No case is "sacrosanct," not even Brown

Michael Dorf's post on originalism and Brown two weeks ago touched off an interesting series of observations and arguments by Larry Solum, Paul Horwitz, Asher Steinberg, Michael Ramsey, and Richard Re, among others. (See also follow-up posts by Dorf and Solum.) 

Dorf's post was about the need for originalist theory (or any other constitutional theory) not just to accommodate Brown as decided but to explain why Brown was right. In Dorf's words:

[T]here is something wrong with an argument that is sometimes offered to rescue those brands of originalism that produce the "wrong" results in sacrosanct cases like Brown v. Board. The argument asserts that this is not a worry because originalism is compatible with stare decisis, which preserves Brown. As I explained, that argument misconceives the problem, which is that the rightness of Brown and perhaps a few other cases are settled intuitions. It is not sufficient that an originalist judge would not overturn Brown. Any acceptable approach to constitutional interpretation (or construction) must say that Brown was rightly decided.

Underneath this claim about the relationship between constitutional theory and constitutional doctrine is a claim about our constitutional culture: "A relatively small number of constitutional decisions are so central to our constitutional culture that any interpretive methodology that fails to produce them is, ipso facto, improper."

Now as it happens, there are some who are worried that our legal culture's conception of constitutional interpretation is corrupt, perhaps irredeemably so. And at least one of them is on the Supreme Court. Consider for a moment the penultimate paragraph of Justice Alito's dissent in Obergefell v. Hodges: 

Today's decision shows that decades of attempts to restrain this Court's abuse of its authority have failed. A lesson that some will take from today's decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture's conception of constitutional interpretation.

Strong words. But don't let agreement or disagreement with Justice Alito's jurisprudence control your reception of this assessment.

Consider also a quotation from Erwin Chemerinsky's recent book, The Case Against the Supreme Court, that Ronald Collins highlights in his online interview of Chemerinsky: "For too long, we have treated the Court is if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society." 

Just so. 

To use a word like "sacrosanct" to describe a case like Brown is to feed the false conception of the Justices as "high priests of the law." 

Any sober assessment of Brown's contribution to dismantling the deep injustice of racial segregation in public schools cannot begin from the premise that Brown is right. No Supreme Court decision stands on its own bottom.

And it is far from clear that everyone who agrees that Brown is right are agreeing about the same thing, anyway. If people disagree about what they are actually saying is right when they say that "Brown is right," then starting from that premise won't get us too far. At least that's one lesson one might take from the deep judicial disagreement over the meaning of Brown in Parents Involved.

I am not arguing (not here, anyway) that Brown was wrong. I am not even making a claim about what Brown held. I am arguing that it is wrong to approach Brown as "sacrosanct." No Supreme Court decision is. Each decision is a group product of an institution composed of human beings, with all the limitations and promise this recognition carries with it.

How might this perspective help?

For one thing, it can help us see potential flaws in Brown. To pick one whose implications have previously been picked apart by others, Chief Justice Warren's opinion for the Court was unanimous. And that is a problem if the Court itself was not unanimous in its legal judgment.

Projection of false unanimity is a sign of weakness, not strength. It deprives the public on the "losing" side of the knowledge that the best arguments for their view were considered and rejected on the legal merits. It deprives the majority of the opportunity to strengthen its legal case by responding to dissenting legal arguments. And it adds to the perception that Supreme Court decisions are the product of will, not judgment. 

This is not to say that Justices should never acquiesce in opinions with which they do not fully agree. I haven't thought enough about such acquiescence to have a view, and it is common enough in Supreme Court history to avoid out-of-hand dismissal. But identifying potential problems with the projection of false unanimity enables one to better appreciate what is and is not involved in the premise "Brown is right." 

Finally, let us not forget that there were two Supreme Court decisions in Brown. Dorf's posts were about Brown I. The remedial decision a year later in Brown II is far from "sacrosanct." Its use of "all deliberate speed," for example, has been widely criticized. (Interesting aside relevant to Catholic legal theory: The phrase "deliberate speed" apparently originated with Francis Thompson's poem, The Hound of Heaven. See Jim Chen, Poetic Justice, 28 Cardozo L. Rev. 581 (2006), and this earlier MOJ post.)

Even though the Supreme Court decided a Brown I and a Brown II, there was only one Brown. This is the unanimous Brown (in both I and II). And it is the ambiguous Brown.

There is no sacrosanct Brown.