Law & Courts

‘Brown v. Board’ Cited in Draft Supreme Court Opinion to Back Overturning Abortion Rights

By Mark Walsh — May 03, 2022 7 min read
A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington. A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico. It's unclear if the draft represents the court's final word on the matter. The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which if verified marks a shocking revelation of the high court's secretive deliberation process, particularly before a case is formally decided.
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The leaked U.S. Supreme Court draft opinion that would overrule the constitutional right to abortion seeks to bolster its legitimacy by pointing to two of the court’s historic education decisions, including Brown v. Board of Education of Topeka, which overruled an earlier case that had entrenched racial segregation in public schools and other areas of American life.

“In appropriate circumstances we must be willing to reconsider and if necessary overrule constitutional decisions,” Justice Samuel A. Alito Jr. writes in the Feb. 10 “1st Draft” opinion in a major abortion rights case from Mississippi, in which the court has yet to release a final ruling. “Some of our most important constitutional decisions have overruled prior precedents.”

Alito cites Brown, which overruled the “separate but equal” principle from the court’s 1896 decision in Plessy v. Ferguson, as the leading example of the court correcting an egregious mistake. He also singled out West Virginia State Board of Education v. Barnette, the 1943 decision that overruled a 1940 ruling, Minersville School District v. Gobitis, and held that public school students could not be compelled to salute the U.S. flag in violation of their beliefs.

Barnette stands out because nothing had changed during the intervening period other than the court’s belated recognition that its earlier decision had been seriously wrong,” Alito writes.

The unprecedented leaked draft, which may yet undergo changes, was published Monday by Politico and confirmed Tuesday by the Supreme Court. Chief Justice John G. Roberts Jr. called the leak a “betrayal of the confidences of the court” and ordered the court’s marshal to investigate.

Draft opinion says court must correct its own mistakes

The Alito draft opinion, in the pending case of Dobbs v. Jackson Women’s Health Organization, would overrule Roe v. Wade, the 1973 decision that established a constitutional right for a woman to terminate a pregnancy, as well as Planned Parenthood of Southeastern Pennsylvania v. Casey, which in 1992 reaffirmed the basic right to abortion while establishing a new standard for evaluating restrictions on abortion. Politico reported that overruling Roe had the support of the court’s five most conservative members, which the court said nothing to confirm.

Roe was egregiously wrong from the start,” Alito writes in the draft. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

As part of his arguments in the 98-page draft, Alito addresses whether the principle of stare decisis, in which the court generally stands by its precedents, should prevail in the challenge to Roe and Casey.

“When one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake,” Alito writes. He then cites Brown, Barnette, and a third major decision, West Coast Hotel Co. v. Parrish, which overruled cases tracing from the court’s so-called Lochner era in the early 20th Century that had protected individual liberty rights against a wave of federal and state health and welfare laws.

Alito’s citation of Brown in the draft opinion tracks a discussion of Plessy and Brown that he and other conservative justices engaged in during the Dec. 1 arguments in Dobbs.

“So suppose Plessy versus Ferguson was re-argued in 1897, so nothing had changed,” Alito said to U.S. Solicitor General Elizabeth B. Prelogar, who was arguing in support of abortion rights. “Would it not be sufficient to say that was an egregiously wrong decision on the day it was handed down and now it should be overruled?”

Prelogar said Plessy was “egregiously wrong” on the day it was decided in 1896, but that the court had understood by the time of Brown that a factual underpinning in Plessy that separate but equal facilities did not create a “badge of inferiority” was mistaken.

“Is it your answer that we needed all the experience from 1896 to 1954 to realize that Plessy was wrongly decided?” Alito pressed Prelogar. She again said the court realized in Brown that the factual premise of Plessy was wrong.

“So there are circumstances in which a decision may be overruled, properly overruled, when it must be overruled simply because it was egregiously wrong at the moment it was decided,” Alito suggested.

At the oral arguments, Justice Amy Coney Barrett said that part of stare decisis doctrine was that it was not an “inexorable command and that there are some circumstances in which overruling is possible. You know, we have Plessy, Brown. We have Bowers versus Hardwick, to Lawrence.” (The second set of cases referred to Bowers, a 1986 decision that upheld a state criminal prohibition against gay sodomy and a later ruling, Lawrence v. Texas, which overruled it.)

Justice Brett M. Kavanaugh, at the same arguments, said “history helps [us]think about stare decisis” and “when you really dig into it, the history tells a somewhat different story, I think, than is sometimes assumed. If you think about some of the most important cases, the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent.”

Brown v. Board outlawed separate but equal,” said Kavanaugh, who also cited other cases that overruled precedent. If the court had adhered to precedent in Brown and the other cases he cited, “this country would be a much different place.”

Mississippi Solicitor General Scott G. Stewart, defending his state’s restrictive abortion law and urging the overruling of Roe, told the justices at the argument that if the abortion question is returned to the people, the “damage” from such procedures will be reduced and “they can compromise and reach different solutions.”

“But, if we don’t do that, we’re just going to have all this sort of damage, and at some point, it’s appropriate for the court to say enough, as it has in ... the great overrulings in Brown and in other cases.”

A teacher’s union president on the use of Brown in the argument

Randi Weingarten, the president of the American Federation of Teachers, said in an interview that she found Alito’s citation to the Brown decision in his draft opinion “very offensive.”

Brown was about finding that people of color should have the same standing as white people in this country, and kids of color should have the same opportunity as white kids,” said Weingarten, whose union joined a brief in support of the abortion clinic in Dobbs. “What Roe is about is that women should have the same fundamental freedoms of what happens with their bodies as men.”

The union president, who is a social studies teacher by experience and also a lawyer, said she would have trouble teaching children about how this opinion, if it became the court’s decision, would fit into the principles of stare decisis and the court’s legitimacy.

“I’m not sure how you would teach this to kids other than to say that the court had just changed its mind” on a fundamental right, she said.

The American Civil Liberties Union filed a friend-of-the-court brief in Dobbs in support of the abortion clinic that anticipated some of the conservative justices reliance on Brown in support of overruling Roe and Casey, including another of Alito’s arguments in the draft opinion, that continuing controversy over abortion undermines Roe and Casey.

The ACLU brief notes that Brown and Brown II, the 1955 decision that addressed remedies for racial segregation in the schools, were met with fierce resistance.

“This history—decades of litigation to enforce the Constitution, often in the face of open resistance— was no basis for overruling Brown,” the brief said. “The same is true of Roe and Casey.”

David D. Cole, the national legal director of the ACLU, said in an interview that the proper analogy under Alito’s logic in the draft opinion would be if the court had first ruled against segregated schools, and then overruled that with a decision endorsing “separate but equal.”

“Yes, constitutional decisions get overturned, but largely in the direction of expanding rights, not in the direction of limiting rights, and certainly not eliminating a long-held right,” Cole said. “That’s what they would be doing here.”

Justice Sonia Sotomayor, during the Dobbs argument, noted that the Supreme Court in Casey had discussed Brown as one of a very few “watershed decisions” whose overruling would bring into question the court’s legitimacy.

“Some of them, Brown versus Board of Education it mentioned, and [abortion rights decisions] have such an entrenched set of expectations in our society,” Sotomayor said. “If people actually believe that it’s all political, how will we survive? How will the court survive?”

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