Liberal Activism In the Courts

Here's a guy who must be taking the loss of Ol' Strom harder than most. Like most conservative columnists, Paul Craig Roberts is railing against the Supreme Court this week. But Paul is railing against the Warren Court.

Yes, Paul believes that most of this country's problems were caused by that unconstitutional liberal power-grab known as Brown v. Board of Education. Paul lets out all that anger he's been holding in for the past forty-nine years.

The substitution of sociology for law is the legacy of the 1954 Brown desegregation decision.

Devoid of any legal argument, the Brown decision rested on sociological testimony about whether black children preferred white to black dolls and on Swedish socialist Gunnar Myrdal's assertion that white Americans are "aversive racists." This meant, Myrdal asserted, that democracy would perpetuate segregation as long as whites comprised a political majority. To end segregation, the Supreme Court would have to usurp the legislative function.

That is precisely what the Court did in 1954. Although liberals cheered the end of "separate but equal," constitutional lawyers were disturbed by the absence of legal reasoning in the Court's ruling. For example, Columbia Law Professor Herbert Wechsler, a consultant to the NAACP in the Brown case, told the Harvard Law School that he was unable to find the constitutional principal [sic] that justified the decision. He recommended that the Brown decision be accepted on faith.

...

Both Brown and Grutter are declared to be "landmark decisions." Yet, both are devoid of legal basis. After a half-century of a civil rights cause driven by the principle that the ends justify the means, we have a legal system that is based in sociological rant.

Now there's some profound legal reasoning. Brown is devoid of legal basis because ... Paul says so. "Separate but equal [sic]" is constitutionally ordained, says he. We are no longer a country of laws, but one where vile Negroes get to sit beside our pure white children in history class, even if we maintain the fiction that segregated schools are equal.

The sad part is that Bill Rehnquist could have written this crap.