On Roe at Forty

Jack Balkin opens What Roe v. Wade Should Have Said with the observation that the most important difference between the 1954 decision of Brown v. Board of Education and the 1973 decision of Roe v. Wade “is the degree of public acceptance each has enjoyed.” Like Roe, he says, Brown was “hotly contested in the first few years after it was decided.” But Congress ratified Brown in the 1964 Civil Rights Act, the Civil Rights Movement altered attitudes about race, and “Brown was transformed from a flashpoint of controversy into a hallowed icon” symbolizing the aspiration for equality and human rights. In fights about busing, affirmative action, and gender and sexual equality, Balkin writes, contestants conceded Brown’s correctness, competed for its mantle, and condemned their opponents for playing politics with its meaning. “The political debate was framed within the parameters set by Brown, rather than as a debate over the legitimacy of Brown.” Consequently, some said “gay is the new black” and same-sex marriage, the last frontier in the struggle for equality. Roe, Balkin insists, had a different trajectory. No Civil Rights Act of 1983 ratified Roe’s result, and Roe “energized” hostile conservative and religious groups and transformed politics. “In contrast to Brown, many Americans—and particularly many American politicians—continue to argue that Roe v. Wade was wrongly decided and should be overruled.” Since Roe has not become “a hallowed icon like Brown”—there’s that phrase, “hallowed icon,” again—the debate over abortion rights has continually left Roe’s legitimacy up for grabs, with judicial nomination battles emphasizing its dubious vitality.¹

As a cantankerous academic, I want to challenge this view, which is widely accepted, before addressing Roe’s reception and evaluating its “lessons” for us about the relationship between Supreme Court opinions and social change. I argue that Roe is doing better than conventional wisdom indicates and that Brown is doing worse. To be sure, if we restrict our discussion of public opinion to polling data, we would say that public opinion has remained more static about Roe over the last forty years than it has about Brown—although even here, we might challenge conventional wisdom by pointing to the consistent majority support for Roe over time. In contrast, Gallup registered 55 percent of Americans approving of Brown in 1954, as opposed to 87 percent in 1994.²

Turn to more informed evaluations, though, and it becomes clear that the triumphal narrative of Brown, portraying it as “hallowed icon,” is in tatters. By the Brown at Forty and Fifty events, Brown, once the all-time feel-good decision, had become a total downer. Or, as Reva Siegel more eloquently put it, the narrative of redemption once spun about Brown was now one of betrayal. Not everyone embraces its most basic holding that states should not racially segregate primary and secondary school students. Some African Americans consider Brown racist. Justice Thomas implies that its contention that segregation stigmatizes African Americans assumes black inferiority; Derrick Bell questions the value of the integration he once championed; and Elizabeth Eckford says that she now appreciates blackness and no longer is happy that she braved white mobs to desegregate Little Rock’s Central High. Then there’s the fact that legal scholars have won fame by challenging the doctrinal foundations of Brown since the days that Herbert Wechsler declared that no “neutral principles” underlay the decision. Then there’s the debate about Brown’s consequences, with Michael Klarman contending that the decision sparked a backlash that halted the mellowing of Southern race relations and hardened white resistance; Gerald Rosenberg leading the chorus of disillusioned liberals who grieve that Brown spawned the “hollow hope” that the Supreme Court could remedy injustice; and critical legal scholars charging that Brown underscored the peril of the rights-consciousness it made possible. Then there are social scientists’ complaints that resegregation has replaced desegregation and that the relationship between academic achievement and desegregation always remained unclear, anyway. Add these criticisms up, and I think Earl Warren is hardly rejoicing that Brown is viewed as a “hallowed icon.” It’s far more likely that he...