The Brown Decision

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Appears
as a chapter in The
New Color Line: How Quotas and Privileges Destroy Democracy

by Paul Craig Roberts and Lawrence M. Stratton

At
daybreak on Tuesday December 9, 1952, Washington, D.C., was covered
in a cloud of fog so dense that National Airport was closed. Although
much of the fog had lifted by early afternoon, it hung thick in
the courtroom of the Supreme Court as the nine Justices took up
the next case on their docket, an appeal by the NAACP of school
desegregation suits it had lost in lower courts. Few in the courtroom,
which was decorated with twenty-four marble columns that were a
personal gift from Italian dictator Benito Mussolini, realized that
this dispute would have far-reaching implications that would eventually
devitalize American democracy. The item on the Court’s agenda was
actually a consolidation of five cases – from Delaware, the District
of Columbia, Virginia, South Carolina, and Kansas – all addressing
the constitutionality of racial segregation in public schools. It
was the name of the Kansas lawsuit by which the entire set of cases
would become known: Brown v. Board of Education of Topeka.

Brown
has become such a powerful symbol of the end of segregation that
it is now widely forgotten that after World War II the end of segregation
was in sight as a democratic outcome. After Brown’s three
days of argument had ended, the New Republic editorialized
that postwar America was already poised to end segregation “in the
onward rush of American history” from “the democratic heart of free
men.” “What the Supreme Court eventually decides will have little
effect in altering the course of that history.”

Ever
since that journal of opinion had featured a special section, “The
Negro: His Future in America,” advocating segregation’s abolition
a decade earlier, America had been moving toward the end of segregation.
Wartime labor shortages and postwar economic growth opened new opportunities
for blacks, and many segregated workplaces became desegregated.
In 1941 President Franklin Delano Roosevelt formed the Fair Employment
Practices Committee to guard against racial discrimination by defense
contractors. This trend was strengthened by the war against Hitler’s
regime that had reduced Jewish rights and then decimated the Jewish
population. Later, the Cold War, which prompted Soviet attacks on
U.S. segregation, provided another spur for change.

In
1946 President Harry Truman appointed a Committee on Civil Rights
whose report, To Secure These Rights, called for the elimination
of segregation, based on race, color, creed, or national origin,
from American life.” Truman urged Congress to pass civil rights
legislation and issued executive orders in 1948 to end segregation
in federal employment and the military. Truman also eliminated the
segregation requirements of federal housing mortgage insurance,
and, as a Washington Post editorial noted the day Brown’s
arguments began, President-elect Eisenhower promised during the
1952 campaign to end segregation in the District of Columbia.

Societal
attitudes were also moving away from segregation. A July 1944 survey
of college students found that 68 percent agreed that “our postwar
policy should be to end discrimination against the Negro in schools,
colleges and universities.” Georgia’s progressive governor, Ellis
G. Arnall, accomplished the repeal of the poll tax in 1945 and thereby
knocked down a barrier to black voting. Jackie Robinson broke the
color line in baseball in 1947, and black entertainers such as Lena
Horne found increased access to Hollywood and Broadway. In response
to the Truman civil rights committee’s report, ordinary people,
such as citizens of Montclair, Now Jersey, took community inventories
to expose and challenge local segregation. The Red Cross eliminated
the racial designation of blood donors in 1950. Oklahoma high school
students ignored traditional prejudices and elected a seventeen-year-old
black to lead the state’s Hi-Y youth clubs in January 1952.

In
the May 1991 Virginia Law Review, Professor Michael J. Klarman
reports that by the late 1940s blacks in the upper South were occasionally
winning local office with the help of substantial numbers of white
votes. He cites the failure of the 1948 Dixiecrat ticket in the
Southern states as evidence of growing Southern liberalism. National
Opinion Research Center polls showed growing acceptance among white
Southerners of integrated transportation and interracial residential
proximity. He reports that some cities in the deep South were contemplating
desegregating sporting contests and integrating the police force.
He attributes the evolving racial attitudes to greater urbanization,
industrialization, education, and prosperity and to persuasion by
churches and universities. Klarman concludes in the June 1994 Journal
of American History that “Brown was not necessary as an impetus
to challenge the racial status quo.”

Despite
these advances, many were impatient that the social transformation
wasn’t coming fast enough. Thurgood Marshall was one of them when,
in the climax of the NAACP’s campaign to end segregation by judicial
flat, he stepped up to the Supreme Court’s podium at 3:15 P.M. on
December 9, 1952. It was strange that the great moral issue of the
day was being debated in the Supreme Court instead of across First
Street in the U.S. Congress or in state legislatures. It was even
stranger that the debate was not about the law but about sociological
theories and the interpretation of doll experiments.

