I mentioned in my speech to the VFW on Veterans Day that I had just stopped briefly at the Brown V Board of Education National Historic Site. While I was there I took this picture of the actual black doll that sociologist Clark Kerr used so persuasively to demonstrate that “separate but equal” was a sham even in the Topeka schools which made a better go at it than in so many southern states. This was a novel non jurisprudence type argument. It was sociological and therefore controversial in many legal circles.
What Kerr had done was show black kids being offered two dolls to play with one a black doll and another an identical white doll. Invariably the black students chose the white doll because of years of messaging that blacks were ugly and unappealing.
Today, no one faults Brown v Board for its novel legal defense.
Donald Trump who once mused that he would have liked his mistress to abort her fetus on the Howard Stern show gave a vigorous if unconvincing argument that partial birth abortions justified making all abortions illegal. Now that he is past his seed sowing days he will appoint justices guaranteed to overturn Roe v Wade which has also been and continues to be lambasted as a misapplication of the letter of Constitutional law.
In the old days almost every lawyer agreed that nominees for Supreme Court positions should refrain from telling anyone how they would vote on issues coming before the court including Roe v Wade. And yet where abortion is concerned that doesn’t fly with a lot of “Conservative” justices. One of the most likely choices for Trump has said that Roe v Wade is an abomination. This could mean that abortion is an abomination or that the ruling was an abomination from the standpoint of jurisprudence.
I’m guessing this likely new member of the Supreme Court meant both of these possibilities.
If he does not consider Roe v Wade “settled law” perhaps he could take the same view where Brown v Board of Education is concerned.