by Paul Craig Roberts and Lawrence M. Stratton
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.