A People's History of the Supreme Court

by Peter Irons

  The lawyer who opposed Marshall did not smile, or produce chuckles in the chamber. But he brought far more experience to the podium. John W. Davis had been the Democratic presidential candidate in 1924, had served as solicitor general of the United States, and was now a senior partner in a powerful Wall Street law firm. Still tall and imposing at seventy-nine, he had appeared before the Court in more cases than any lawyer except the legendary Daniel Webster. Davis had welcomed South Carolina’s invitation to argue in Briggs because he firmly believed in the state’s right to require racial segregation. He also firmly believed he would win the case. But he made a mistake that would have gotten a junior lawyer fired at his own firm. Justice Burton asked Davis if changing social conditions might affect judicial construction of terms like. “equal protection.” After claiming that social changes “cannot broaden the terminology of the Constitution,” Davis volunteered that definitions of “interstate commerce” had shifted over time.

  Justice Frankfurter jumped into the exchange, treating the legendary advocate like a first-year law student. “Mr. Davis, do you think that ‘equal’ is a less fluid term than ‘commerce between the states’?” Davis demurred: “I have not compared the two on the point of fluidity.” Frankfurter pressed him: “Suppose you do it now.” Davis asked if Frankfurter meant that “what is unequal today may be equal tomorrow, or vice versa.” That was his question, Frankfurter replied. “That might: be,” Davis cautiously answered. He had just conceded his case, but he would not concede that many things had changed since Plessy was decided. Pointing out that congress in 1862 had provided for segregated schools in the District of Columbia, Davis concluded that he saw no reason “why this Court or any other should reverse the findings of 90 years.” Ninety years earlier, of course, the nation had been convulsed in a bloody war over slavery. Davis did not mention that the segregation he defended was slavery’s legacy to the black children of Clarendon County.

  John W. Davis did not think he would return to the Court’s podium. “I think we’ve got it won,” he assured a colleague. But neither side won the first round of arguments, and Davis and Marshall both returned a year later for a second round before the justices. Setting the cases for reargument had been Justice Frankfurter’s solution to a serious problem. He firmly believed the Court must reverse Plessy without dissent. However, the initial discussions in the conference room showed that at least Justice Reed, and possibly Chief Justice Vinson and Justices Clark and Jackson, were not prepared to overturn Plessy. To avoid dissension in these momentous cases, Frankfurter proposed ordering the lawyers to answer several questions. The former Harvard professor drafted a test with five questions and eight subparts. Boiled down, they raised two issues: had the framers of the Fourteenth Amendment intended to outlaw school segregation; and if not, did the Court have the power to do that?

  The Court sent out Frankfurter’s questions on June 8, 1953, with answers due on October 12. Lawyers on both sides struggled with his examination over the summer. Radio bulletins interrupted their labors on September 8, with news that Chief Justice Vinson had died suddenly of a heart attack. Frankfurter had proposed reargument largely because he despaired that Vinson could shape a unanimous Court in the school cases. His private reaction to Vinson’s death was vintage Frankfurter: “This is the first indication I have ever had that there is a God.” His prayers for judicial leadership were quickly answered by President Dwight Eisenhower, who had swept into office in 1952 with the largest margin in history over his Democratic opponent, Adlai Stevenson. With his wide grin and disarming manner, “Ike” stayed above the political fray while GOP partisans lambasted the Democrats, who were saddled with the Korean War. During his election campaign and eight months in office, the new president avoided taking sides on school segregation or the Supreme Court cases. Privately, Eisenhower confessed that he could see why white parents objected to having a “big black buck” sit next to their daughter in school.

