US Supreme Court Justice Louis Brandeis was born on 13 November 1856. His prevailing legacy is a concern for what he called “the curse of bigness” and doubtless his role as a co-inventor of the right to privacy will sustain his legacy for some time.
That said, the mantle of “progressive” rests uneasy with the progress of history and Brandeis’s views on eugenics and his views on race – or as some commentators have put it, his lack of views on race – have provoked comment in more recent times.
On 13 November 1922, Brandeis authored Zucht v King, an opinion joined by the rest of the bench, upholding San Antonio ordinances making vaccination a condition to attend school. For Brandeis, the ordinances conferred a broad discretion required for the protection of public health and was not arbitrary.
Zucht v King stands as a working example of the court’s recognition of “the police power”, the US constitutional ideal that each state of the federation retains legislative power with respect to the health, safety, morals and general welfare of the public.
Of course, the power is a balancing exercise, with the Fourteenth Amendment’s equal protection under the laws often being on the opposite side of the scales. Indeed, it was invoked by Miss Zucht.
Although there was considerable speculation during the COVID pandemic, the balance struck by the Court in Zucht v King remains good law. For now.
Not so a different application of the police power, an application endorsed by President Wilson, the president who appointed Brandeis, and an application which remained in place throughout Brandeis’s long tenure on the court. The application was identified and applied in 1896 in Plessy v Ferguson and is known as the “separate but equal” doctrine. The application recognised the validity of state segregation laws. The tension between the police power and the Fourteenth Amendment was resolved by the author of the majority opinion, Justice Brown, in these terms:
The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.
The reasoning was rejected – although the case was not expressly overruled – in the 1954 decision of Brown v Board of Education. Two years later, on 13 November 1956, the court confirmed a lower court holding that Alabama laws requiring segregated buses were unconstitutional.
There is a curious footnote to these high and mighty decisions. Rosalyn Zucht had been a student at Brackenridge High School before her expulsion. Brackenridge has the peculiarity in that in 1974 it was renamed in honour of Phillis Wheatley, the first published African-American poet, before being renamed in 1988. In the words of one online source:
Unfortunately, the name change did not please the close-knit alumni of the original Brackenridge campus, many of whom had attended the old school decades earlier, when that area of town was a prominent middle-class neighborhood. They simply wanted to hold on to the prominent local name with which they identified their high school traditions of years past. Their influence was strong enough that the San Antonio Independent School District changed the name of the new facility, located a few blocks east of the King William Historic District, back to Brackenridge High School.
