On the anniversary of Brown v. Board of Education, scholars and policymakers will discuss and debate whether the court’s decision to eliminate segregation in schools has lived up to its potential and whether the changes have been sweeping enough. But apart from the practical impact, it was also a major development in the way the justices evaluated cases. There’s no question that this unanimous opinion was that of an activist court—a court willing to look beyond just what Congress, state law, or even its own precedent mandated, a court that ruled quite simply that in the field of public education, the doctrine of separate but equal has no place and that black children in segregated schools were being “deprived under equal protection of the laws guaranteed by the 14th Amendment.” Even the most conservative of legal thinkers now look back at that opinion favorably. So today it makes me cringe when I hear some refer to activist judges as if it is the ultimate insult or a suggestion that they’ve been derelict in their duties.
Without activist judges, some states might still have segregated schools or still make it illegal for interracial couples to marry. And reading through some of the Brown justices’ notes, it is clear that they had the same sort of reservations as justices today about overstepping their authority. One was concerned that Congress had not passed a law desegregating schools. Another wrote that states should be left to work out the problem for themselves. Two others were troubled about overturning long-time precedent, which accepted the idea that schools could be separate but equal.
But in the end, they all agreed that the segregation of schools was simply unfair and must be ended. I don’t mean to suggest that judges should feel free to regularly inject their personal views of policy into what’s supposed to be legal analysis. In fact, my regular viewers know I’ve criticized judges for doing just that. But 50 years after one of the most activist and enlightened opinions in our history, it’s important to remember that when it comes to fundamental rights, sometime only an “activist court” will make the tough and brave decisions that politicians can’t or won’t.