As
Marshall was getting up, his colleague Robert Carter was sitting
down. Carter had just been bruised by questions from the bench,
especially from Justice Felix Frankfurter, a former Harvard law
professor. Frankfurter had jumped on Carter’s argument that the
series of Supreme Court precedents mandating equal access and facilities
under the Supreme Court’s 1896 “separate but equal” doctrine implied
an overturning of the Plessy ruling itself.

It is unclear why Frankfurter, who wanted to overturn the separate
but equal doctrine, objected to Carter’s line of legal argument.
Perhaps Frankfurter was signaling the plaintiffs that the road to
victory was not through the law. Frankfurter revealed his own approach
to the case when he later asked Marshall whether the Court could
“take judicial notice of Gunnar Myrdal’s book.”

In
his argument, Marshall pled psychology, anthropology, and sociology.
He did not base his appeal on an argument that the district courts
had misread the law, but on the fact that the judges had rejected
and ignored the social science data he had proffered. He complained
that “the court completely disregarded” Kenneth Clark’s research
examining black schoolchildren and their perceptions of black and
white dolls. A negative impression of black dolls was Marshall’s
evidence that segregation was unconstitutional.

John
W Davis, the opposing counsel, made short work of Marshall’s argument.
Davis had such a magnificent presence in court that a judge once
commented that whenever he heard Davis argue a case, he closed his
mind to Davis’ argument for at least a week to lot its magic subside.
Oliver Wendell Holmes, who sat on the Supreme Court for thirty years,
said that no advocate who ever appeared before him was “more elegant,
more clear, more concise, or more logical” than John W Davis.

Davis’
oratory was honed in a brilliant career that included membership
in the House of Representatives, service as the solicitor general
in the Wilson administration, diplomacy as ambassador to Great Britain,
defeat as the Democratic party’s presidential nominee in Calvin
Coolidge’s 1924 landslide, and founder of a blue-chip New York City
law firm that still bears his name – Davis, Polk & Wardwell. Davis
so enjoyed lawyering that he declined an appointment to the Supreme
Court. As a Wall Street lawyer, he literally wrote the book on appellate
litigation. In this century, no one has argued as many cases before
the Supreme Court. Among his many victories was one over President
Truman in the Steel Seizure Case.

Never
had two opponents been so mismatched as that day in 1952. Marshall
himself regarded Davis as “the greatest solicitor general we ever
had.” Whenever Davis argued before the Supreme Court, Marshall would
skip his classes at Howard University Law School to see the great
man at work. It had left Marshall awed. “Will I ever, ever?” he
asked himself, “No, never.”

Davis
was not a segregationist. As solicitor general he had persuaded
the Supreme Court to strike down Oklahoma’s voting statute that
limited black voting. It was a historic case, marking the first
time that the NAACP entered a Supreme Court case by filing an amicus
curiae (friend of the court) brief in support of Davis’ position.
During his presidential campaign, he condemned the Ku Klux Klan
for racial and religious bigotry.

Now
seventy-nine and silver-haired, Davis was in command of the law.
He was ecstatic when he read Marshall’s brief and discovered that
it relied on sociological rather than legal argument. Davis regarded
the brief as “fluff” that could not move any court and confided
to a lawyer friend, “I think I have never read a drearier lot of
testimony than that furnished by the so-called educational and psychological
experts.” Davis confidently told an associate that “unless the Supreme
Court wants to make the law over,” something he thought no thoroughgoing
jurist would do, “they must rule with me.”

Marshall,
younger, taller, and mustachioed, was fired by the morality of his
cause. He handled the case more as a damage liability claim than
a point of constitutional law. Harm had been done and was being
done, and he had social scientists as witnesses. Law was not Marshall’s
strong point. William 0. Douglas, with whom Marshall later served
on the Supreme Court, regarded Marshall as “a fine individual” but
one who is “extremely opinionated and not very well trained in the
law.” Judge Henry Friendly, with whom Marshall sat on the Second
Circuit Court of Appeals, thought that Marshall took the law too
lightly. He wrote to Justice Felix Frankfurter:

I
do not have the feeling that he realizes the difficulties of his
job and is burning the midnight oil in an effort to conquer them;
rather he seems convinced that the problems are pretty easy and
that he is fairly well equipped to grapple with them – or rather
to follow someone else’s grapple. All this makes life fairly easy
for him, save when he is confronted with a difference of opinion,
and then he tosses a coin.