  In choosing Earl Warren to replace Vinson as Chief Justice, Eisenhower paid a large political debt to the California governor, who had swung his state’s delegates behind Ike at a crucial point in the 1952 GOP convention. Warren’s move scuttled the candidacy of Ohio senator Robert Taft, the party’s right-wing favorite and Eisenhower’s leading opponent for the presidential nomination (ironically, Taft was far more supportive of civil rights than Eisenhower). Born in 1891 to Norwegian parents, Warren had received two law degrees from the University of California at Berkeley and practiced briefly before joining the army in World War I, leaving infantry service as a captain. He then spent twenty years in government legal service, rising from deputy district attorney to become California’s attorney general in 1939. Warren was a tough prosecutor, sometimes accused of targeting his political enemies. With his eye on the governor’s post, he supported the wartime internment of Japanese Americans, along with every other California politician. As governor in 1943, Warren echoed General John DeWitt in warning that “if the Japs are released, no one will be able to tell a saboteur from any other Jap.” The most popular official in California history, Warren was elected governor three times, the last two on both the Republican and Democratic tickets. His only defeat came in 1948 as Thomas Dewey’s vice-presidential running mate, but that narrow loss did not tarnish his political luster.

  Several months before Vinson’s death, Eisenhower had told Warren he was “definitely inclined” to offer him the next Supreme Court seat. Although he later said this offer did not include the Chief’s post, Ike kept his word and named Warren on September 30, 1953, just five days before the Court’s term began. Because the Senate was in recess, Warren did not need formal confirmation, which came the next March. The initial reaction to the new Chief Justice was not uniformly warm. Felix Frankfurter groused privately that Warren was just a political hack, and several critics noted his lack of prior judicial experience, a deficiency he shared with John Marshall, Charles Evans Hughes, and Harlan Fiske Stone. But within a few weeks, the hearty and solicitous Warren won over the justices; he sought Frankfurter’s counsel, soothed Jackson’s hurt feelings, asked Black to preside at the first conference, and brightened the Court’s dimmer lights—Burton, Clark, and Minton—with his glow.

  30

  “War on the Constitution”

  The second round of arguments in the school cases began on December 7, 1953. Two months after he replaced Fred Vinson as Chief Justice, Earl Warren led his colleagues through the red velvet curtain to the bench. Stacked before each justice were briefs that reflected six months of hard labor by dozens of lawyers and historians who struggled to answer the basic question Justice Frankfurter had posed: Did the Fourteenth Amendment’s framers intend to outlaw school segregation? Each side put its best gloss on the reports of debates in Congress and state legislatures, but they reached similar conclusions: the evidence was equivocal at best. In the end, more than a thousand pages of briefs had no impact on the Court’s final decision.

  The arguments stretched over three days and largely rehashed points made a year earlier. Warren had shuffled the docket and the Virginia case led off. Jack Greenberg later described the argument of Spottswood Robinson III, the NAACP’s southern regional counsel, as “a meticulous, dull, historical presentation” that went on for forty minutes before the first question. Greenberg found Thurgood Marshall “equally uninspiring” in his Briggs argument; Richard Kluger, who masterfully chronicled the school cases in Simple Justice, called it “one of his least creditable performances before the Court.” Marshall got stuck in the nineteenth-century cases and stumbled overt the McLaurin case, decided just three years earlier. He sat down without making the obvious point that if Oklahoma could not rope off George McLaurin from his white classmates, how could South Carolina rope off all its white schools from black children?

  Now eighty, John W. Davis took the podium after Marshall to speak once again for South Carolina. No other lawyer that day “came near matching him for
bite, eloquence, or wit,” Kluger wrote. Davis first summarized the answers to the Court’s historical quiz; the lawyers on both sides differed, he noted, and the attorney general, as amicus for the United States, “says he does not know which is correct.” Davis paused for effect. “So your honors are afforded a reasonable field for selection,” he said dryly, as the justices chuckled. After the laughter, Davis turned serious. Proclaiming South Carolina’s “good faith and intention to produce equality for all of its children of whatever race or color,” he choked up as he concluded, “Here is equal education, not promised, not prophesied, but present. Shall it be thrown away on some fancied question of racial prestige?” Tears flowed down his checks as Davis left the podium for the last time, after 140 appearances that stretched over four decades. Even Thurgood Marshall was moved by his opponent’s emotion. But one lawyer whispered to another, “That sonofabitch cries in every case he argues.”

