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The peculiar thing about Brown v. Board of Education is that, when it was decided, liberal legal scholars trashed it. Indeed, the modern conservative movement has built its attack on civil rights initiatives and its critique of the judiciary on the disparaging assessments of the opinion offered by Henry Hart, Hebert Wechsler, and Alexander Bickel. This peculiar aspect of Brown has become the keystone supporting all arguments about what is excessive about the modern jurisprudence; federal courts are said to have a realist disposition producing an unbounded, relativistic, interdisciplinary judicial craft and characterized by an activist proclivity. These dual pillars of post-Brown judicial criticism have undercut the force and utility of Brown. They have also sapped progressive legal scholars' faith in the decision (and the law) as a tool for social reform.

This Article argues that such a loss of faith is unjustified. However, it exists because contemporary scholars, like Brown's contemporaneous critics, have not understood the opinion—they have not grasped the unique force of the opinion. Indeed, the main claim here is that the most important parts of the opinion are obscured as the Brown Court manifested an “Activist Insecurity” that has replicated itself on the judiciary ever since. One could say that the activist insecurity is the HIV of the judiciary, quietly reproducing itself within the body of law created by Brown, changing to hide from the jurisprudence's defenses, and spreading through Brown's prodigious intercourse with other areas of civil rights and constitutional law. Like HIV, the Activist Insecurity is a silent killer, emerging years later to sap the vitality of jurisprudential lines, eventually killing them. Brown, nearly fifty, is nearly dead.

Publication Citation

28 Ohio N.U. L. Rev. 303 (2002).