Davis
found little legal argument to address in Marshall’s presentation
and after noting that fact before the Court – “the evidence offered
by the plaintiffs… does not tread on constitutional right” –
he turned to the doll experiments. Davis showed that this evidence,
“be its merit what it may,” actually contradicted Marshall’s argument.
Davis cited the results of Clark’s surveys of children’s preferences
for white and black dolls: 62 percent of black children in the segregated
South chose the white doll, as opposed to 72 percent in the nonsegregated
North; when children were asked which doll was nice, 52 percent
in the South chose the white doll as opposed to 68 percent in the
North; when children were asked which doll was bad, 49 percent in
the segregated South said the black doll was bad compared to 71
percent of Northern children. Davis then revealed that Clark’s court
testimony was contrary to his published results. Obviously, a preference
for white dolls among black Southern schoolchildren could not be
interpreted as evidence of segregation’s inimical effects when black
schoolchildren in nonsegregated Northern states showed a stronger
preference for white dolls. Clark’s testimony that segregation produced
negative, self-destructive tendencies among blacks resulting in
self-hatred lay in ruins.

In
his rebuttal, Marshall floundered. He responded to Davis merely
by claiming the superiority of his social science experts. It was
at this point that Frankfurter interjected Myrdal. Everyone knew
that Justice Frankfurter was referring to the 1944 book, An
American Dilemma: The Negro Problem and Modern Democracy
,
by his Swedish socialist friend, Gunnar Myrdal. During Myrdal’s
extended visits to the United States to work on his study, he had
become a favorite of American intellectuals such as Frankfurter
and his Harvard colleague, John Kenneth Galbraith. When Myrdal needed
special State Department clearance for a wartime flight to Sweden
in 1942, he listed Frankfurter as a reference. Upon the publication
of Myrdal’s study, Frankfurter swore that it was “indispensable.”

Marshall’s
inability to convince the Court in 1952 was not due to any preference
for segregation among the nine Justices. Segregation had no friend
on the Supreme Court. Marshall’s problem, and the one Frankfurter
would overcome, was reluctance on the part of the majority of the
Court to usurp legislative power and democratic process in the name
of a just result, especially when the entire body of law on separate
but equal stood in opposition to Marshall’s goal. The legal problem
greatly troubled Chief Justice Frederick M. Vinson, because the
same Congress that had passed the Fourteenth Amendment had also
segregated the schools in the District of Columbia. That fact made
the argument unconvincingthat Congress intended the Fourteenth Amendment
to abolish segregation.

When
the Justices meet to settle cases, they shake one another’s hands
before sitting down by seniority in their leather chairs surrounding
the large table in the center of the Supreme Court’s oak-paneled
conference room. They followed this routine on Saturday, December
13, 1952. Oliver Wendell Holmes’ small carriage clock, sitting atop
the black marble mantle above the fireplace, had just struck noon.
With the great John Marshall, who served from 1801 to 1835, staring
down from an imposing portrait hanging on the wall just above Justice
Holmes’ clock, Chief Justice Frederick M. Vinson, Marshall’s ninth
successor, opened the meeting. Vinson had been President Franklin
Roosevelt’s “top utility-man” for the New Deal and Harry Truman’s
Treasury secretary before being appointed Chief Justice. He soberly
noted that the whole “body of law back of us on separate but equal”
stood in opposition to Thurgood Marshall’s desired result. The Chief
Justice found it “hard to get away from” this conclusion.

Going
by seniority, each Justice then spoke in turn. Hugo Black had been
appointed to the Court by President Roosevelt as a reward for having
deflected criticism of the Now Deal by conducting a heavy-handed
Senate investigation of alleged corruption in the Hoover administration.
Black hesitated to put the courts on the “battle front,” because
it would lead to “law by injunction.”

Stanley
Reed, who had been appointed by Roosevelt in 1938 after defending
the New Deal as solicitor general, said that he would uphold the
separate but equal doctrine. He was satisfied that constant progress
by blacks meant that “segregation is gradually disappearing.” He
regarded desegregation as a problem the states should work out for
themselves.

And
so the conference continued. Justice William 0. Douglas later wrote
in his autobiography that only three Justices in addition to himself
considered school segregation to be unconstitutional. Douglas was
a brilliant eccentric from Washington state who had worked his way
through Columbia Law School. He had been a Yale law professor and
then head of the newly formed Securities and Exchange Commission
before being appointed to the Court by Roosevelt at age forty-one.
Douglas recognized difficulties, but thought that the Court should
act swiftly to end segregation. Justices Sherman Minton and Harold
Burton, former midwestern senators appointed to the Court by Truman,
shared Douglas’ opinion.

Justice
Tom Clark, a close friend of Chief Justice Vinson who voted with
him 90 percent of the time, had been Harry Truman’s attorney general.
While in his own mind he wanted Plessy to be overturned,
he was concerned that Court precedent had led the states to believe
that “separate but equal” was “okay.” He did not want to rush to
go back on the law.