  Marshall had reserved some time to answer Davis, and he spoke the next morning. Greenberg recalled that “Thurgood’s rebuttal was his best argument ever.” Marshall opened with a bow to his adversary. “As Mr. Davis said yesterday, the only thing the Negroes are trying to get is prestige,” he began. “Exactly correct. Ever since the Emancipation Proclamation, the Negro has been trying to get . . . the same status as anybody else regardless of race.” Marshall told the justices about watching the black and white children of Clarendon County: “They play in the streets together, they play on their farms together, they go down the road together, they separate to go to school, they come out of school and play ball together. They have to be separated in school.” Marshall deplored South Carolina’s “determination that the people who were formerly in slavery, regardless of anything else, shall be kept as near that stage as possible, and now is the time, we submit, that this Court should make clear that is not what our Constitution stands for.”

  The arguments concluded on December 10, 1953, but five months passed before Chief justice Warren announced the Court’s decision. During that time, the Court’s marble walls concealed from outsiders the politicking that swirled inside. Earl Warren made no pretensions of legal scholarship, but no other justice ever matched his political skills. Even more than Frankfurter, the Chief was determined to forge a unanimous Court around a brief and forceful opinion. Only if the justices spoke with one voice, in words the American people could understand, would the Court be able to help the nation heal its racial wounds.

  Warren set himself an ambitious task, and spent months cajoling his colleagues. Three justices required the full Warren treatment. Felix Frankfurter wanted an unequivocal ruling that school segregation violated the Fourteenth Amendment, but he also wanted to give southern districts time to comply with the Court’s mandate; he proposed a decree allowing them to proceed “with all deliberate speed.” Robert Jackson wanted the Court to admit frankly that ending segregation had no constitutional warrant; he drafted a concurrence that read like the fable about the emperor with no clothes. Stanley Reed posed the greatest challenge to Warren’s unrelenting charm; the courtly Kentuckian had drafted a dissent arguing that the Fourteenth Amendment only provided blacks “an opportunity to obtain facilities substantially equal to his neighbors for himself.”

  Warren won over Frankfurter by suggesting that the Court issue the opinion he wanted and also order a third round of argument on methods of compliance. If the southern states balked at dismantling their dual-school systems, the Court would frame a flexible decree ordering compliance “with all deliberate speed,” as Frankfurter proposed. Warren’s tactic worked like a charm. “What a pleasure to do business with him,” Frankfurter gushed to Justice Jackson, who never got back to his concurrence after suffering a heart attack in March 1954. Warren visited Jackson’s hospital room and left his draft opinion. The ailing justice asked his law clerk, Barrett Prettyman, to read it. Prettyman scanned Warren’s opinion and offered Jackson his own: “I said that I wished that it had more law in it but I didn’t find anything glaringly unacceptable in it.” Jackson called Warren and joined his opinion. Stanley Reed finally succumbed to Warren after more than twenty lunchtime discussions. After Frankfurter and Jackson climbed aboard his bandwagon, Warren offered Reed the last seat: “Stan, you’re all by yourself in this now. You’ve got to decide whether it’s really the best thing for the country.” Reed decided that holding out was not the best thing for the country.

  The Supreme Court’s chamber was not crowded on May 17, 1954. Thurgood Marshall got a tip from a friend and took a train to Washington that Monday morning. He entered the chamber as Chief Justice Warren presided over the admission of lawyers to the Court’s bar. Justice Clark then read an opinion in an antitrust case, followed by Justice Douglas, who read two opinions in cases dealing with corporate negligence and labor picketing. Most of the news reporters present that day were lounging in their basement quarters when the Court’s press officer stuck his head in the door. “Reading of the segregation decisions is about to begin in the courtroom,” he informed them. The reporters dashed up the stairs to witness an historic moment. “I have for announcement,” Warren began, “the judgment and opinion of the Court in No. 1,—Oliver Brown et al. v. Board of Education of Topeka.” As Warren read through his opinion, reporters could not tell who won. “The Court’s ruling could not be determined immediately,” the Associated Press flashed in its first bulletin.

