If you haven't been listening to Nina Totenberg's series commemorating the 50th anniversary of Brown v. Board of Education this week, then go here and listen. It's very good.
One part really set the bells ringing, though. During a conference, Justice Robert Jackson made the point that this was something that should have happened already, but that Congress had failed to act, which forced the Supreme Court to force their hand.
This is a political question. I don't know how to justify the abolition of segregation as a judicial act. If we have to decide this question, then representative government has failed. The problem is to make a judicial basis for a congenial, political conclusion.
In the end, though, Jackson realized that it was up to the court to push the government toward the right way. It is doubtful that even the most vehement enemies of so-called "judicial activism" would argue that this wasn't the right decision. At least not today. At least not openly.
What really got to me, though, was how there are echoes of this concern in "Fat Tony" Scalia's dissent in Lawrence v. Texas, although Scalia seems to believe that the "people" are always correct, even when they're oppressing a minority group.
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
You see, "Fat Tony" would have just asked blacks to wait patiently until the south decided to give them the rights that they should have had anyway. Just think: Maybe they'd still have only about 50 more years to wait.
Update: Let's not forget, though, that Scalia's love for the vox populi is direct proportion to the degree that they want what he wants. When he disagrees, he has no problem correcting their fuzzy thinking.