Brown v. Board of Education, school desegregation
This essay examines the history of Brown I, Brown II, and Bolling in the Supreme Court of the United States. Enduring precedents, the analysis suggests, go through three stages. In the first stage, they fight for survival. This describes Brown during the first decade after that decision was handed down. No Supreme Court Justice asserted, “Brown should be overruled,” but many citations to Brown came in the context of political efforts to reverse or marginalize that decision. In the second stage, precedents fight for extension. This describes Brown in the later Warren and Burger years. Civil rights activists insisted that Brown be read broadly. Nixon Justices maintained that Brown authorized only a narrow range of practices. In the third stage, precedents become celebrities. This describes Brown at present. Americans agree that Brown is a landmark decision, agree that decision should be broadly interpreted, but insist that the 1954 ruling provides precedential support for their particular and divergent constitutional visions. Celebrity precedents are not entirely meaningless. The present celebrity status of Brown renders impossible political or legal efforts to return to the status quo before, say, 1966. The crucial point is that Brown has no more capacity to inspire continued progress on American race relationships. Just as Americans are likely to need an entirely new political era to make greater racial progress, so the next successful generation of civil rights advocates will likely march under a different banner.
69 Ohio State Law Journal 939 (2008).