Brown v. Board of Education of Topeka and It's Decision
There have been many attempts to look at the decision in Brown v.Board of Education of Topeka and claim it was erroneous in some respect.One of the most often used is the 'social policy' argument. Someconstitutional scholars believe that the Supreme Court went too far in thedecision, far beyond deciding the single issue involved. That issueconcerned the need for an African American little girl to go to a blackschool that required of her a dangerous walk through a rail yard ratherthan a pleasant walk to a closer school that was all white. It is easy to argue that any decision of any reasonably lofty court inthe land makes social policy decisions without benefit of election.Indeed, even lowly courts-city courts in small towns-make social policydecisions by virtue of the need to interpret the law when passing judgmentor imposing sentences. A judge in a small town in New York State, forexample, gives everyone convicted in his court the lightest possiblesentence, 60 days plus two years of parole. Why' Because he knows thecareer criminals will violate their parole, and then it's an automatic fiveyears up the river, no appeal, no questions asked. (Personal knowledge via
But as a judicial restraint advocate, hewanted to end it on a gradual basis. Marshall convinced them that the little girl had not enjoyed equalprotection of the laws. Infact, that is what has, arguably, been done time and time again. Tushnet believes the Court would haveultimately reached a unanimous decision on Brown even with Vinson. (UMKC Web site) Another criticism sometimes employed involved violating the will ofthe majority, which is somewhat similar to the objection based on makingsocial policy. Board of Education hinged on the Court'sinterpretation of the first portion of the Fourteenth Amendment, whichprovided that "No State shall make or enforce any law which shall abridgethe privileges or immunities of citizens of the United States; nor shallany State deprive any person of life, liberty, or property, without dueprocess of law; nor deny to any person within its jurisdiction the equalprotection of the laws. It would be well to remember the history of Kansas; while thebrutality of the Jayhawkers-anti-slavery militia groups in pre-Civil WarKansas-has been well chronicled, the equally brutal activities of theBushwhackers, whose sympathies lay with the South, has been less wellexposed. (Schultz,1998) Some argue that with that case, and subsequent ones hinging directlyor indirectly on it, the Court "launched a significant enterprise inchallenging the political status quo and in seeking to change socialattitudes. (Citron, 2002) While Vinson was Chief Justice,the Court issued decisions about the legality of President Truman's seizureof steel mills during a strike during the Korean War. Board of Education ofTopeka case before the Supreme Court, he had already won 29 of 32 cased hehad argued before the Supreme Court, including a Southern state's"exclusion of African-American voters from primary elections (Smith v. Board of Education of Topeka the mostcontroversial opinion by the Supreme Court in the last 50 years. (Citron, 2002) Perhaps the fact that activist judge Earl Warren had becomeChief Justice simply made it happen faster. Board of Education of Topeka on thegrounds that it made social policy is relatively ludicrous.
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