Education and Democracy from Brown to Plyler

(Excerpt) Judicial review has often been cast in terms of democratic legitimacy. Democratic legitimacy is often linked to whether it institutes the will of the people through majoritarian rule and whether it creates processes for reevaluation of these prior decisions by newly constituted majorities. Judicial review of majoritarian decisions has often been criticized as a overriding or circumventing of these democratic processes. Beginning with Brown v. Board of Education, the Warren Court adopted a resolution of the “counter-majoritarian difficulty” of judicial review by tacitly accepting Justice Stone’s formulation from footnote four of United States v. Carolene Products and engaging in a more searching judicial review of majoritarian decisions in instances where the pluralist political give-and-take had broken down.

While the subsequent Burger, Rehnquist, and Roberts Courts have undermined much of the Warren Court’s jurisprudence, a few of the most transformative decisions had seemed safe. This may have changed in the wake of the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, overturning the landmark Roe v. Wade, and causing some politicians to begin openly questioning whether the Supreme Court should consider overruling other long-established precedents. One of these, Plyler v. Doe, like Brown, ensured educational access for a marginalized group and is similarly central to the contestations over judicial review and democratic legitimacy.