The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

the Roosevelt Administration and prompting a confrontation it would likely lose on behalf of a very unpopular minority group. 91 In 1954, a full 68 years after the Fourteenth Amendment’s enactment, the Court belatedly used its judicial review power to conclude that state laws mandating racially segregated public schools violated equal protection. 92 However, the Court was unwilling to strictly enforce local integration plans in the face of white opposition meant that as late the 1970s, only a tiny fraction of Black schoolchildren benefited from racially integrated public schooling. 93 Even today, the vast majority of racial minority schoolchildren attend underfunded and underperforming majority-minority public schools. 94 As a result, the student achievement gap between Black schoolchildren and white and Asian schoolchildren has remains large, which explains why Blacks students struggle to gain admission on equal terms to highly selective universities and therefore lack access to prestigious and influential jobs. 95 Paying no need to this problem, the Court used its judicial review powers to prohibit local school districts from combating racially imbalanced schools and, in 2023, went so far as to prohibit racial affirmative action in higher education admissions. 96 The result has been 90 Korematsu v. United States, 323 U.S. 214, 246–247 (1944) (Murphy, J., dissenting). 91 Motivations for Japanese American Exclusion and Detention, 129 Cong. Rec. S1001 (daily ed. Feb. 24, 2016) (noting Commission on Wartime Relocation and Internment of Civilians’ conclusion that exclusion and detention were driven by “race prejudice, war hysteria, and a failure of political leadership”). 92 Brown v. Board of Education, 347 U.S. 483 (1954). 93 Civil Rights Project, UCLA, Brown at 65: The State of School Segregation by Race and Poverty in America (2020), https://files.eric.ed.gov/fulltext/ED650388.pdf (last visited Dec. 14, 2025). 94 Highlights, Status and Trends in the Education of Racial and Ethnic Groups, National Center for Education Statistics (last visited Dec. 4, 2025), https://nces.ed.gov/programs/race indicators/highlights.asp and School Segregation on the Rise Despite Growing Diversity Among School-Aged Children , HARV. GRAD. SCH. EDUC. (last visited Dec. 14, 2025), https://www.gse.harvard.edu/ideas/news/01/07/school-segregation-rise-despite-growing diversity-among-school-aged-children 95 Sean F. Reardon, The Widening Academic Achievement Gap Between the Rich and the Poor , in Whither Opportunity? Rising Inequality, Schools, and Children’s Life Chances 91 (Greg J. Duncan & Richard J. Murnane eds., Russell Sage Found. 2011).

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