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

9  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  The premise of this Article is that history’s verdict on a Supre- me Court ruling depends more on whether public opinion ultimately supports the outcome than on the quality of the legal reasoning or the craftsmanship of the Court’s opinion. I do not intend to defend that premise here, other than to say that history’s judgment on Brown v. Board of Education –the ultimate feather in the Court’s constitutional cap–seems to confirm its plausibility. The legal reasoning in Brown was widely ridiculed at the time, both by white southerners distrau- ght over the threat posed by the decision to their cherished “way of life” 6 and by elite legal academics and judges deeply invested in the enterprise of “reasoned elaboration.” 7 The Brown Court’s dubious rendition of the original understanding of the Fourteenth Amend- ment, its willingness to overturn decades’ worth of precedent sustai- ning the constitutionality of racial segregation, and its unprecedented invocation of sociological data in support of its legal conclusion ren- dered the decision susceptible to criticism, both from defenders and supporters of racial segregation. 8 Yet, over the course of ensuing decades, Brown became a cultural icon, and the Court’s vanguard role in the civil rights movement (at least relative to that of other govern- mental institutions) has enormously enhanced its prestige among the American people. 9 This conversion of Brown from a target of vitupe- rative legal and sociopolitical criticism into a cultural icon may sug- gest that the Court’s long-term standing depends more on getting its decisions right–by which I mean ruling in a manner consonant with long-term public opinion–than on the quality of its legal reasoning. Of course, this premise may be mistaken. The Justices them- selves, for example, seem convinced of the opposite view–that the Court’s legitimacy depends on its ability to convince observers that its rulings are based on sound legal principle, rather than political calcu- lation or personal preference. Thus, in reaffirming the vitality of the 6 See, e.g., Tom Brady, Black Monday (1955); James J. Kilpatrick, The Southern Case for School Segregation (1962). 7 See, e.g., Learned Hand, The Bill of Rights 55 (1958) (“I have never been able to understand on what basis it [Brown] does or can rest except as a coup de main.”); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 32-34 (1959) (criticizing the Court in Brown for its failure to justify its result on any “neutral principle”). 8 See, e.g., sources cited supra notes 6-7; Edmond Cahn, Jurisprudence, 30 N.Y.U. L. Rev. 150 (1955). See also Michael J. Klarman, Brown , Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 Va. L. Rev. 1881, 1931 (1995) (noting that in 1954 Brown “was not seen to be so obviously correct”). 9 See, e.g, John C. Jeffries, Jr., Justice Lewis F. Powell, Jr. 330 (1994) (stating that Brown “is universally approved as both right and necessary[;] . . . [m]ore powerful by far than any academic theory of constitutional interpretation is the legend of Brown ”). For other similar statements, see the sources cited in Klarman, supra note __, at 1928 n. 125.