The Supreme Court in [I[Brown[/I] reached the right result but applied the wrong analysis. Rather than flatly rejecting Plessy's faulty reasoning as a Fourteenth Amendment equal protection violation, the Court opened a Pandora's box of judicial activism moored in sociology and psycho-analysis.
Plessy was a 19th century case about a louisiana law requiring separate railroad cars for whites and non-whites, and again the justices twisted the Constitution to arrive at the result they wanted.
The problem a lot of people have with Brown is the faulty logic in the opinion. As you say, the Court invented constitutional rights. If they'd just said that Plessy was wrongly decided, that would have been fine.
You should mention your sources, but I was able to track it down (Mark Levin).
In any event, I think this supports my point that both conservatives and liberals are more "outcome based" on Supreme Court decisions than they care to admit. Conservatives who don't like Roe say there is nothing about abortion rights in the Constitution. If they do like Brown, like Mark Levin and you, they say there is nothing about segregation rights in the Constitution and contrary precedents were wrong to find such rights. Liberals are more likely to find various rights. But, in the end, it is the outcome that really matters to both sides -- and there is always some legal argument to dress it up.
Fine. Separation of powers has always been an ideal often violated in practice --- some issues are just so contentious that we need the Court to make the law. Hopefully, if it's good law, it tends to last.
We're not on the same page.
It's not that we "say there is nothing about segregation rights in the Constitution and contrary precedents were wrong to find such rights," rather we say that the fourteenth amendment forbids states making laws requiring segregation and therefore Plessy was wrongly decided.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The fourteenth amendment, as written, would seem to not forbid segregation per se, but rather to forbid states making laws requiring segregation. Plessy was about railroad cars in Louisiana, and by a strict reading, if the railroad company had decided by itself to have separate-but-equal accommodation, then the fourteenth amendment would have been silent, but the state of Louisiana passed a law requiring separate-but-equal accommodation, and that did violate the fourteenth amendment.
I'm with chuck grassley on this: during the kavanaugh hearing, he said
As I see it and I expect many of my colleagues will agree, the role of the judge is to apply the law as written even if the legal result is not one the judge personally likes. Justice Scalia has often been quoted because he was fond of saying, if a judge always likes the outcome of the cases he decides, he is probably doing something wrong. I don't want judges who always reach a liberal result or conservative result. I want a judge who rules the law the way the law requires. Judges must leave law making to the Congress, the elected representatives of the people. Judges and justices have lifetime appointments. They can't be voted out of office if they legislate, whereas if Congress legislates something the people don't like, then you can vote them out of office. That's why they're to interpret the law and not make law.
In Plessy, the justices decided the outcome they wanted and twisted the law to reach that outcome