by Jim Newton
Warren would long grouse about the attention to footnote 11. He was not inclined to labor over the footnotes of his opinions, and there is no evidence that he gave great thought to this one. Had he done so, he undoubtedly would have deleted it, for footnote 11 to a great extent undermined the purpose of unanimity in Brown. One goal of a unanimous Court was to convey to the nation that there was no honest legal support for segregation. Warren’s unanimous Court had in fact conveyed just that sentiment. But footnote 11 seemed to suggest that the Court, as Reston reported, found its support not just in law but also in the more ephemeral discipline of sociology. Reston was right to call Warren on it, and Warren and his colleagues were caught on a mistake of their own making. Warren sulked.
Now, despite Warren’s great care to present his Court as a united front, the forces opposed to him and his colleagues began their work.
One man had the credibility and stature to demand compliance with Brown. As a candidate in 1952, Eisenhower had broken the Democrats’ hold on the segregated South, proving that his esteem trumped even long-established party loyalties. In 1954, Eisenhower’s strong support for the Court could have shown the nation the resolve that Warren had hoped to demonstrate by delivering a unanimous Court. But Eisenhower, as his comment to Warren at their February dinner that same year made clear, was unconvinced of integration’s wisdom. Having done his best to dissuade Warren from that course, the president now was irritated to have the burden of enforcing the order that his Court had thrust upon the administration. And so Eisenhower equivocated.
Speaking at a news conference on May 19, two days after the ruling, Eisenhower struck what was to become his standard reply to questions about Brown: “The Supreme Court has spoken, and I am sworn to uphold the constitutional processes in this country. And I will obey.”6 That was hardly the ringing endorsement that would encourage compliance; indeed, Eisenhower’s reticence was reinforced in his private communications to friends and allies, where he expressed the hope and expectation that the Supreme Court justices would not press too hard for the rights they had unanimously proclaimed. “My own guess,” the president told his old friend Swede Hazlett that fall, “is that they will be very moderate and accord a maximum of initiative to local courts.”7
Eisenhower’s deliberate refusal to stand with the Court infuriated Warren, and relations between the president and the chief justice effectively collapsed. After Brown, Warren wrote, “I can recall few conversations that went beyond a polite ‘Good evening, Mr. President’ and ‘Good evening, Mr. Chief Justice.’ ”8
While Brown broke new ground for equality, Warren deferred difficult choices in order to achieve unanimity. In effect, the Court had told the Southern states that they were engaged in an unconstitutional act, the racial segregation of schoolchildren. But it had not ordered it ended immediately, nor had it suggested what should be done. Instead, they deferred a decree and asked the parties to return the following term with proposals on how to proceed. That was remarkable by itself: When the Court finds a violation of the Constitution, it orders it halted. So the reargument signaled the difficulties in this area, and the justices played for time. As a result, they still had before them in 1954 and 1955 the problem of how to draft a decree that would enforce their desegregation opinion. The questions there were not mere details. Would schools be ordered to integrate at once? If not, how long would school districts have to begin the process and by what time would they be required to complete it? And by what theory would the Court pronounce that Negro children had a constitutional right to a desegregated education but not be allowed to enjoy that right immediately? A right, after all, is a right, not a privilege to be dispensed by the Court or others at their convenience.
Once again, the answers were found in a balancing move between the now clear constitutional rights of the plaintiffs and the fear of moving so quickly or broadly as to invite disobeying the Court. As with the original Brown case, the justices sought advice and time by scheduling reargument and inviting the Justice Department to participate as well. Again to the Court came the now familiar group of lawyers, though this time without John Davis, who withdrew from the case following South Carolina’s defeat in 1954 and who died a few weeks before the reargument. (Reed, the justice most sympathetic to Davis’s position on segregation, suggested to Warren that the chief justice read a statement from the bench honoring Davis and noting that “his appearances in this Court were in the best tradition of the American Bar.” Warren declined.9)
With Davis absent, his place was filled at the April 11 argument by S. Emory Rogers, whose combative presentation brought Southern resistance directly to Warren’s angry attention. Rogers was there to argue for a position similar to that predicted by Eisenhower in his letter to Hazlett the previous fall—the idea that lower courts should be given maximum latitude in overseeing desegregation of Southern schools. Rogers wanted time and wanted local courts to be able to judge the particulars of the circumstances in their areas. Warren was not averse to either of those positions, but Rogers made the mistake of attacking Warren’s authority rather than appealing to it.
