Abstract

It Could Have Gone the Other Way

The author claims the U.S. Supreme Court ruling against school segregation in the Brown v. Board of Education case could easily have gone the other way. In the fifty years since it was decided, Brown v. Board of Education has become a legal icon. The rightness of this famous decision invalidating racial segregation in public schools is no longer open to debate.Conservative legal commentators and prospective judicial nominees still criticize many landmark decisions of the Warren Court, but not Brown. No constitutional theory or theorist failing to support the result in Brown will be taken seriously today. Such was not always the case. A Gallup poll taken the summer after Brown revealed that nearly half of all Americans opposed the decision. Perhaps most surprisingly, the Justices who decided the case had grave doubts themselves whether invalidating school segregation was legally justified. The sources of constitutional interpretation to which they ordinarily looked for guidance--text, original understanding, precedent and custom--indicated that school segregation was permissible. By contrast, most of the Justices privately condemned segregation. Their quandary was how to reconcile their legal and moral views.