How the Conservatives Canonized Brown v. Board of Education

Abstract

Brown v. Board of Education is the sacred cow of American constitutional law. This Article explores how Brown achieved its most-favored-opinion status. Although recent scholarship about the constitutional canon suggests that the reverence for Brown is a product of the moral force of Civil Rights Movement and the efforts of liberal academics intent on preserving the Warren Court's legacy, this Article contends that Brown's exalted place in the constitutional canon was ultimately the work of conservatives. This Article advances recent canonization scholarship in three principal ways: First, it bifurcates the constitutional canon into an upper and lower canon. Second, it argues that conservatives are chiefly responsible for moving Brown into the upper canon. Third, it chronicles Brown's canonization by employing a novel methodological device - Supreme Court confirmation hearings. The hearings of post-1954 nominees suggest that conservative affirmed Brown's validity in order to get confirmed, and as Justices, they subsequently narrowed Brown's interpretation. Chief Justice William Rehnquist's 1971 and 1986 confirmation hearings began this pattern. The controversy over a memo endorsing Plessy v. Ferguson that Rehnquist wrote as a law clerk to Justice Jackson unwittingly cast Rehnquist in a leading role among conservatives in securing Brown's hallowed place in the constitutional canon.

Keywords: Brown v. Board of Education, constitution, constitutional law, Rehnquist, civil rights, confirmation hearings

JEL Classification: K4