There are many debates that go on in and around law. As these great cases reveal, courts are some of the regular sites for the informed discussions that occur about the way the law and public policy should develop and grow. Although these exchanges are important dimensions of the law's operation, perhaps the more crucial debates are about the legitimate role of the courts in being so engaged in actually shaping law and public policy. For many, of course, this creative function will jar with their political understanding that, in societies that pride themselves on being democratic, judges are supposed to apply the law, not create it wholesale. This is especially so in matters of constitutional law, where legislative and executive institutions cannot correct quickly or easily, if at all, the decisions of the judicial branch of government. Others defend the courts as being necessary partners in the democratic governance of society; judges are less prone to succumb to political expediency and more likely to remained principled in their deliberations and decisions.

This underlying debate about the limits of judicial power and the correct method to be used by them is nowhere more heated and intense than it is in the United States. As regards the decisions of its Supreme Court, there is almost as much scrutiny of the nine judges’ style and approach to fulfilling their institutional responsibilities as there is of the substance of the individual decisions made. The judges must not only grapple with the difficult issues that come before them but also do so in a way that gains the approval of their observers and critics. And this task is no more evident or demanding than in the Court's handling of race and racism. The Supreme Court's decision in Brown is one of its most controversial and famous; it was the judicial shot heard around the world. It is still considered a litmus test for opposing views about the legitimate approach to ‘proper’ constitutional adjudication.