Although
most of the questions from the bench during oral arguments had come
from Felix Frankfurter, Frankfurter did not show his cards. As a
law professor, Frankfurter had been an exponent of judicial restraint.
His problem now was to figure out how to move the Court to abandon
restraint and to strike down the segregation that he abhorred. He
know the decision would have to be unanimous because of the absence
of a strong legal argument. To give himself time, Frankfurter urged
that the case should be reargued.

The
man whose comments made things most difficult for Frankfurter and
the other Justices who were trying to dispose of segregation was
Justice Robert H. Jackson. To Jackson, such a ruling would constitute
a blatantly political act. Jackson, the former chief prosecutor
of Nazi war criminals at Nuremberg, said that instead of thinking
like a policymaker, he approached the issue “as a lawyer.” Jackson
was a former general counsel to the Bureau of Internal Revenue and
had won a $750,000 judgment against former Treasury Secretary Andrew
Mellon. On this victory his career soared, and he became a close
Roosevelt advisor as solicitor general and attorney general. It
was clear to Jackson that nothing in the text, court opinions, or
history of the Fourteenth Amendment warranted the conclusion that
segregation was unconstitutional. Jackson feared the “ruthless use
of federal judicial power” that would follow if segregation were
abolished by decree. Jackson also opposed taking such an extraordinary
course based on nonlegal opinion. He noted that Thurgood Marshall’s
brief “starts and ends with sociology.”

Jackson’s
clerk, William H. Rehnquist, who had graduated at the top of his
class at Stanford Law School and would someday sit on the Court
himself as a Justice and then Chief Justice, summed up this position
in a memo Jackson asked him to prepare about Brown. Echoing
a famous dissent by Oliver Wendell Holmes – that the Constitution
did not enact Herbert Spencer’s book, Social
Statics
– Rehnquist wrote that the Fourteenth Amendment
“surely did not enact Myrdal’s American Dilemma.” Despite
Jackson’s disdain for segregation, he thought it should be ended
legislatively, not judicially.

Thurgood
Marshall’s eventual victory in the Brown decision could not
have occurred without Justice Felix Frankfurter. Recognizing the
strength of the arguments against ending segregation by judicial
fiat, Frankfurter designed a strategy to ease the Court around the
obstacles. He knew that a decision striking down segregation had
to be unanimous to have the sheen of legitimacy. To achieve this
outcome, Justice Frankfurter had to figure out some way to neutralize
the decades of precedent stemming from Plessy, and he had
to divert the NAACP from the implausible argument that the original
intent of the Fourteenth Amendment was to abolish segregation. The
former law professor had to persuade old-fashioned lawyers to give
sociology priority over law.

Initially,
Frankfurter was not sure how he was going to reeducate the Court.
So he orchestrated a two-year delay and subsequent reargument of
the case to overcome Marshall’s initial failure before the Court
in 1952. During the time gained, he conspired with the solicitor
general’s office to shape the Justice Department’s briefs and oral
argument in a manner designed to sway his colleagues on the Court.
It took him almost two years and required the help of his clerk,
Alexander Bickel, and former clerk, Philip Elman, a Justice Department
official, to overcome the legal scruples of his fellow Supreme Court
Justices. Thus, the Brown decision was won not only at the
expense of the democratic process, but also at the expense of judicial
impartiality.

The
change in administration from Truman to Eisenhower early in 1953
gave Frankfurter an opportunity. As the Court’s term progressed,
Frankfurter reiterated Ms position that the case should be reargued
to give the new administration a chance to submit a brief and to
participate in oral argument.

Toward
the end of May 1953, after the Justices had heard the last arguments
for the term, they met to divide up their remaining writing assignments
so that they could leave for their summer recess. Frankfurter returned
from this conference to his chambers in a “euphoric” mood. He told
his clerk, Alexander Bickel, who would later become a Yale law professor,
that he had convinced his colleagues to order a reargument the next
autumn.

Unbeknownst
to his fellow colleagues, Frankfurter had assigned Bickel to do
research on the history of the Fourteenth Amendment and the Reconstruction
Congress and state legislatures that had enacted it. Frankfurter
was hoping that language might be found that would either strengthen
Marshall’s or weaken Davis’ position on original intent. But the
chance was slight. Jack Greenberg, a member of the NAACP’s legal
team, reports in his autobiography that no less a foe of segregation
than historian Henry Steele Commager told the NAACP that the framers
of the Fourteenth Amendment did not “intend that it should be used
to end segregation in schools.” Commager urged the NAACP not to
base its case on the intent of the Fourteenth Amendment.

