Plessy v. Ferguson. Buck v. Bell. Korematsu v. United States. Together, these three decisions legitimated ‘separate but equal,’ sanctioned the forced sterilization of thousands, and ratified the removal of Japanese Americans from their homes during World War II. By Erwin Chemerinsky’s measure in The Case Against the Supreme Court, all three are Supreme Court failures—cases in which the Court should have protected vulnerable minorities, but failed to do so. Considered in historical context, however, a dramatically different impression of these cases, and the Supreme Court that decided them, emerges. In two of the cases—Plessy and Buck—the Court’s ruling reflected the progressive view at the time, and in the third— Korematsu—the extralegal context of the case was strong enough to draw the support of Justices Black and Douglas, two of the Court’s most staunch civil liberties defenders. Plessy, Buck, and Korematsu are potent reminders of the need to historically situate the Supreme Court when evaluating its proclivity to protect. But this is not to say that an ahistoric view of the Court’s protective capacity is all bad. However historically inaccurate, the Supreme Court’s image as a countermajoritarian protector also has a curious upside, setting in motion forces that can, over time, enable and inspire the Court’s protection. In the end, our expectations of the Supreme Court as a countermajoritarian hero both give rise to a rhetoric of failure and pave the way for future protection. What is vastly underappreciated is the connection between the two—how within the rhetoric of failure lies a larger, and largely untold, story of Supreme Court success.
Corinna Barrett Lain, Three Supreme Court “Failures” and a Story of Supreme Court Success, 69 Vand. L. Rev. 1019 (2016).