Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education
![handle is hein.journals/hjlpp8 and id is 415 raw text is: SOWING THE WIND: JUDICIAL
OLIGARCHY AND THE LEGACY OF
BROWN V BOARD OF EDUCATION*
EDWARD J. ERLER* *
Numerous studies have appeared in recent years celebrating
judicial activism. By and large these works are together, in the
words of one perceptive critic, nothing more than an undis-
guised brief forjudicial oligarchy.' Indeed, they generally take
as their point of departure the proposition that courts are the
most effective protectors of rights and liberties precisely be-
cause the courts are insulated from the majoritarian political
process. One leading advocate of judicial activism has argued:
Since, almost by definition, the processes of democracy bode
ill for the security of personal rights and, as experience
shows, such liberties are not infrequently endangered by
popular majorities, the task of custodianship has been and
should be assigned to a governing body that is insulated
from political responsibility and unbeholden to self-ab-
sorbed and excited majoritarianism.2
According to this argument, the fact that the Supreme Court
generally acts contrary to the popular will in exercising its
powers of judicial review does not contradict the fact that it
promotes the precepts of democracy.' This unabashed argu-
ment for judicial oligarchy is made all the more transparent by
the attempt to justify it in terms of the ultimate values that are
integral to a democracy.4
* This article is a substantially enlarged and revised version of an article by the
author that was published in 36 NAT'L REV. No. 17 (September 7, 1984).
** Professor and Chair of the Department of Political Science, California State Uni-
versity, San Bernardino; B.A. San Jose State University; M.A., Ph. D., The Claremont
Graduate School.
I. J. AGRESTO, THE SUPREME COURT AND CONSTrrUTIONAL DEMOCRACY 13 (1984).
2. J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCEss 68 (1980).
3. Id. at 60.
4. Id. at 9. A rather fatuous and unsophisticated-albeit candid-version of this ar-
gument appears in R. NEELY, How COURTS GovERN AMERICA (1981).Justice Neely ar-
gues that every facet of the majoritarian political process is dominated by special
interests to such an extent that it has merely become the guardian of the status quo and
is therefore generally unresponsive to the need for salutary social change. The courts
therefore must fulfill the role that would be played by the majoritarian political process
if the majority were not corrupt. In a word, the courts act in the majority's stead be-
cause the majority cannot be trusted to act for the public good. As Justice Neely re-
marks, [t]he courts probably fell heir to deciding [such] . . . issues because their
neutrality made them superior to other institutions. R. NEELY at 21. Justice Neely](ViewImageLocal?handle=hein.journals/hjlpp8&div=41&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Sowing the Wind: Judicial Oligarchy and the Legacy of Brown v. Board of Education
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most