A People's History of the Supreme Court

by Peter Irons

  The Delaware incident did not influence school officials in other border states like Maryland and Kentucky, where most districts began integration without court orders. But the Deep South waited for federal judges to act, and the Supreme Court gave them plenty of time. The final round of arguments in the Brown cases began on April 11, 1955. Thurgood Marshall reminded the justices that there was “no local option on the Fourteenth Amendment” and urged them to order “forthwith” the dismantling of all dual-school systems. John W. Davis had died after his last tearful argument, and his replacement, S. Emory Rogers of Summerton, sorely tried Earl Warren’s patience. Rogers requested an “open order” that would impose no time limit or conditions on Clarendon County. Warren asked if school officials would “immediately undertake to conform” to the Court’s decree. “I am frank to tell you,” Rogers answered, that he doubted whether “the white people of the district will send their children to the Negro schools.” Warren pressed him: “You are not willing to say here that there would be an honest attempt to conform to this decree, if we did leave it to the district court?” Rogers replied, “No, I am not. Let us get the word ‘honest’ out of there.” Warren shot back: “No, leave it in.” Rogers remained defiant: “No, because I would have to tell you that right now we would not conform—we would not send our white children to the Negro schools.” Lawyers saw Warren flush with anger. “We thought he might charge Rogers with contempt,” one recalled.

  Rogers was at least honest in expressing the contempt that whites in Clarendon County felt toward blacks. He actually won more from the Court than Marshall Chief Justice Warren read the unanimous opinion—just seven paragraphs long—on May 31, 1955. He cited the “variety of obstacles” facing local school officials in giving them time to make a “prompt and reasonable start toward full compliance” with the Brown decision. But he said nothing about finishing the job. Warren simply handed federal distirict judges the task of framing such decrees “as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.”

  Two days after second Brown decision, Thurgood Marshall called a friend to exult. “I think it’s a damn good decision!” he said. Southern politicians had no choice. “They’ve got to yield to the Constitution! And yield means yield! Yield means give up!” And if they did not give up? “You can say all you want but those white crackers are going to get tired of having Negro lawyers beating ’em every day in court. They’re going to get tired of it.”

  But southern white politicians did not give up, and did not get tired. They had no intentions of moving at any speed toward a destination their white constituents feared more than hellfire. Georgia’s lieutenant governor, Ernest Vandiver, noted that “a ‘reasonable’ time can be construed as one year or two hundred.” He clearly preferred the latter. In 1956, the vast majority of members of Congress from the former Confederacy signed a “Southern Manifesto” that denounced the Court for “substituting naked power for established law” in Brown. Senator Harry Byrd of Virginia called for “massive resistance” to integration. “The decision tortured he Constitution,” one Alabama politician declared; “the South will torture the decision.” And it did.

  Senator James Eastland, racist to his core, was right when he called Brown a “legislative decision by a political court.” The Court has always been a political body. Its historic opinions—in Marbury, in Dred Scott, in Lochner, in West Coast Hotel, in Brown—have all been legislative decisions; they “made” new law to replace old laws. To claim that justices simply “interpret” the Constitution denies reality; the Court necessarily plays a role in the political process.

  The Brown case is a perfect example. The Constitution, the “supreme law of the land,” guarantees every American “the equal protection of the laws.” That provision of the Fourteenth Amendment was added by Radical Republican politicians during Reconstruction. Once the Radicals lost power and Reconstruction ended, southern legislators responded to political pressure from white voters and passed laws requiring racial segregation in public schools. Shut out from the political process, southern blacks took their grievances to federal judges after the Supreme Court promised “strict scrutiny” of discriminatory laws. Most of the judges they faced owed their positions to political sponsors who rewarded them for partisan loyalty with black robes. All the Supreme Court justices who decided Brown had political experience; five had been elected to public office and the other four bad worked closely with the president who picked them for the Court. The Constitution the justices “interpreted” in Brown was drafted by politicians, and the Court’s decisions were made with frank recognition of their political impact.

  The hostile reaction of southern politicians to the Brown decision in 1954, and their eager response to the “all deliberate speed” ruling in 1955 as an invitation to foot-dragging, confronted the Court with its greatest challenge since the Dred Scott decision. of 1857. The country faced the prospect of a second Civil War, with race-baiting politicians like Georgia governor Eugene Talmadge and South Carolina senator Strom Thurmond playing the roles of antebellum firebrands like John C. Calhoum and Jefferson Davis in vowing to defend the “southern way of life” against Yankee meddlers. This time, of course, the Court had sided with black Americans in their freedom struggle, and Chief justice Earl Warren was as determined to assert the Court’s power to enforce federal authority over the states as Chief justice Roger Taney had been to destroy it.

  The Court over which Warren presided during the volatile and often violent years between 1954 and 1958 had changed in composition with the addition of four new members, all nominated by President Eisenhower, whose commitment to civil rights was lukewarm at best. Three of these justices, however, matched Warren’s determination to enforce judicial authority over southern resistance to school integration. Even the most conservative of Eisenhower’s nominees, Charles Whittaker, joined his colleagues in laying down the law to defiant southern officials.

