WASHINGTON — In the Supreme Court decision that struck down the constitutional right to abortion, the justices engaged in an in-depth debate about the meaning and legacy of Brown v. Board of Education, the 1954 decision which declared that the Constitution does not permit racial segregation in public schools.
The connection between abortion and education may seem elusive. But the justices cited Brown 23 times, using him to comment on precedent, popular opinion and, most tellingly, how to interpret the Constitution.
Judge Samuel A. Alito Jr., writing for the five-member majority, cited Brown as an example of a decision that had properly overturned precedent. Plessy c. Ferguson, the 1896 ruling that “separate but equal” facilities were constitutional, was plainly and patently wrong, he wrote, and so Brown had been right to overturn it.
So it was, wrote Judge Alito, of Roe v. Wade, the 1973 decision that guaranteed a constitutional right to abortion, and Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe’s fundamental position.
Chief Justice John G. Roberts Jr., in a concurring opinion that would have avoided overturning Roe, failed to see the parallel. “The opinion in Brown,” he wrote, “was unanimous and 11 pages long; this one is neither.
Indeed, the three dissenting justices wrote in a joint opinion, “a mere majority” of the current court had overturned the two abortion precedents.
“The Majority overruled Roe and Casey for one and only one reason: because they always despised them, and now they have the votes to overrule them,” wrote judges Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
Judge Alito also cited Brown, who was deeply unpopular in the South, in support of a second point. “We cannot allow our decisions to be affected,” he wrote, “by outside influences such as concern about public reaction to our work.”
But the most intriguing mention of Brown came almost in passing in the dissent. He said the court that decided Brown might not have done so if he had used “the majority method of constitutional construction.”
This method was originalism, which seeks to identify the original meaning of constitutional provisions using the tools of historians.
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But Brown has always been problematic for originalists. The weight of historical evidence is that the people who, from 1866 to 1868, proposed and ratified the 14th Amendment, which guaranteed “the equal protection of the laws”, did not understand themselves to abolish segregated schools.
Yet Brown is widely considered a moral triumph and the Supreme Court’s finest hour. A theory of constitutional interpretation that cannot explain Brown is suspect, if not discredited.
Originalists hate talking about Brown. When Judge Antonin Scalia, an enthusiastic original, was asked about the case, he was inclined to say, “Waving Brown’s bloody shirt again, huh?”
Judge Alito’s review of Roe was certainly steeped in originality. In deciding that there is no constitutional right to abortion, he focused on the words of the Constitution and “how states regulated abortion when the 14th Amendment was passed”.
His approach echoes Brown’s contemporary criticism on originalist grounds.
Justice Alito said “the Constitution makes no mention of abortion.” A 1956 statement by Southern congressmen who opposed Brown, known as the Southern Manifesto, made a similar point: “The original Constitution did not mention education. Neither the 14th Amendment nor any other amendment.
In the abortion ruling, Judge Alito wrote that “by the time the 14th Amendment was passed, three-fourths of the states had made abortion a crime at any stage of pregnancy, and the other states would soon follow”.
The Southern Manifesto again echoed this point.
“When the amendment was passed, in 1868, there were 37 states in the union,” the manifesto says. “Each of the 26 states that had substantial racial differences among their populations either approved the operation of previously existing separate schools or subsequently created such schools by action of the same legislative body that considered the 14th Amendment.”
The unanimous opinion in Brown did not really dispute the idea that it could not be justified by the tools of originalism. “At best”, according to the opinion, the historical evidence was “inconclusive”.
Prior to Justice Scalia’s death in 2016, he and Justice Breyer, who retired in June, occasionally appeared in public to debate constitutional interpretation. Judge Breyer liked to point out Judge Scalia about Brown.
“Where would you be with school desegregation?” Judge Breyer asked his colleague in 2009, during an appearance at the University of Arizona. “It’s certainly clear that at the time they passed the 14th Amendment, which says people should be treated equally, there was school segregation and they had no thought of ending it.”
Judge Scalia did not give a direct answer. In other contexts, he endorsed the decision. “Although Scalia says he would have voted with the majority in Brown,” Margaret Talbot of The New Yorker wrote in a 2005 profile, “it’s hard to see any original vindication in that.”
The majority in the recent abortion decision, Dobbs v. Jackson Women’s Health Organization, noted that Plessy and Roe survived about half a century before being canceled.
The three dissenters responded that Plessy might still be on the books if Brown’s court had committed to originalism.
“If the Brown court had used the majority method of constitutional construction,” the dissenters wrote, “it might never have overthrown Plessy, whether five, 50, or 500 years later.”