The Limits of the Segregation Cases as a Model

A lot of the readings and discussion in the last unit of my Law & Society class on "Law and Social Change" tended to use the Brown v. Board of Education case and its progeny as archetypal examples. This is understandable; I did it myself. After all, the segregation cases are pretty demonstrably the biggest and best example of the United States legal system effecting large-scale social change, and although one can argue about how much the credit for those changes belongs to the court decisions that really just increases the allure of talking about these cases as the typical example. But they're not typical! These cases were really the first existential threat to the Southern social order of white supremacy. Well, okay, maybe the Civil War and Reconstruction at one point looked like it might be that, but at the very least these cases were the first existential threat since then, and probably the first such threat to actually proclaim itself as such, and to mean it. And of course they did mean it, and with support from Congress and the President they ended up more or less being that existential threat. And the Southern social order of white supremacy was, and arguably still is in its lingering legacies, the distinctive feature of American political structure. This was dominant issue of multiple centuries of our political history, and the Court announced that it intended to declare victory in that ancient struggle for one side, and then end the struggle. And, well, the struggle isn't entirely over, but it's a lot more over than it looked like it would ever be a century ago.

And you can't do that more than once! There is only one dominant issue in American political history, and the Brown case dealt with it. Other cases concerning other issues, by definition, don't deal with that preeminent issue. And I don't think I'm saying anything controversial by saying that race relations in this country have historically had a very different character than any other kind of issue. So, for instance, one might note that the Brown case and its progeny resulted in fairly little on-the-ground social change, desegregation, until the political branches of the federal government got involved with the Civil Right Act of 1964, and one might conclude from this that the legal system has relatively little independent ability to cause social change. I might disagree with that interpretation of the story of desegregation, but I'd like to make a broader point: the array of forces aligned around the Brown case was eminently singular. To use my favorite example, if at some point in the next few years the Supreme Court, or more precisely Justice Anthony Kennedy, grows a pair and decides to render a decision analogous to Brown on the issue of gay marriage, there will be no massive resistance. You'll find county clerks in Utah handing out gay marriage licenses the next day, or whenever the decision takes effect. If and when that decision comes, it will cause nearly immediate social change very directly, because the politics of gay rights are just not the same as the politics of racial civil rights in this country. The Brown case was great, and there's a lot to learn about law, society, and law and society from it, but one always has to be careful about over-generalizing from it. It really was a unique event.