Bickel
found that it was impossible to conclude that the thirty-ninth Congress
foresaw that segregation might be abolished, because public education
was in its infancy. Moreover, where it existed it was often segregated,
even in the North. Indeed, it was only after the Civil War that
public education was widely established in the South. A prominent
Virginia Episcopal clergyman, the Reverend Kinloch Nelson, had fought
public education and labeled it “essentially communistic.” For former
slaves, public education, even though segregated, was a stop forward.
Had segregation not existed in the schools, public education would
have lost what weak support it had.

Bickel
urged a different approach. He argued that the language used by
the Constitution’s framers was so elastic that the Court could reinterpret
it according to the needs of the times. From this perspective, Bickel
argued that the legislative history of the Fourteenth Amendment
was “inconclusive.”

On
June 8, 1953, the Supreme Court unanimously restored Brown
to the docket for reargument on October 12. To be discussed were
questions about original intent and the implementation of a possible
decree ending segregation that Bickel and Frankfurter had drafted.
The last sentence of the two-page order’s list of questions invited
the attorney general of the United States to take part in the oral
argument and file an additional brief “if he so desires.”

This
seemingly innocuous sentence was in reality a lateral pass from
Frankfurter to Philip Elman who, after a stint as Frankfurter’s
clerk in the 1940s, had been serving on the solicitor general’s
staff. At the solicitor general’s office, Elman handled all civil
rights cases before the Supreme Court in which the United States
was involved as either a party or amicus curiae.

In
the judicial equivalent of insider trading, Frankfurter and Elman
frequently discussed Brown by telephone and in person. Elman
had used confidential information from Frankfurter to shape the
Truman administration’s Brown brief to influence the Justices’
views more effectively. Frankfurter and Elman used code names for
the various Justices, Justice Douglas was “Yak” because he came
from Yakima, Washington. Hugo Black was “Lafayette,” his middle
name. Justice Minton was “Shay.” Stanley Reed was “Chamer,” meaning
fool, dolt, or mule in Hebrew. And “Jamestown” was the code name
for Justice Jackson, referring to Jackson’s hometown in upstate
New York.

Frankfurter
counted on Elman collaborating again. In fact, the idea that the
cases should be reargued was hatched during one of Frankfurter and
Elman’s strategy sessions. The coconspirators believed that if the
government’s “independent” examination of original intent would
mirror the conclusion of Bickel’s internal court memo, Davis’ legal
argument could be neutralized.

Elman’s
first hurdle at the Justice Department was to overcome the fact
that the new administration would have been happier if the Supreme
Court’s special invitation to the attorney general had been lost
in the mail. Attorney General Herbert Brownell called a meeting
of top Justice Department officials. Included were Assistant Attorney
General Warren Burger, who would be appointed Chief Justice by President
Nixon, and Deputy Attorney General William Rogers, who would later
become attorney general and President Nixon’s secretary of state.
Rogers expressed the prevailing attitude: “Jesus, do we really have
to file a brief. Aren’t we better off staying out of it?” Elman,
one of the two Truman holdovers to attend the meeting, said, “When
the Supreme Court invites you, that’s the equivalent of a royal
command. An invitation from the Supreme Court just can’t be rejected.
Besides, if you turn it down, how are you going to explain it to
the press?”

Elman
won his point. At the beginning of August, Assistant Attorney General
J. Lee Rankin called Elman into his office and assigned him the
task of leading the Justice Department’s research effort and drafting
its brief.

The
first thing Elman did was to convince Attorney General Brownell
to ask the Supreme Court to delay the reargument. chief Justice
Fred Vinson complied with Brownell’s request and postponed the reargument
from October until December. Unsurprisingly, when the government’s
six-hundred-page brief was hand-delivered to the Supreme Court in
November, it contained the same conclusion that Bickel had provided
for Frankfurter: The elasticity of the Fourteenth Amendment’s language,
read in the light of changing times, rendered its original intent
ambiguous.

Frankfurter and Elman were aided and abetted in their endeavor by
the death of Chief Justice Vinson in September. To filll the vacancy,
President Eisenhower appointed California Governor Earl Warren.
As a governor, Warren was accustomed to the exercise of power. Unlike
Vinson, Warren was prepared to exercise as much judicial power as
he could get away with. He would not be deterred by arguments resting
on the separation of powers and federalism. Warren saw his Court
appointment as a more prestigious and powerful executive office.

