In an 8-to-1 opinion, the Plessy court, in an exercise of judicial activism, ruled that the states can constitutionally provide for equal, but racially segregated, accommodations in public transportation. That court stated, “If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals. … Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. … If one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane.”

A half-century later, in an unanimous opinion, the Brown court, while deliberately engaging in judicial activism, ruled that racially separate public schools cannot be equal.

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