As Warren attempted to pose a question to Rogers regarding how quickly his district would conform to the Court’s order, Rogers interrupted: “To say we will conform depends on the decree handed down.”
Warren was jolted. “It is not a question of attitude,” he reminded the lawyer. “It is a question of conforming to the decree.” Surely, Warren was saying in the bluntest possible terms, Rogers was not standing in the United States Supreme Court and arguing that the states would only adhere to a decree that they liked. American law—indeed, American society itself—is predicated on the primacy of the Supreme Court in matters of the Constitution. States have no right to refuse it. Could Rogers be daring to suggest otherwise in the presence of the Court itself?
Rogers tried to turn the discussion back to his request, that the lower courts have the discretion to fashion decrees in tune with local needs. But Warren wanted a straight admission of the Court’s authority. He tried again. “But you are not willing to say here that there would be an honest attempt to conform to this decree . . . ?” he demanded.
“No, I am not,” Rogers replied. Gesturing directly at Warren now, the lawyer then pushed to the edge of contempt. “Let’s get the word ‘honest’ out of there.”
“No,” the smoldering chief justice responded. “Leave it in.”
And still Rogers would not yield. “No,” he said again, “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.”
Warren hesitated, visibly straining to rein in his temper. As the lawyers for the Southern states winced and anticipated his response, the chief justice pulled himself together, ending the exchange with a brusque “thank you.” Rogers barely escaped without a contempt citation, and Warren had nearly lost his self-control at a moment that required maximum deftness. Never again would he underestimate the ferocity of the Southern antipathy toward Brown.10
That Saturday, the justices met again in conference, but it was a changed group that traded handshakes. Justice Jackson, who had abandoned his reservations and cast off his illness to join his brethren in Brown, had soon thereafter given up the struggle. In the autumn of 1953, the great and eloquent justice, his long feuds with Black behind him, his graceful wit diminished by time and stress, had at last succumbed to his weakened heart. Earl Warren, who had known Jackson for only one historic year, led the members of his Court to the National Cathedral to pay homage to the justice, then to Jackson’s native Jamestown, New York, for his burial near his boyhood home. Every member of the Court attended.
Jackson’s death deprived the Court of one of its greatest advocates and writers, but it gave Eisenhower his second vacancy in just over a year. This time, the president named John Marshall Harlan, an elegant Wall Street lawyer and grandson of the first John Harlan, who had so memorably dissented in Plessy v. Ferguson. Ideologically cons
ervative, as well as a dignified, patrician man, Harlan would prove much more to Eisenhower’s liking than Warren. But Harlan was also his grandfather’s progeny. He would not be the one to break the Court’s hard-won unanimity in Brown. As the justices took their seats that Saturday, Harlan now occupied the junior chair. He would speak last at conference. Warren went first.
