In Brown, Chief Justice Earl Warren crafted a short opinion that commanded unanimous support. Here are the main points he made:
- The history of the Fourteenth Amendment with respect to segregated schools was “inconclusive.” Not at all! The Fourteenth Amendment, ratified in 1868, gives Congress the power to enforce it. Congress exercised this power by enacting several laws. But none of these laws says anything about segregation in education — which must mean that Congress did not then regard segregated schools as being a violation of the Fourteenth Amendment.
- “We cannot turn the clock back to 1868 when the Amendment was adopted.” Warren wasn’t interested in finding out the meaning of the amendment in 1868 — or even the intention of its Framers. He adopted the “living Constitution” approach, enabling him to interpret the amendment any way he liked.
- “Segregation of white and colored children in public schools has a detrimental effect upon the colored children.” And years of forced integration by busing didn’t really help.
- “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” True. Yet the long-term effect of heavy-handed judicial intervention has been “white flight” to the suburbs, a huge increase in the number of white kids in private education, and a serious decline in the standards of the predominantly black inner city schools.