  The sudden death of Justice Robert Jackson in October 1954 gave President Eisenhower his first chance to shape the Court since he placed Earl Warren at its helm. He chose a lawyer with an impressive pedigree, Warren’s opposite in many ways. The Chief’s father came from Norway and worked on the railroads; John Marshall Harlan’s father came from colonial stock and headed a prominent Chicago law firm. Not only that, Harlan was named for his illustrious grandfather, whose Plessy dissent in 1896 had been vindicated in Brown Earl Warren spent most of his legal career in government service; John Harlan practiced for twenty years in a prestigious Wall Street firm. Eisenhower did not pick Harlan as a counterweight to Warren, but he served that role until the Chief’s retirement in 1969.

  John Harlan was a judicial conservative, but not in the reactionary mold of the “Four Horsemen of Reaction” who had frustrated the New Deal program of Franklin Roosevelt. Nor did he follow the “judicial restraint” doctrine with the dogmatism of Felix Frankfurter; Harlan voted to strike down state and federal laws in many free speech cases. His 1957 opinion in Yates v. United States reversed the Smith Act convictions of “second-tier” Communist leaders, without overruling the Dennis case. In 1961, Harlan dissented in Poe v. Ullman from the Court’s refusal to hear a challenge to a state law barring doctors from giving contraceptives to married couples; his statement in that dissent that the Constitution protected a “right of privacy” placed him years ahead of the Court and miles apart from Frankfurter. The last justice born during the nineteenth century, in 1899, Harlan did not feel its tug in reading the Constitution. That document, he wrote in 1961, reflects the shifting “balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organised society.” The second Justice Harlan retired in 1971 after sixteen years, a principled conservative with a libertarian streak, cast in the mold of his grandfather.

  Justice Sher
man Minton. retired in October 1956, during the last month of President Eisenhower’s second presidential campaign against Adlai Stevenson. This was a bad year for Democrats, with the exception of William J. Brennan, Jr., then a New Jersey supreme court judge. The popular president should not have worried about reelection, but he took the opening of Minton’s departure to curry favor with Catholics, who had been unrepresented on the Court since Frank Murphy died in 1949. Cardinal Francis Spellman, an archconservative prelate who vocally supported Senator Joseph McCathy, had pressed Eisenhower to fill the “Catholic seat” with his next appointment. Although Brennan had compared McCarthy’s Red-hunting tactics to the Salem witch trials in several speeches, Eisenhower did not know this before he asked him to join the Court. “I never heard a man say ‘yes’ so fast,” the president’s press secretary told a reporter. McCathy’s loud “no” was not recorded when the Senate confirmed Brennan by voice vote.

  The first justice born in the twentieth century, in 1906, Brennan learned about politics from his father, an Irish immigrant who settled in New Jersey and fired boilers in a Newark brewery. A union activist and city commissioner, Brennan’s father gave him some career advice. “Lad, you argue well around the house and I’ve no doubt you’ll make a fine lawyer. But as for politics, I think you’ll be happier out than in.“ The junior Brennan also learned the Catholic “social gospel” from his church’s encyclicals: “Workers are not to be treated as slaves,” Pope Leo XIII wrote in 1891; “justice demands that the dignity of the human personality be respected in them.”

  Brennan applied these lessons during his entire career. After completing Harvard Law School in 1931, he spent eighteen years in private practice, interrupted by army service during World War II as a troubleshooter in labor disputed that disrupted wartime production; he won promotion to colonel. New Jersey’s Republican governor tapped Brennan for the state trial court in 1949 and promoted him to the Supreme Court in 1952. Presiding at civil and criminal trials exposed Brennan to deficiencies in dispensing justice fairly and equally. His labors in court reform gained the attention of Herbert Brownell, Eisenhower’s attoney general, who recommended him for Minton’s seat.

  Very few votes, if any, were swayed in 1956 by Ike’s decision to place a Catholic Democrat on the Court. But the new justice swayed many votes on the Court; Brennan’s personal warmth, Irish charm, and legal brilliance combined to make him the most influential justice of the past half century. Justice Brennan served for thirty-four years and wrote dozens of landmark opinions. His judicial legacy includes opinions for the Court in Baker v. Carr, estabilishing the “one person, one vote” principle; New York Times v. Sullivan, shielding the press from vindictive libel suits; Goldberg v. Kelly, extending due process protections to welfare recipients; and Texas v Jonson, wrapping the first Amendement around protesters who burned the American flag. All of Brennan’s opinions rested on his bedrock commitment to “human dignity” as a gliding principle,. He used this term in dozens of opinions and articles. Upholding the right of John Kelly, a disabled welfare recipient, to receive a hearing before officials cut off his benefits, Brennan cast the issue in broader terms: “From its founding, the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders.”

