Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

 R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto. 2018  44 Just as the diminishing salience of an issue may affect the Court’s ability to weather a storm of public controversy, significant shifts in public opinion on issues that retain their salience may im- pact the Court’s standing. Brown v. Board of Education was intensely controversial in 1954, but was much less so by 1964, and by 1974 enjoyed the overwhelming approval of Americans, black and whi- te, North and South. 187 Roe v. Wade , on the other hand, is nearly as controversial today as it was in 1973. Thus, the Court’s reputation may depend, to a significant degree, on the Justices’ skill at pre- dicting the future. Brown is the greatest judicial prognostication of all time. The Justices rightly understood that a fundamental shift in race relations was in the offing. 188 By acting as part of the vanguard of the civil rights movement, the Justices garnered substantial (in- deed, somewhat exaggerated) credit for the transformation in race relations that ensued. 189 Yet, public opinion does not always shift with the Court; it can move in the opposite direction as well. Thus, a Court decision that is initially popular or that generates a mixed response can later become so universally criticized as to subject the Court to popular vilification. Dred Scott and Plessy surely illustrate this phenomenon, and Korematsu may as well. 190 Fortunately for the Court, dramatic shifts in public opinion that render the Court a target of public vituperation frequently occur on issues that the passage of time has rendered largely obsolete. On such occasions, even nearly-universal public condemnation of its rulings seems to take little toll on the Court’s standing. Within a decade or two of the 187 See supra note __. See also Muse, supra note __, at 211 (noting a dramatic increase by the early 1960s in the percent- age of southerners who believed school desegregation was inevitable); id . at 270-71 (noting a dramatic shift in national opinion on race by 1963). 188 For the Justices’ perception that racial change was in the offing, see the statements quoted in Michael J. Klarman, Civil Rights Law: Who Made It and How Much Did It Matter?, 83 Geo. L.J. 433, 458 (1994) (book review). For the extralegal causes of this change, see Michael J. Klarman, Brown , Racial Change, and the Civil Rights Movement, 80 Va. L. Rev. 7, 13-75 (1994). 189 For the debate over how much credit the Court deserves, compare Gerald N. Rosenberg, Brown Is Dead! Long Live Brown !: The Endless Attempt to Canonize a Case, 80 Va. L. Rev. 161 (1994) (almost no credit) with David J. Garrow, Hopelessly Hollow History: Revisionist Devaluing of Brown v. Board of Education , 80 Va. L. Rev. 151 (1994) (tremendous credit) and Michael J. Klarman, Brown v. Board of Education : Facts and Political Correctness, 80 Va. L. Rev. 185 (1994) (indirect and moderate credit). 190 Dred Scott probably enjoyed majority support in the nation when decided. See Fehrenbacher, supra note __, at 565- 66 (noting that Dred Scott seemed, if anything, to help northern Democrats in the 1857 state elections). Plessy was so consonant with public opinion that it went virtually unnoticed. See, e.g., Charles A. Lofgren, The Plessy Case: A Legal- Historical 197 (1987); Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part I: The Heyday of Jim Crow, 82 Colum. L. Rev. 444, 469 (1982). Korematsu was exactly what most Americans demanded during the war. See Peter Irons, Justice at War (1983), ch.3. For subsequent vilification of these decisions, see the statements quoted in Klarman, Civil Rights , 25, 28.