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There are people today who argue that Brown should have been decided differently - not in the sense that the Supreme Court should have upheld racial segregation in public schools, but rather that different legal arguments should have been employed when striking down school desegregation. Almost no one actually makes a case for the idea that racial segregation is acceptable under the Constitution even though people made such arguments when Brown was handed down.

Interestingly, those people used the same conservative positions and arguments which today are used to dispute the efforts to legalize gay marriage and abortion. Because the culture moved on and racial prejudice is no longer socially acceptable, the past conservative arguments are no longer regarded as legally acceptable. The same might be true of things like gay marriage in the future.

This is a situation which conservatives today must be willing to take seriously. Now, there are fair legal arguments against "judicial activism," whether in the context of Brown or in the context of some other decision, and I don't want to give the impression that opponents to "judicial activism" are crypto-racists and secret segregationists. My point is instead that court decisions mandating school desegregation were criticized in basically the same way that court decisions legalizing abortion, contraception, and sodomy have been criticized.

If gay marriage is legalized or if the phrase "under God" is struck from the Pledge of Allegiance, we'll see the same arguments again.

This doesn't mean that there is no argument against "judicial activism" or that there is no argument against any of these decisions. It is instructive, however, that anyone today trying to criticize Brown on such terms would be considered an extremist. Even William Rehnquist, during his confirmation hearings in 1971, defended the reasoning in Brown as valid. It would be nearly, though not quite, as difficult to find someone still making such arguments against Griswold v. Connecticut (which legalized the distribution of contraceptive information).

If there is a valid argument against "judicial activism," those making it need to distinguish what they are saying from the ways in which it was mistakenly used in the past. Thus, I contend that conservatives using this argument today when it comes to matters like abortion and sodomy have an obligation to acknowledge that they may sound very similar to those who once criticized Supreme Court rulings on desegregation and contraceptives.

Further, they should acknowledge that those earlier critics were wrong and that conservatives today might be just as wrong if they aren't careful. This requires a much more careful explanation about the problems of "judicial activism" than we normally see. Otherwise, conservatives will be guilty of ignoring their own history - and people who don't acknowledge past errors are doomed to repeat them. In 50 years, people might look back on the conservative critics of abortion and sodomy rulings just like we look back on the conservative critics of desegregation rulings. I don't think they want that, so they have a vested interest in explaining where the real differences lie.

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