Department of Management
Date of this Version
Spring 2005
Abstract
This Article explores how Brown v. Board of Education and subsequent Court decisions have impacted the structure of society and racial cultural tradition of America. Brown ranks among the first instances in which a modern American institution actually tackled the cultural basis of racism and discrimination. More directly, during oral arguments to consider the separate but equal doctrine of Plessy v. Ferguson, the Justices seemed to have understood the political and cultural importance of possibly overturning the doctrine that shaped race relations for more than fifty years. The Warren Court’s strategy to treat severally the constitutional pronouncement and the remedial decree suggests its awareness of how the separate but equal doctrine legitimated and gave rise to the institution of racial practices and a way of life that was clearly manifested throughout the American society. These racial practices and patterns were particularly manifested in the South. The separate but equal doctrine did not create the racial culture addressed in Brown and subsequent decisions, but rather represented the constitutionalization of post-Civil War cultural traditions and policy.
Since Brown, considerable attention has been devoted to the capacity and limitations of the Supreme Court and courts in general to bring about social change. In the literature, at least three large camps have emerged. One camp insists that the courts, especially the Supreme Court, have played a significant role in policy-making. Some in this camp argue that the courts’ unique structural location permits them to protect the rights of individuals and groups. The second camp generally has an unfavorable perception of a signal participatory role of the Supreme Court and lower courts in policy-making. Researchers in this camp bring forth powerful arguments that question the capacity and legitimacy of the courts’ involvement and institutional reform. The third camp sees the courts, particularly the Supreme Court, as neither being all powerful, nor entirely impotent. Scholars in this camp assume a middle ground. They argue that under certain circumstances courts can be agents of social change, represent the politically weak, and advance the interest of the excluded and under-represented. The effort of this Article is not to support any of these three camps, but rather to examine the extent to which the Supreme Court and the principles of Brown and subsequent decisions have served as cultural transformers in the area of race.
Comments
Published in Howard Law Journal 47:3 (Spring 2005), pp. 627-678. Copyright 2004 by the Howard University School of Law.