'I Have Been to the Darkest Corners of Government, and What They Fear Is Light'

[merrily]

185. Yes, it does. Unless and until Plessy was overturned, it was the law of the land.

That does not mean that the Plessy decision was ever right morally, but it was the law of the land. Not every statute is right morally, either, but it's law unless and until either amended or struck down as unconstitutional.

But court decisions do consist only of interpreting statutes or interpreting the constitution. There are areas in which courts made--and make--law before any statute on point exists. That is referred to as common law and our entire legal system is called a common law system.

You yourself admit that courts do not phrase what they do in such cases in terms of changing the law,

No, it was not an admission, simply a statement that I volunteered.

and I submit this is because most judges are not conceptually confused about the difference between a ruling that attempts to accurately apply the law and the law itself. Brown v the Kansas Board of Education did not change the law (in this case the 14th Amendment).

You're right: Most judges are not conceptually confused about this being a common law system. Neither am I.

I would submit that common law judges don't say they are changing the law when they overrule a case for some of the same reasons that we don't save the sky usually appears to be blue. It is understood that, in a common law system, courts make law.

I find it hard to believe that you never heard the term "case law?" "Binding legal precedent?" Laws bind us legally, not merely remarks from the bench.

I am not sure what Warren meant about Plessy having been an empirical mistake. Plessy was grievously discriminated against, yes, but not in any way that could have been objectively measured or observed. In fact, the railroad car in which Plessy was made to ride was newer and better than the car in which the whites rode. (The kids in Brown v. Board of Ed. on the other hand, were in measurably inferior schools. Older, in ill repair, not equipped similarly to the white schools, etc.) So I would have to see Warren's exact words in context of the whole opinion to comment further on what he meant if he said that Plessy had been an empirical mistake (as opposed to another kind of mistake).

But, regardless, Plessy was the law of this country from 1986 until 1954. Hence, during that time, no one could prevent states from enacting and enforcing Jim Crow laws. Until Brown, Federal marshalls had no legal authority to march African American children into all white schools, etc. The 14th amendment never changed but then again, the 14th amendment never said anything, one way or another, about "separate but equal." On the specific issue of whether "separate but equal" satisfied the equal protection clause, Plessy had made new law; and Brown had changed it.