by Kermit Roosevelt, Professor of Law, University of Pennsylvania Law School
In 1896, in Plessy v. Ferguson, the Supreme Court upheld a Louisiana law that segregated railroad cars by race. The Equal Protection Clause, the majority explained, prohibited discrimination that aimed to stigmatize or oppress a group, but racial segregation did not. It was, instead, a reasonable, good faith response to the way things were. In 1954, in Brown v. Board of Education, the Court changed its mind. Segregation was inherently stigmatizing, it said, and anything to the contrary in Plessy was overruled.
This pattern ‒ initial acceptance of a certain kind of discrimination followed, years later, by its rejection ‒ has repeated itself with each major civil rights movement in our constitutional history. Plessy yields to Brown; Bowers to Lawrence; Bradwell v. Illinois (which upheld Illinois’ exclusion of women from the practice of law) to modern sex equality cases like United States v. Virginia.
But how does this constitutional progress occur? It is not, I’ve suggested, the work of heroic philosopher judges, discerning the true meaning of the concept of equality. Nor does it rely on diligent historians, uncovering the understandings of the people who ratified the Fourteenth Amendment. It happens because social movements change the minds of the American people about what is or is not oppressive, stigmatizing, or invidious. It is the judicial recognition of a change that occurs, first and primarily, outside the courts.
That change is the expansion of what Attorney General Francis Biddle called “the compass of sympathy” ‒ the scope of our ability to look at others and see our shared humanity. Social movements changed the outcome of constitutional cases by convincing Americans that those who had seemed different were not so unlike them after all; that the aspirations and desires of blacks, or women, or gays, were fundamentally the same as those of the rest of society, and that what these groups sought was not special rights or unique privilege but equality and inclusion.