WASHINGTON — In a Supreme Court ruling that eliminated the constitutional right to abortion, judges engaged in extensive debate about the meaning and legacy of Brown v. the Board of Education. A 1954 ruling said the Constitution did not allow segregation in public schools. .
The relationship between abortion and education may seem elusive. But the judge cited Brown twenty-three times and used it to point out the way precedents, public opinion, and above all, how the Constitution was interpreted.
Justice Samuel A. Alito, Jr., writing on behalf of a majority of five members of Congress, cited Brown as an example of a decision that appropriately overturned precedent. Plessey v. Ferguson of 1896, which stated that “separate but equal” establishments were constitutional, was so plainly and so badly wrong that Brown was right to overturn it. he writes
Judge Alito also wrote true to Roe v. Wade, 1973, which guaranteed the constitutional right to abortion, and Planned Parenthood v. Casey, 1992, which reaffirmed Roe’s core argument. rice field.
Chief Justice John G. Roberts Jr. found no parallels in a concurring opinion that would not have gone as far as overturning Law’s decision. “Brown’s opinion was unanimous, 11 pages long. This is neither.
In fact, the three dissenting judges wrote in their joint opinion that the current court’s “majority” overturned two abortion precedents.
“There is only one reason the majority dismissed Law and Casey: they have always looked down on them, and now they have the vote to overthrow them.”
Justice Alito also supported the second point, citing Brown, who was very unpopular in the South. “We cannot allow our decisions to be influenced,” he wrote.
But Brown’s most interesting mention came almost in passing in the dissent. It said the court ruled that if Brown had used “majority methods of constitutional construction” he might not have done so.
The method was originalism, using the tools of historians to try to identify the original meaning of constitutional provisions.
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But Brown has always been a problem for originalists. The importance of historical evidence is that from 1866 to 1868 he proposed a Fourteenth Amendment that guaranteed “equal protection of the laws,” and those who ratified it understood that it would abolish segregated schools. it wasn’t.
But generally, the Brown trial is considered a moral triumph and the Supreme Court’s finest hour. Any theory of constitutional interpretation that fails to explain Brown is dubious, if not unreliable.
Originalists hate talking about Brown. Judge Antonin Scalia, an avid originalist, was inclined to say, “You’re waving Brown’s bloody shirt again, aren’t you?” when asked about the case.
Judge Alito’s criticism of Roe was certainly original. In ruling that there is no constitutional right to abortion, he focused on the text of the Constitution and “how states regulated abortion when the 14th Amendment was adopted.”
His approach reflects contemporary criticism of Brown for original reasons.
“The Constitution makes no mention of abortion,” said Alito. His 1956 statement by Southern legislators against Brown in what became known as the Southern Manifesto made a similar point: The same is true for the 14th Amendment and other amendments. “
In his abortion decision, Judge Alito said, “By the time the 14th Amendment is adopted, three-quarters of the states have criminalized abortion at any stage of pregnancy, and the rest will soon follow suit. ” writes.
The Southern Manifesto repeated that point again.
“By the time the amendment was adopted in 1868, 37 states had joined,” states the manifesto. “All of the 26 states with substantial racial disparities among their citizens have either approved the operation of segregated schools that already exist or have subsequently done so by action of the same legislative bodies taking into account the Fourteenth Amendment. I set up a school.”
Brown’s unanimous opinion did not really contest the idea that the tools of originalism could not be used to justify. No,’ he said.
Before Scalia died in 2016, he and Justice Breyer, who retired in June, occasionally appeared in public to discuss constitutional interpretation. Justice Breyer liked to prick Justice Scalia about Brown.
“Where are you in school desegregation?” Judge Breyer asked a colleague while attending the University of Arizona in 2009. “Obviously when they passed the 14th Amendment they said people should be treated equally.
Justice Scalia did not give a direct answer. In other settings he supported the decision. Margaret Talbot of The New Yorker wrote in her 2005 profile, “Scalia says she would have given Brown the majority vote, but it’s hard to justify that creatively.”
A recent abortion ruling, Dobbs v. Jackson, said a majority in the Women’s Health Organization said both Pressy and Law survived about half a century before being overturned.
Three opponents responded that had Brown’s court been devoted to originality, Plessy might still be on the books.
“If the Brown Court had used the constitutional majority law, it might not have overturned Plessy five, fifty, or five hundred years later,” wrote the dissenter.