Except
for the new occupant of the Chief Justice’s chair, the reargument
was essentially a repeat performance from the year before. Justice
Jackson, whose experience at Nuremberg had burned into him a deep
appreciation of the separation of powers, asked Thurgood Marshall
whether it was right for the Supreme Court to do what Congress had
not done after the passage of so many years, namely to abolish segregation.
Spottswood Robinson, another NAACP attorney, had just skirted a
similar question from Justice Reed. Reed noted that section five
of the Fourteenth Amendment states that “Congress shall have power
to enforce, by appropriate legislation, the provisions of this article.”
John Davis, making his last of 140 appearances before the Court,
reminded the Justices that under the Constitution’s allocation of
powers, “Your Honors do not sit, and cannot sit, as a glorified
Board of Education for the State of South Carolina or any other
state. Neither can the District Court.”

Just
before the reargument, Frankfurter had copies of Bickel’s research
memo, specially typeset in the Court’s printing office, distributed
to his colleagues. Frankfurter’s cover memo endorsed Bickel’s conclusion
that the Fourteenth Amendment’s elasticity of language made its
original intent inconclusive. With Elman’s Justice Department brief
taking the same line, Davis’ victory over Marshall’s legal argument
was neutralized. The question was pushed outside the realm of law
into one where sociological arguments could carry the day.

This
ploy would have failed under Chief Justice Vinson, who did not believe
that the judiciary should remake the law, but Earl Warren had no
such inhibitions. Warren and Frankfurter worked together to persuade
their colleagues to speak with a unanimous voice to end segregation.
As a politician, Warren had the interpersonal skills to promote
the goal that Frankfurter’s pedantic manner impeded. Frankfurter
wrote his colleagues long memos rationalizing the result he wanted.
He urged that law must respond to the “transformation of views”
and the “changes in men’s feelings for what is right and just.”
Yet, as spring approached, and Warren’s recess appointment was finally
confirmed by the Senate, Justices Reed and Jackson still held out.

Jackson
continued to view segregation as a question of politics and, therefore,
believed that it could not be abolished as a judicial act. Reed
asked his clerk to draft a dissent. When his clerk, John Fasset,
balked and said that he thought the other side had reached the right
decision, Reed asked him whether he favored a “kritarchy.” His crack
legal assistant did not know what the word meant, so Reed pointed
to the Oxford English Dictionary. Fasset soon learned the
definition of the phenomenon whose inception he was witnessing –
government by judges.

At
the end of March 1954, Jackson suffered a nonfatal heart attack.
Warren seized the opportunity and rushed to the hospital. Taking
advantage of Jackson’s weakened state, Warren successfully pressured
him to join the opinion that he had drafted. With Jackson’s vote
in his pocket, Warren told Reed, “Stan, you’re all by yourself in
this now. You’ve got to decide whether it’s really the best thing
for the country.” Isolated, Reed caved in to Warren’s pressure,
but reportedly never agreed with the decision.

On
May 17, 1954, Frankfurter’s strategy triumphed when Warren read
the unanimous opinion from the bench. Chief Justice Earl Warren
kept the opinion brief so that it would fit into newspapers without
having to be excerpted. As legal reasoning played no role, brevity
was not a problem. The gist of the opinion was captured by a New
York Times headline on May 18, 1954: “A Sociological Decision:
Court Founded Its Segregation Ruling On Hearts and Minds Rather
Than Laws.” James Reston commented that “the Court’s opinion reads
more like an expert paper on sociology.”

It
is easy to understand the Court’s preference for sociology. Segregation
was supported by more than a half century of precedent based on
the 1896 Plessy v. Ferguson separate-but-equal doctrine.
Moreover, the Court’s reargument and reexamination of the intent
of the Fourteenth Amendment was, at best, inconclusive. Chief Justice
Warren shrugged off the legal issues with the statement that “we
cannot turn the clock back to 1868 when the Amendment was adopted,
or even to 1896 when Plessy v. Ferguson was written.” The
relevant question, he said, is whether “segregation of children
in public schools solely on the basis of race, even though the physical
facilities and other ‘tangible’ factors may be equal, deprive the
children of the minority group of equal educational opportunities?”
The Court’s answer was, “We believe that it does.”

The
Plessy decision, he reasoned, was based on inadequate psychological
knowledge, and its continued use as precedent was inconsistent with
modern authority. At this point he attached a paragraph-long footnote
listing social science references beginning with Kenneth Clark’s
doll experiments and ending: “And see generally Myrdal, An American
Dilemma (1944).” Warren concluded, “Separate educational facilities
are inherently unequal.” He limited this ruling to “the field of
public education.”

