Term of engagement? Justices grapple with race, identity disputes over the legacy of Brown decision
When Justice Anthony Kennedy announced his retirement on Oct. 6, it was the most consequential legal opinion he had penned.
The law was not on his mind, the justice acknowledged later. Kennedy’s retirement will likely be the last time since 1982 he will have written an opinion that made headlines.
But Kennedy’s writing of the Brown decision in the 1980s was the most consequential legal opinion he ever wrote. It was the decision in the pivotal 1968 case that ended legal segregation in the American South, the one in which he declared, “Separate but equal is a fraud.”
For decades Kennedy was the lone dissenter on the court, and for decades his opinions on race have been the work of footnote to history.
Kennedy, who spent 35 years on the bench on the U.S. Supreme Court, first rose to prominence in 1957 when he wrote the opinion that struck down a law in Scottsboro Alabama. The majority opinion in Brown v. Board of Education, joined by Justices Hugo L. Black and William O. Douglas, declared that “separate but equal” was “the doctrine that this Court today has explicitly rejected.”
The decision was only the second time the court had declared such a policy unconstitutional, and the first since the infamous 1896 decision in Plessy v. Ferguson.
But not everyone was happy.
In a scathing minority opinion, joined by Associate Justice Felix Frankfurter, Kennedy wrote that the decision was “not a decision on the desirability or desirability only of racial separation, but on the necessity for the elimination of actual and apparent racial discrimination from the public schools.”
The four dissenters, Felix J. Brennan Jr., Arthur Goldberg, Thurgood Marshall and Byron White, argued in a blistering dissent that the court had no business declaring racial segregation constitutional.
“The opinion does not and cannot mean that segregation is necessarily constitutional,” Brennan wrote. “In fact, it means just the opposite; it means that it is unconstitutional to maintain segregation where it is itself discriminatory and that it is, therefore, unconstitutional to operate segregated schools.”
Kennedy’s dissent in Brown was only the second time an opinion of his was joined by two other justices. He joined
