Let us not praise impetuous men

I'd never heard of Paul Craig Roberts, who recently assailed the Brown v. Board of Education decision as "infamous," until I read a criticism of that claim by Eugene Volokh. I agree with Roberts that we have entered into an era of kritarchy, and that it is damaging the basic priniciples of our Constitution, particularly democracy and property rights. But to assail Brown seems beyond the pale. I think that the prior cases dealing with race had been a bow to democratic realities, and Brown recognized that the time had come to state clearly that segregation had proven itself indefensible.

Roberts is correct in his criticism of the willingness of judges to increasingly throw aside deference to the political branches. By doing so, they have made themselves political as the current impasse in approval of the president's judicial nominees in the Senate illustrates. But that wasn't initiated by Brown, it was in Marbury v. Madison. The best reason for judicial restraint is to avoid precisely the problems we have now, of government by lawsuits, where courts boldly grant litigants results that they have been unable to achieve through the democratic processes of politics. Courts should be reluctant to furnish the intent left unclear by vague or overbroad legislation. They should whenever possible resist attempts to overrule elected representatives. Brown was a case where that was just no longer possible, because democratic institutions had failed utterly in providing basic equality. Where the court went wrong was in its subsequent decisions requiring busing, integration using racial quotas, etc. In order to attack segregation, the court became activist, reaching out to interfere with all sorts of individual rights in order to accomplish its goals.