Minutes
after the Chief Justice read the opinion from the Supreme Court
bench, the Voice of America flashed news of it around the globe
in thirty-four languages. The New York Times editorial board
declared that the Warren Court was “the guardian of our national
conscience” and congratulated the Court for reaffirming faith “in
the equality of all men and all children before the law.” The Nation
editorialized that the Supreme Court’s decision replaced the Plessy
precedent and made Justice John Marshall Harlan’s original dissent
in that case the law of the land. A subsequent New York Times
editorial repeated the Nation’s interpretation that Harlan’s “voice
crying in the wilderness” in 1896 finally became “the expression
of a people’s will.”

The
Washington Post, for its part, editorialized that the decision
“affords all Americans an occasion for pride and gratification”
and said that the decision “will bring to an end a painful disparity
between American principles and American practices.” The Post
expressed “to the Court a warm sense of gratitude for a great service
nobly discharged.” An expanded editorial the next day said that
“the manner in which this decision was rendered reflects judicial
statesmanship of the highest order” and that the decision represents
“a new birth of freedom…. Abroad as well as at home, this decision
will engender a renewal of faith in democratic institutions and
ideals.”

The
Boston Herald also rejoiced that the “frankly expedient”
decision proves that “the Constitution is still a live and growing
document…. It recognizes the growing national feeling that the
separation of Negroes (or other minority) children from the majority
race at school age is an abuse of the democratic process and the
democratic principle.”

Harvard
Law School Dean Erwin N. Griswold justified the ruling not on its
legal merit but for “carrying out the spirit which lies behind”
the equal protection clause. And Yale Law School Dean Wesley A.
Stages said frankly that “the Court had to make the law.”

Former
Secretary of State Dean Acheson, who witnessed Warren deliver the
opinion, gave his opinion that the decision was “great and statesmanlike.”
Harvard historian Arthur M. Schlesinger declared that “this is wonderful”
and that “the Supreme Court has finally reconciled the Constitution
with the preamble of the Declaration of Independence.” Schlesinger
predicted that the decision “will be a very great aid in clarifying
to the world our conception of democracy.”

There
was, of course, dissent from these accolades. Some felt that democratic
processes had taken a hit, but these forebodings seemed unimportant.
The implications of Myrdal’s argument – that democratic processes
could not be relied upon to produce the morally correct result –
passed unnoticed in the jubilation over the fall of segregation.

There
were other pitfalls in the judicial resolution of segregation. In
the Federalist Papers James Madison had foreseen that the
American experiment would be tested by its ability to protect the
liberty of minorities without employing favoritism or extrademocratic
measures. He reasoned that there are two alternative methods of
preventing majorities from oppressing minorities. One is consistent
with democracy and a rule of law; the other leads back to privilege
and feudalism.

The
wrong approach, Madison said, is to create “a will in the community
independent of the majority – that is, of the society itself.”
He noted that this approach “prevails in all governments possessing
an hereditary or self-appointed authority.” This option provided
a “precarious security” because “a power independent of the society
may as well espouse the unjust views of the major as the rightful
interests of the minor party, and may possibly be turned against
both parties.” Madison thought that the greatest danger would be
the emergence of a “will independent of the society itself.” A will
not dependent on majority opinion would inevitably come to resemble
the tyranny that the colonists had repelled in the American Revolution.

Madison
believed that the new American society embraced a more promising
method of protecting against the tyranny of the majority. The many
different factions and opinions “will render an unjust combination
of a majority of the whole very improbable, if not impracticable.”
He compared security for civil rights in a free society to religious
freedom. “It consists in the one case in the multiplicity of interests,
and in the other in the multiplicity of sects.” The multiplicity
of interests would require compromise on shared values. Minorities
would be protected by free debate to influence public opinion and,
thereby, the democratic process.

Madison
clearly believed that in a democratic society appeals to goodwill
would produce tolerable enough results to keep society liveable
for all. Indeed, it is precisely on this confidence in democratic
outcomes that the American experiment is based. This confidence
was shaken by Myrdal’s depiction of the permanence of segregation
in American democracy without the intervention of an extrademocratic
power.

In
Brown, the Supreme Court elevated Myrdal’s doubts about American
democracy above Madison’s confidence in it and made itself a “will
independent of the society.” In the eyes of the Justices and their
peers, desegregation had become the hallmark of moral society. This
pressing goal overshadowed in importance the respect for democratic
processes that had kept the antisegregation Vinson Court from overturning
Plessy.

It
was left to Columbia Law Professor Herbert Wechsler, who had assisted
the NAACP as a consultant in cases leading up to and including Brown,
to worry about the absence of any legal justification for Chief
Justice Warren’s central premise that segregated schools were “inherently
unequal” and therefore illegal. At a speech at Harvard Law School,
Wechsler suggested that Warren’s premise be accepted on faith. “I
should like to think there is” some neutral constitutional principle
that justifies the ruling, Wechsler stated, “but I confess that
I have not yet written the opinion.” Perhaps the most persuasive
evidence that no such principle exists is the alacrity with which
legal scholars abandoned the search.

