the understanding issue of the last sentence. My memory is that the demise of attempts at multi-district integration via court ordered busing plans ran into legal problems earlier than anything I think can be reasonably described as “the current Court”. Likewise cases that involved Louisville and Seattle did not involve state-sponsored race-based segregation. They involved schools and race, but they were not situations that were much like those ruled illegal under Brown. Likewise affirmative action cases are not similar to Brown, even though they generally involve education and race.