Some Legacies of Brown v. Board of Education

Abstract

T HE litigation campaign against segregation that culminated in 1 Brown v. Board of Education' remains an important subject of study. Brown continues to be controversial because Americans remain uncertain about what its substantive commitments were, and, perhaps more important, how those commitments, as we now understand them, fit together with the other values and institutions that provide the structure of contemporary politics. This Essay will follow up on three aspects of the litigation campaign preceding Brown in an effort to show how Brown and its legacy illuminate enduring features of the organization of the U.S. political system. Part I of this Essay will begin with a discussion of the very idea of a litigation strategy. Brown came to exemplify the possibility that lawyers could structure and execute a litigation strategy designed to produce substantial changes in the law. Liberals, and then conservatives, were captivated by the idea of coordinated litigation campaigns, even though the NAACP's legal campaign against segregation, when examined in detail, does little to support the proposition that strategic litigation campaigns matter.2 Part I will continue with an examination of the ways in which later litigation campaigns were modeled on, in modified form, the one that ended (provisionally) with Brown. A litigation campaign can matter only if its outcome-the decisions it generates, the forces in civil society it mobilizes-matters. The second question this Essay will take up is whether Brown matters. Professor Gerald Rosenberg's critique of Supreme Court adjudication as a vehicle for social reform uses the aftermath of