After ruling in the plaintiffs’ favor, the Court delayed its implementation
for a year. The Court was aware that it had intruded into social
life and wanted the decision to sit rather than ruffle society too
suddenly. Elman and Frankfurter had previously decided that any
decree abolishing segregation had to be implemented slowly.

Finally,
on May 31, 1955, the Court ruled that the nation’s school districts
must “make a prompt and reasonable start” of complying with the
Court’s ruling a year earlier. Using an oxymoron that Frankfurter
had inserted into the opinion, Warren said that compliance had to
be accomplished “with all deliberate speed.” The federal district
courts were directed to enforce this decision in what has become
known as Brown II. As Justice Black had predicted, law by
injunction was unleashed on the land.

The
Brown decision was the product of an ex parte dialogue between
a sitting judge (Frankfurter) and a litigant (Elman), which transgressed
the fundamental ethical norms for judges that have changed little
since English King Alfred the Great’s legal reforms after his triumph
over the Danes in the year 878. The bedrock of the system of justice
that we have inherited is the impartiality of judges. Judges are
required to conduct themselves in a manner that promotes public
confidence in the integrity and the objectivity of the judiciary
and must avoid even the appearance of impropriety. But in Brown,
Frankfurter, in effect, received an ongoing brief from the government,
to which neither Thurgood Marshall nor John Davis had a chance to
reply.

Elman
thought that this “ordinary rule” did not apply because, he wrote,
“Brown v. Board of Education, which we fully discussed, was
an extraordinary case…. In that case I knew everything, or at
least [Frankfurter] gave me the impression that I knew everything,
that was going on at the Court. He told me about what was said at
conference and who said it.”

In
the February 1987 Harvard Law Review, Elman revealed his
conspiracy with Frankfurter, not in contrition over his unethical
behavior that has riven judges from the law, but to claim credit
for himself and Frankfurter for “this enormous contribution to American
constitutional law of the 20th century.” Defending himself from
impropriety, Elman said, “In Brown I didn’t consider myself
a lawyer for a litigant. I considered it a cause that transcended
ordinary notions about propriety in litigation.” Frankfurter had
been the “Kochleffel,” the “man stirring everything up inside the
Court.” Marshall and the NAACP’s briefs were not even good foils
for Frankfurter, Brown’s “grand strategist.” “Thurgood Marshall,”
said Elman, “could have stood up there and recited ‘Mary had a little
lamb,’ and the result would have been exactly the same.”

When
Elman spilled the beans about the conspiracy, liberals who had welcomed
the Brown decision roundly condemned the means by which it
was obtained. In a rare attack on two Harvard liberals, the March
24, 1987, New York Times said that Frankfurter and Elman’s
acts were “deeply disturbing” and “crossed a clear ethical line.”
The editorial, “With All Deliberate Impropriety,” noted that if
a Justice had similarly collaborated with the Reagan Justice Department
over abortion, “there’d be instant demands for resignation and threats
of impeachment for impropriety. Loftiness of purpose or concern
for national interest would be no defense.” Dismayed that the means
had sullied the ends, the Times acknowledged: “It has always
been improper for one side to have this kind of intimacy with a
judge. It’s no answer that the Brown case was special. Special
cases bubble up in every era.” Even the “hateful” segregationist
states “deserved a tribunal unsullied by acts of partisanship.”

Erwin
N. Griswold, a former solicitor general and dean of Harvard Law
School, was “startled” at the impropriety, as were many others.
Griswold said the behavior of Frankfurter and Elman was “clearly
regarded as improper at the time and would clearly be improper now.”

Swept
up by a cause, Frankfurter and Elman had forgotten that the road
to tyranny is paved with noble ends. In pursuit of a just cause,
they shattered the bedrock of jurisprudence – the impartiality
of judges, subordinated the law to sociology, and replaced the democratic
process and its appeal to goodwill with the rule of judges. The
end, they thought, justified the means, and they led the Court in
a new direction at odds with the American political tradition.

Despicable
means cannot produce good outcomes. The New York Times and
Griswold have kept Brown’s desegregation decree clutched to their
breasts while denouncing the means by which it was obtained. But
the most important result of Brown was not desegregation
but the rise of kritarchy: the rule of judges. From Prince Edward
County to Yonkers to Kansas City, cities, counties, and states have
lost their sovereignty to federal judges who overturn democratic
outcomes and usurp the power of the purse. Brown has led
a generation of judges to believe that they are the ultimate power
because the Constitution has no meaning to them other than their
subjective feelings about social policy.

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