GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2004

Status

Accepted

Abstract

The Supreme Court’s landmark school desegregation decision in Brown v. Board of Education brings us face-to-face with how the world of race, law, caste, and the Supreme Court has changed since that time. Brown has contributed to a view that the courts are perhaps best equipped to handle the difficult issues. Whether that view will prove to be good law or good policy in the long run remains to be seen. Nonetheless, it does reflect the jurisprudential journey that took the Court from its previously indifferent position on minority rights towards that a protector of such rights.

The evolution in the Court's judicial reasoning towards legal realism, as well as the shifting of racial mores in the broader society, played a role in bringing about Brown. It allowed the Court to take into consideration the impact of the legal history of race. In fact, Justice Warren gave short shrift to the framers' intentions under a jurisprudential legal realism, assuming one defines legal realism as a policy-oriented philosophy informed by newer developments of social and behavioral sciences.

While the Brown Court followed and ratified changes in thinking that had already occurred among the nation’s intellectual and cultural pace-setters, the Court’s jurisprudence since that 1954 decision has been far more conservative. Brown made a difference because the advocates that urged desegregation and the Court that accepted their arguments tapped into the changed mood and needs of the nation. In doing so, they proved that they had learned the realist lesson well.

GW Paper Series

GWU Legal Studies Research Paper No. 2012-125, GWU Law School Public Law Research Paper No. 2012-125

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