Much of the Supreme Court’s moral capital rests on two Warren Court decisions, Brown v. Board of Education and Reynolds v. Sims. (An interesting sidelight: according to John Hart Ely, “Chief Justice Warren used to say that if Reynolds had been decided before 1954, Brown would have been unnecessary.”) Thus, it is hardly surprising that the Court often wraps itself in the mantle of these decisions, particularly when announcing controversial results. (Think Bush v. Gore.)
Riffing off Cole Porter’s song, Justice Scalia once mockingly referred to the “shocks the conscience test” as the “Napoleon Brandy, the Mahatma Gandhi,” of subjectivity. But Brown really is the “the top” – the Supreme Court dancing with the “nimble tread/of the feet of Fred/Astaire.” A constitutional theory that is inconsistent with Brown is unlikely to attract much support in the marketplace of ideas.