Oh Good

I've written before that it's important to me that Plessy v. Ferguson be considered, not just to be wrong, but always to have been wrong. To have been wrong the day it was decided. Well, I was encouraged to see the following line in a Supreme Court opinion I was just reading for class:

"...we think Plessy was wrong the day it was decided..."

Yes! The Supreme Court agrees with me!

Okay, technically that wasn't a majority opinion, it was a plurality opinion. Specifically it's the plurality in Planned Parenthood v. Casey, in the section discussing stare decisis. They (it's Souter, Kennedy, and O'Connor, though one suspects that Souter, perhaps the world's biggest fan of stare decisis, wrote that section) discuss why the overruling of Plessy in Brown v. Board of Education was consistent with the theory they used to justify upholding Roe v. Wade, despite certain reservations as to its soundness. The word at the beginning of the sentence, which I didn't include above, was "while," and what follows is a version of the way people justify Brown in light of the "changing times" or whatever: however plausible they may or may not have been in 1896, the purported factual underpinnings of Plessy (that segregation was not a "badge of inferiority," etc.) were absurd by 1954, and this therefore justified reversing the case.

Still, I doubt that Souter, Kennedy, and O'Connor would say something like that if it weren't pretty much the consensus on the Court. And my sense is that the Supreme Court usually thinks of itself, when overturning a precedent, as explicitly repudiating the older case, declaring that its reasoning was faulty from the beginning. That, I think, is as it should be; though of course there will be times when genuinely changed circumstances command a different result over time, this will be rare compared to the times when a new majority simply recognizes that the old majority got it wrong. This is likely to be especially true in the constitutional context, where, in theory, the underlying law isn't changing except by Amendment. Well, that depends on whose theory, I guess; Bruce Ackerman would disagree with me in no uncertain terms there, which is after all the point of my whole "do you think Plessy was wrong when decided?" inquisition.

I'll close with a return to the reasons why I find theories, like Ackerman's, that seem to suggest that Plessy was right for its time or whatever truly offensive rather than just wrong as an intellectual matter. If Plessy was not wrong the day it was decided, then it's not quite right to say that the Equal Protection Clause of the United States Constitution forbids racial apartheid, because obviously if it prohibits racial apartheid then Plessy could never, ever have been even a little bit right. And so I find it more than a little comforting to see the Court, even a plurality of the Court, stating explicitly that Plessy was always wrong. That simple statement commits the Court, the guardian and expositor of our Constitution, to the view that it's not just some contextual happenstance that we don't allow racial segregation. It's a matter of eternal and unchanging principle.