Posted by
Josh Kon on Tuesday, April 28, 2009 8:42:29 PM
Brown v. Board of Education (1954) was and is possibly the worst decision in all of American history. Not because of its immediate result, which was utterly laudable. The day segregation perished is the same day hate took a powerful blow. Rather, it was Brown's ultimate result which rendered it unforgivable. For the day we tallied the judges' votes, our votes, and our democracy, took a nearly fatal blow. And our republic continues to die a slow death to this day.
Brown is without justification as it turned judicial activism into a reasonable if not commendable means to accomplish political ends. Brown, in essence, gave the court prestige and legitimacy to which it was not entitled. And as a result, many are fine with if not in awe of the fact that an increasing number of fundamental policy choices have been taken away from the democratic public and handed over to what have become oligarchical courts.
Let us first briefly review the appeal of judicial activism. Many observe, quite correctly, that democracy is at times too slow or too swayed by popular prejudices to do good with adequate speed. To be sure, democracy's relatively slower processes of debate, deliberation and compromise, do put it at a disadvantage when addressing issues which call for quick and decisive action. Many are subsequently quick to call upon rulers who are less responsive to the democracy, and thus more decisive, in order to help us through and save us from time-sensitive calamities. Judges are but one form these saviors take.
Because judges on the Supreme Court are life-tenured and unelected, they are especially immune from the rebuke of the governed. This is their appeal. This is also, however, the reason we should be weary of judges who need not account to the public for their policy impositions. Put differently, to fully embrace these philosopher kings as the final arbiters of policy -- as many have for abortion, same-sex marriage, capital punishment, government treatment of religion, or our conduct towards prisoners of war, to name a few -- is a severely misplaced allegiance. For although democracy is slower than its competition, it is also wiser than its competition; it more frequently gets things right.
Undermining this utterly sensible principle is precisely how Brown has dealt democracy a serious blow. Prior to Brown, that the judiciary was not as good a policy maker as the legislature, was not much of a controversial idea. Most agreed that the more democratically accountable legislature was more attune to -- and thus, in the end took better care of -- the people, our rights and our liberties. That is to say, an overwhelming majority used to be commanded by the common sense precept that it is the legislature who will better protect the weak who are good from the strong who are evil, by creating an environment which allows for the weak to take care of themselves.
But after Brown, far too many people have grown up to believe that an elite few are in many if not most cases better protectors of our rights and liberties. Indeed, whenever one chastises a judiciary for legislating from the bench, there is an inevitable response. That is, that detractor of judicial rule and thus the champion of democratic governance, is compared to a detractor of desegregation and thus a champion of racist oppression. Of course, then, we need the judiciary to tell us which behavior should be encouraged through legal marriage or in what cases an unborn baby's life is without more worth than a fingernail or dog. According to this view, the democratic process just can't possibly know when something is a "right" which needs to be protected from the majority's prejudice. It is not like the Bill of Rights or the 14th Amendment were products of democratic will (insert sarcasm).
Without Brown's emotional talking points, however, there is little to support this love of judicial rule. Indeed, the arguments which belie judicial activism's merit are legion. But most damaging to notion of rule by judicial fiat is such an oligarch's plain inability to get policy decision's right as often as democratic processes. If nothing else, most would agree that history has taught us that governments which are more responsive to the people are governments which, in the final analysis, treat the people best. While an oligarch, for instance, may have given us desegregation a bit before the democratic public would have, non-democratic judges also gave us abortion without reasonable restriction, religion's eviction from the public square, and of course, Dred Scott together with the belief that blacks are mere property to be returned when lost.
The point of all this being that the judiciary can do it faster and does, at times, do it right. But possibly due to the speed of its decisions, or the elitist, detached, and misguided pitfalls to which all oligarchies are susceptible, democracy is still the better choice. So while the judiciary got lucky with Brown, let us not invoke Brown to tear down the democracy it purports to serve.