  Someone later asked Eisenhower if he had made any mistakes as president. “Yes, two,” he replied, “and they are both sitting on the Supreme Court.” Ike referred to Earl Warren and William Brennan, but his biggest mistake in picking justices came in his fourth nomination. Stanley Reed’s retirement in February 1957 opened a seat that could be filled without national political considerations. Charles Evans Whittaker had practiced corporate law in Kansas City for thirty years and was a close friend of Eisenhower’s brother Arthur, a Kansas City banker. Ike followed his brother’s advice in placing Whittaker on the federal bench in 1954; three years later he again consulted Arthur and promoted the neophyte judge to the Supreme Court. Whittaker proved totally unfit for his new job; he developed a paralyzing writer’s block and wrote no opinions of any significance. Rated as a judicial failure by scholars, Whittaker retired in 1962 as “disabled” and returned to corporate practice.

  President Eisenhower’s fifth and final nomination went to another midwestern corporate lawyer with a short tenure on the federal bench. Potter Stewart of Ohio replaced a fellow Buckeye, Harold Burton, who retired in October 1958. Born in 1915, Stewart was raised in a wealthy and staunchly Republican family in Cincinnati. After graduating from Yale Law School, he practiced law in Cincinnati and campaigned for Senator Robert Taft. Stewart risked his political future, however, by supporting Eisenhower over Taft at the 1952 Republican convention. He was rewarded in 1954 witch a federal circuit court seat, and won respect for well-crafted opinions that stuck to the facts and bowed to precedent.

  As an appellate judge, Stewart had followed the Brown decision without deviation, which provoked opposition to his Supreme Court nomination from Senator James Eastland of Mississippi. Praising Stewart as “an able lawyer” and “a man of integrity,” Eastland nonetheless declared he would not support any judge who supported Brown All seventeen votes against Stewart’s confirmation came from Deep South senators. He confirmed their fears by consistently supporting civil rights plaintiffs, but he took a hard-line position in criminal cases. Stewart avoided both the “rational basis” and “strict scrutiny” tests in his opinions; he would rather “balance” rights than place his thumb on either side of the judicial scale. During twenty-three years on the Court, Stewart wrote more than six hundred opinions, but just one contains a memorable phrase. Writing in a case that reversed an obscenity conviction for showing a French “art” movie called The Lovers, Stewart put the difficulty of defining “hard-core pornography” into these words: “I know it when I see it, and the motion picture involved in this case is not that.” Looking at each case like a movie critic, Stewart cast his “thumbs up” or “thumbs down” votes without reference to any consistent judicial standard.

  What good is the Constitution if government officials refuse to obey its commands? More to the point, what if they defy judicial orders to carry out these commands? The justices who served under Chief justice Warren—including three who joined the Court. after Brown was decided—faced that momentous question in 1958, a year after federal troops quelled an armed rebellion against the admission of nine black students to Central High School in Little Rock, Arkansas. The refusal of Arkansas officials to obey federal judicial orders produced a case, known as Cooper v. Aaron, that tested not only the Court’s resolve but also the nation’s commitment to the rule of law.

  In a real sense the greatest responsibility or the Little Rock insurrection in 1957 lay with President Eisenhower, who had pointedly declined in 1956 to change support the Brown decision. “I think it makes no difference whether or not I endorse it,” he told reporters. “It is difficult through law and through force to change a man’s heart,” he added. Statements like these created a vacuum of leadership, which demagogues quickly rushed to fill.

  One southern politician, however, did not immediately join the Dixiecrats who urged “massive resistance” to the Brown decision. Arkansas governor Orval Faubus, elected as a racial “moderate” in 1954, added black members to state boards and Democratic Party committees. The rural Arkansas town of Hoxie ended its separate, school system in June 1955. Even before the Supreme Court issued its second Brown opinion, the Little Rock school board adopted a plan for “phased” integration, beginning with the admission of black students to prestigious Central High in September 1957. Integration of other high schools, then junior highs, and finally elementary schools would be “phased in” over a ten-year period. The glacial pace of the Little Rock plan failed to satisfy the Arkansas NAACP, which filed suit against the board in February 1956. Six months later, federal judge John E. Miller endorsed the ten-year plan as a “good-faith” effort to “ultimately bring about a school system not based
on color distinctions.” The Eighth Circuit appellate court in St. Louis upheld Miller’s decision and cleared a path for nine black students to enter Central High on September 3, 1957.

  Although most whites in Little Rock supported the school board’s “phased integration” plan, news reports of the judicial order to integrate Central High inflamed the city’s racial bigots, who began waving Confederate battle flags and vowed to block the school’s doors to black students. Holding his finger to political winds that had blown up to gale force, Governor Faubus shed his “moderate” mask and began railing against federal judges. The night before the “Little Rock Nine” were set to begin school, Faubus spoke to the state on television. Warning that “blood will run in the streets” if the black students entered Central High, Faubus announced that he had ordered National Guard troops to surround the school and keep them out. The next morning, eight of the nine gathered at the home of Daisy Bates, the young president of the state’s NAACP chapters. They left in station wagons for the short drive to their new school. Fifteen-year-old Elizabeth Eckford did not show up at Daisy Bates’s home. Walking alone, holding her head high, she tried to enter Central High and was turned away by soldiers with bayonets. A menacing crowd surrounded Elizabeth and began yelling, “Get. her! Lynch her!” Someone hollered, “Get. a rope and drag her over to this reel” Protected by a white NAACP member, she finally escaped the mob on a city bus.