A willingness to question the project of democracy that Brown created

So now the Supreme Court might reverse Brown, too? Seriously?

Since April 2018, more than two dozen executive and judicial nominees have declined to endorse the Supreme Court’s unanimous decision in Brown v. Board of Education. This week — one that marks the 65th anniversary of the landmark ruling that struck down legal apartheid in this country — the Senate is poised to confirm three of those judicial nominees to lifetime seats on the federal bench.

That is simply unacceptable.

I’ll say. It’s horrifying.

For nearly 65 years, the legal consensus around Brown was unequivocal. With its transformational opinion eviscerating segregation and codifying the modern contours of equal justice, Brown remained above partisanship, ideology and everything else.

Even the most conservative judges affirmed its centrality to our nation’s democratic character. At his 2005 confirmation hearing, Chief Justice John G. Roberts Jr. repeatedly affirmed his agreement with Brown. That same year, Justice Samuel A. Alito Jr. explained that Brown “vindicated what the equal protection clause of the 14th Amendment was supposed to mean, which was to guarantee equal rights to people of all races.” Just last year, Justice Brett M. Kavanaugh described Brown as the “single greatest moment in Supreme Court history.”

But in April 2018, Trump judicial nominee Wendy Vitter bucked more than a half-century of unanimity by failing to offer support for the Brown decision. In response to Sen. Richard Blumenthal’s (D-Conn.) request for her position, Vitter said, “I don’t mean to be coy, but I think I get into a difficult area when I start commenting on Supreme Court decisions, which are correctly decided and which I may disagree with.” Judicial nominees such as Andrew OldhamNeomi Rao and Michael Park followed Vitter’s lead.

Why are they doing this?

The ugly truth is that declining to offer approval of Brown signals a willingness to question the project of democracy that Brown created — one in which African Americans and other marginalized groups compelled the federal courts to honor the spirit of equal justice embodied in the words of the 14th Amendment. And this isn’t just deeply troubling; it’s also downright dangerous.

Damn right.

The author of the piece, Sherrilyn Ifill, is president and director-counsel of the NAACP Legal Defense and Educational Fund.

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