Thomas Sowell

 Although Brown v. Board of Education dealt with race and with schools, its judicial philosophy spread rapidly to issues having nothing to do with race or schools. In the half century since Brown, judges at all levels have become unelected legislators imposing the vision of the political left across a wide spectrum.
For example, the anti-business vision of the left was apparent in another Supreme Court case with Brown in its title -- Brown Shoe Co. v. United States. In this 1962 case, the same Chief Justice Earl Warren who delivered the landmark racial decision now ruled that a merger between the Brown Shoe Company and the Kinney retail shoe store chain had to be broken up.

 Why? Because the Kinney chain, which sold about one percent of the shoes in the United States, could be "foreclosed" to other shoe manufacturers if it merged with Brown Shoe. According to Chief Justice Warren, such mergers, "if left unchecked, will be likely 'substantially to lessen competition.'"

 If ever there was a runaway extrapolation, this was it. If Brown and Kinney had been allowed to remain merged, together they would still have sold less than 6 percent of the shoes in the United States. But the Warren Court wanted to nip monopoly in the bud.

 The same anti-business bias has over the years allowed frivolous lawsuits, based on junk science, to ruin or destroy companies and whole industries, costing vast numbers of workers their jobs. All of this happened, not because the written laws compelled it, but because activist judges stretched and twisted the laws to fit their own biases and preconceptions.

 Nowhere did this free-wheeling judicial activism do more damage to more people than in the Warren Court's remaking of the criminal law.

 Under the much disdained "traditional" approach of criminal law, murders had been declining dramatically over the years. The murder rate in 1960 was just under half of what it had been in 1934.

 All of that changed quickly and dramatically for the worse after the Warren Court began imposing its own notions about crime in the 1960s. The most famous of these changes was the "Miranda warning" that police have to give suspects, stating that they have a right to remain silent and to have an attorney supplied free.

 For more than a century and a half, not one of the great Supreme Court Justices -- not Holmes, not Brandeis, nor anybody else -- had ever discovered any such requirement in the Constitution of the United States. Nor had Congress passed any law requiring any such thing.

Thomas Sowell

Thomas Sowell is a senior fellow at the Hoover Institute and author of The Housing Boom and Bust.

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