There were several factors that led the Supreme Court to overturn its “separate but equal” precedent with its landmark 1954 decision in Brown v. Board of Education, Judge Sonia Sotomayor said this afternoon.
“Brown v. Board of Education has often been perceived as a radical change by some, and the public viewed it as a radical change,” Sotomayor said to Sen. Herb Kohl, D-Wis., who had asked her about when it was appropriate for the Supreme Court to overturn its precedents.
“But if you look at the history over 20 years preceding” the Brown decision, Sotomayor said, “there were underpinnings that obviously gave the court some cause, some reason, to rethink this issue of ‘separate but equal.’”
She noted that the justices, in weighing the cases challenging segregation in K-12 education, had the famous dissent before them by Justice John Marshall Harlan in the 1896 case of Plessy v. Ferguson.
Harlan said “’separate but equal’ is just not consistent with the Constitution,” Sotomayor said.
Besides the factors that allowed the Brown court to overturn Plessy, Sotomayor said other factors were important when a Supreme Court justice weighs whether to overturn precedent, such as how many times the court itself has reaffirmed a particular ruling.
NOTE: I missed an exchange just before this one between Sen. Patrick Leahy and Sotomayor about the constitutionality of strip-searches of young people. (It came just after the committee had reconvened after a break.) I’ll file an item after I have a chance to see the transcript of it.
A version of this news article first appeared in The School Law Blog.