  Reading in “a firm, clear, unemotional voice,” Warren reviewed the procedural history of the school cases and the grounds of their challenges to school segregation. He then reviewed the briefs submitted on the Fourteenth Amendment’s purpose and reach, stating that “although these sources cast some light, it is not enough to resolve the problem with which we are faced.” Warren also found no illumination from precedent, dismissing Plessy in one sentence as a case “involving not education but transportation.” Decades of arguments, millions of words, and mountains of briefs on Plessy had no impact on Warren. In deciding the school cases, he wrote, “we cannot turn the clock back” to the nineteenth century, when Plessy was decided. Warren was equally unmoved by evidence on “the tangible factors in the Negro and white schools involved in each of the cases.” Lower courts had found that school facilities “have been equalized, or are being equalized” in each case. In the end, the school cases had nothing to do with the schools themselves.

  What the cases really involved was the psychological impact of enforced separation on black children. Warren stressed “the importance of education to our democratic society.” Surprisingly, he said nothing about reading, writing, or arithmetic. The primary role of public education lies in fostering “cultural values” and “good citizenship” among children, he stated. Warren asked whether children could absorb these values and become good citizens in segregated schools. He found the answer in the social science data that John W. Davis had dismissed as irrelevant, and that even some NAACP lawyers had doubted. Warren quoted a long paragraph from Judge Huxman’s opinion in the Brown case, which itself quoted the. testimony of Louisa Holt at the Topeka trial. Separation by race denotes “the inferiority of the negro group,” she had said, and feelings of inferiority diminish “the motivation of a child to learn.” Warren cited in a footnote the studies of Kenneth Clark and other social scientists, including Isador Chein, to support Holt’s findings. The vice of segregation was not bad schools for black children, but the bad lesson it taught them. “To separate them from others of similar age and qualifications solely because of their race,” Waren concluded, “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

  Warren finally read the words the reporters had waited for. “We conclude unanimously that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” The word “unanimously” was not in the Court’s printed opinion, but Warren inserted it during his
reading for emphasis. Those who listened, including Thurgood Marshall, were unaware that Warren had worked hard for five months to use this word. He paid the cost of unanimity in the final paragraph. Citing “the great, variety of local conditions” in southern states, Warren ordered further argument on implementing the Court’s decision.

  Warren had hoped that a forceful and unanimous opinion would quell any incipient resistance to the Court’s ruling. Southern politicians quickly dashed his hopes; they needed no further argument on this issue. Governors and senators heatedly denounced the ruling. Georgia governor Eugene Talmadge claimed the Court had made the Constitution “a mere scrap of paper.” Senator Harry Byrd of Virginia called the decision “the most serious blow that has yet been struck against, the rights of the states in a matter vitally affecting their authority and welfare.” Governor James Byrnes of South Carolina, a former Supreme Court justice, said he was “shocked” by the Court’s action. Senator James Easland of Mississipi vowed that the South “will not abide by or obey this legislative decision by a political court.”

  A few voices of moderation rose above the din. Governor Thomas Stanley of Virginia said the decision called for “cool heads, calm study, and sound judgment.” The Atlanta Constitution urged Georgians to “think clearly” about their response and to ignore those who preached “violence and hatred.” The first year after the Court’s ruling was relatively calm and peaceful. Before any court actually ordered the admission of black children to white schools, those who counseled disobedience had nothing to disobey. One incident in Delaware, however, gave a preview of later conflict in Little Rock, Arkansas. In September 1954, fifteen hundred whites protested the enrollment of eleven black students at the Milford high school. After local officials closed the school, state officials ordered it reopened and police officers escorted the children inside, surrounded by hundreds of white protesters who had been whipped up by an “outside agitator” from the National Association for the Advancement of White People, a racist group that later caused trouble across the South. After NAACP lawyers filed a complaint against the Milford board in state court, Delaware’s supreme court gave a preview of state resistance to federal authority, ruling that Milford officials had not followed proper procedure in admitting the black students and voiding their decision.