The legal academy has long been engaged in a fascinating conversation about how big constitutional ideas can shift from being, as Yale Law professor Jack Balkin has put it, “off the wall” to “on the wall.” The question there is, when and how do initially fanciful ideas—like that the Affordable Care Act is unconstitutional, or that the Second Amendment is an individual right—start to gain traction and become serious questions for serious people?
The corollary to that debate is this one: When do ideas that have been “on the wall” for so long that they are basically trophies suddenly become subject to debate and dispute? It turns out that for Donald Trump’s judicial nominees, it’s easy enough to eviscerate a seminal, enduring legal proposition.
Consider Brown v. Board of Education, the landmark school desegregation case from 1954, which has long been celebrated by legal thinkers across the political, ideological, and temperamental spectrum as one of the most transformational constitutional statements of equality in American history. Conservative luminaries, when asked about their views of Brown, have tended to wax poetic about its position in the civil rights firmament. At his Supreme Court confirmation hearing in 2006, Samuel Alito called it “one of the greatest, if not the single greatest thing that the Supreme Court of the United States has ever done.” Only a year ago, Neil Gorsuch said at his confirmation hearing that Brown was a “seminal decision that got the original understanding of the 14th Amendment right.”