Jewish World Review May 14, 2004 /23 Iyar, 5764

Thomas Sowell

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Half a century after Brown, Part III | Although Brown v. Board of Education dealt with race and with schools, its judicial philosophy spread rapidly to issues having nothing to do with race or schools. In the half century since Brown, judges at all levels have become unelected legislators imposing the vision of the political left across a wide spectrum.

For example, the anti-business vision of the left was apparent in another Supreme Court case with Brown in its title — Brown Shoe Co. v. United States. In this 1962 case, the same Chief Justice Earl Warren who delivered the landmark racial decision now ruled that a merger between the Brown Shoe Company and the Kinney retail shoe store chain had to be broken up.

Why? Because the Kinney chain, which sold about one percent of the shoes in the United States, could be "foreclosed" to other shoe manufacturers if it merged with Brown Shoe. According to Chief Justice Warren, such mergers, "if left unchecked, will be likely 'substantially to lessen competition.'"

If ever there was a runaway extrapolation, this was it. If Brown and Kinney had been allowed to remain merged, together they would still have sold less than 6 percent of the shoes in the United States. But the Warren Court wanted to nip monopoly in the bud.

The same anti-business bias has over the years allowed frivolous lawsuits, based on junk science, to ruin or destroy companies and whole industries, costing vast numbers of workers their jobs. All of this happened, not because the written laws compelled it, but because activist judges stretched and twisted the laws to fit their own biases and preconceptions.

Nowhere did this free-wheeling judicial activism do more damage to more people than in the Warren Court's remaking of the criminal law.

Under the much disdained "traditional" approach of criminal law, murders had been declining dramatically over the years. The murder rate in 1960 was just under half of what it had been in 1934.

All of that changed quickly and dramatically for the worse after the Warren Court began imposing its own notions about crime in the 1960s. The most famous of these changes was the "Miranda warning" that police have to give suspects, stating that they have a right to remain silent and to have an attorney supplied free.

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For more than a century and a half, not one of the great Supreme Court Justices — not Holmes, not Brandeis, nor anybody else — had ever discovered any such requirement in the Constitution of the United States. Nor had Congress passed any law requiring any such thing.

It was just another part of the liberal vision imposed from the bench by an unelected judiciary. Moreover, Miranda was just one in a string of Supreme Court decisions that made it easier for criminals to escape punishment.

The theory was that a more "enlightened" understanding of crime would reduce the crime rate. Whatever the plausibility of this belief, the facts to the contrary were devastating.

The murder rate, which had been going down for decades, suddenly shot up. By 1974, the murder rate was twice as high as in 1961. The average person's chances of becoming a victim of a violent crime tripled between 1960 and 1976.

Anyone can make a mistake but judicial mistakes are set in concrete. Moreover, the very possibility that they might be mistaken never seemed to occur to headstrong Justices.

When a former police commissioner addressed a gathering of judges in 1965, warning of the consequences to expect from their rulings in criminal cases, Justices Warren and Brennan "roared with laughter," according to the New York Times, when a law professor poured scorn and derision on the commissioner's statements.

How many crime victims or their widows or orphans would have laughed is another question.

Brown v. Board of Education was not just about race or schools but was about a whole judicial mindset with ramifications across a whole spectrum of issues — and reverberations that are still with us in the 21st century. Its pluses and minuses have to be added up with that in mind.

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JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, "Applied Economics: Thinking Beyond Stage One." (Click HERE to purchase. Sales help fund JWR.)


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