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I am glad it did so. But that decision was as much of an activist decision of the Supreme Court as any there have been...Roe v. Wade included.

In fact, the righteousness and virtue of Brown v. Board is what probably gives license to sitting justices to continue to engage in judicial activism.

Unlike Starr, I don't bemoan Brown v. Board. I'm not so anal retentive as to think that, even in the most exceptional cases, there's no call for the Supreme Court to step outside its traditional role and carve up the fabric of the nation. Marbury v. Madison is probably another example of the Supreme Court being uppity.

It's not like the Executive Branch isn't ever guilty of activism that goes beyond its traditional province. The White House regularly exceeds its domain by issuing signing statements that carve out exceptions to laws that don't appear in the bills that the President signs into law. And the whole question of how we go to war...well, if people are going to get pissed off over separation of powers and branches of government not clewing tightly to the letter of the Constitution, forget about the decisions of an activist court and focus on something that's really worth getting upset about.

I submit to you, Brown v. Bd. of Education, as Exhibit A in the case in favor of why it's actually okay for the Supreme Court to ignore longstanding jurisprudence and take the bull by the horns and do what the politicians and the American public-at-large have exhibited little stomach for doing of their own volition.

I'm not saying that I win that argument on the basis of Brown v. Bd. of Education. It's just one exhibit. But I will say this much: I don't think someone who believes that the Supreme Court should NEVER superlegislate can look at Brown v. Board of Education and admire it as brilliant jurisprudence.

Strictly for purposes of the point you're making -- that the Court should never overstep its bounds -- I believe that Brown and Roe and Bush v. Gore are probably the three worst decisions in modern times.

We're just blinded by the vastly beneficial and redemptive historic repercussions of Brown to think of it as being profoundly activist in nature. Or maybe we're too afraid that a condemnation of Brown v. Board puts us in with some pathetic, if not despicable, company.

But if you erase all the history since Brown and put yourself back to May 18, 1954 -- reading the paper the day after the decision was issued -- it's actually not so difficult to see how plenty of Americans of good will could still decry that decision at the time without being racist or bigoted.

What that court did was so over-the-top crazy, it was not only contemptible for its overreaching...it was extraordinary for the vision (or sheer luck?) that those justices held for America in the wake of a decision that, by all rights, they should never have set forth if they had rigidly adhered to their oath and didn't let their collective conscience impel them to do instead what was right and best and wise.

I think the nation is disserved by numerous 5-4 activist decisions. If you're going to have an activist decision, it should be for that rare, historic case and it ought to be 9-0 -- or perhaps 8-1 to allow for that one curmudgeonly justice who refuses to do what's just and wise because he won't budge even if it will mean he winds up on the wrong side of history.

Maybe, in the case of the death penalty, it's not enough to say that the Court shouldn't ban it because that would be superlegislating. If there are other reasons to keep it, then fine. But I can see the death penalty being precisely the kind of decision where the court should exercise its license to superlegislate. And if the only reason for exercising restraint is to exercise restraint, that's just way too anal retentive for me.