By Michael A. Scaperlanda, First Things, 7 . 25 . 22
Michael A. Scaperlanda is emeritus professor of law at the University of Oklahoma College of Law.
In 1954, the Supreme Court upended 58 years of constitutionally protected segregation, concluding that “in the field of public education, the doctrine of ‘separate but equal’ has no place.” And on June 24, 2022, the Court upended 49 years of constitutionally protected access to abortion, concluding that “the Constitution does not confer a right to abortion.”
These are two of the most momentous constitutional reversals in our nation’s history. Brown v. Board of Education rightly mortally wounded Plessy v. Ferguson, and Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade. But Brown and Dobbs represent contrasting visions of the role of the judiciary in shaping American society. The Brown Court placed itself in the central role of creating a just society. The Dobbs Court cast itself in the supporting role of referee applying the standards set down by the Constitution, while locating the task of forming a just society in state legislatures on issues the Constitution is silent about. …