Warren began in much the same vein as he had in the first Brown conference more than a year earlier—by recommending patience and conversation, not quick judgments. He had not, Warren told the conference, “reached [any] fixed opinion.” 11 But just as quickly as Warren set a tone of collegiality, he also reminded his brethren of something else that they had discovered in these discussions a year earlier—that while he valued their views and insisted on an atmosphere of respect, he was not in awe of his colleagues. Warren had opinions of his own. Warren now listed them. He summarily rejected a suggestion by Frankfurter—also contained in the Eisenhower administration’s brief—that the Court appoint special masters to oversee desegregation, though he added that he would not deny lower courts the chance to do so if they chose to. He did not want a final date set for the completion of the process—here, the conflict with Rogers must have rung in his ears—and he wanted lower courts to have flexibility in the orders they struck to move the process along. Having listed what he did not want, Warren then turned to “what appeals to me.”12 He proposed that the Court shift the burden for enforcing Brown back down to district court judges, but that it also write an opinion to help guide those judges in applying the law. It would be cruel, Warren insisted, to deny those judges such guidance and instead “let them flounder.” Finally, Warren rejected the suggestion that the Court only grant its relief to the individual plaintiffs who had sued in the four states and the District of Columbia. The cases were, he said, class actions, and thus the Court’s ruling on Brown’s applicability ought to apply to all segregated children in the districts that were sued, not just those whose families had shown the courage to file and pursue lawsuits.13
Black surprisingly disagreed with Warren’s recommendation on the reach of the cases. Despite his intense devotion to civil liberties—at least those enumerated in the Bill of Rights—Black was a Southerner and he saw trouble ahead. “I was brought up in an atmosphere against federal officials,” Black reminded his colleagues. Time had softened some of that feeling, he added, but federal intervention on behalf of Negro children would stir it again, fueling the South’s historic antipathy for Washington. For Black, the best decree would be the one that did the least—one that stuck by the proposition that school segregation was unconstitutional but that limited its effect just to the litigants who had brought the cases and that gave districts time to adapt. The Court, he said forebodingly, should expect “glacial movement,” but though that might be frustrating, it was preferable to the alternative. “Nothing,” Black warned, was “more important than that this Court should not issue what it cannot enforce.”14 And in that vein, he foresaw resistance. “Some counties,” Black said, “won’t have Negroes and whites in the same school this generation.” 15
Those were sobering words from a justice whose commitment to civil rights was without peer, and it set the tone for the rest of the conversation. Frankfurter hardly needed to be pushed toward judicial caution, so his support was inevitable, and he took the opportunity to assume the credit for successfully delaying the cases. “He now says he filibustered this problem under Vinson for fear that the case would be decided the other way . . . !” Douglas scrawled in obvious exasperation.16 Despite his irritation with Frankfurter, Douglas agreed that the Court should proceed with caution and should limit its own reach in order to achieve compliance.
Others weighed in similarly, urging unanimity and also counseling restraint. By the time the conversation reached Harlan, the junior justice, he had little left to add beyond noting that he too looked forward to the Court’s moving unanimously. Black’s remarks, Harlan said, had “made a deep impression.”17
Warren again assigned the opinion to himself, and as he wrote and circulated drafts through late April, he struggled for the right balance—not shrinking from Brown but not provoking too much, either. Warren did not, of course, yield from the position that Brown and Bolling had declared discrimination in public education unconstitutional and thus that all local, state, and federal laws to the contrary were required to yield to that ruling. Less satisfying were his attempts to mute the outcry at that finding. The Court agreed, first of all, to limit the immediate impact of its ruling to the parties who had brought the lawsuits. Though the principle of segregation’s unconstitutionality thus stood, the effect of it initially would be felt only by those families who had had the gumption to sue (in Kansas, Oliver Brown’s daughter was not even affected that much; Topeka’s segregated schools ended after elementary school, so she already was attending an integrated classroom).
As to timing, Warren’s early drafts of the opinion—the justices had settled on an opinion as preferable to a mere decree—ordered desegregation to begin “at the earliest practicable date.” That language was softened through the exchanges with other justices, and what emerged was a ruling that in effect said discrimination could continue for a very long time indeed. The most famous of the Court’s equivocations was added by Frankfurter, who suggested the language of “all deliberate speed.” Frankfurter was enamored of that phrase, with its intentionally equivocal implications. To him, it smacked of judicial statesmanship, and he had used it, seriously and whimsically, for years. As early as 1947, for instance, he had urged a former clerk to edit a document and return it “as the grand old chancery phrase expresses it, ‘with all deliberate speed.’ ”18 Now Frankfurter recommended it to give guidance to those judges asked to carry desegregation forward.
Except in Delaware, where the Supreme Court was upholding a lower court, the segregation cases were returned to the district courts, where judges were directed “to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.”19 As Lucas Powe notes with typical concision and insight, the message of Brown II “was that the Court was willing to accept token desegregation—later.”20 In the Florida legislature, when Brown II was read aloud, the audience burst into applause.
With Brown II, Warren and his colleagues moved the front line of the school desegregation battle out of their courtroom and into the district courts. There, many brave judges would face hostile local communities and demand compliance without state or federal support. That the matter moved ahead is a testament to their work, for while Warren had established a grand new principle of American life—the idea that equality was not just an abstract value but in fact the law—he was quickly discovering the limitations of his assignment. He could pronounce law and change standards, but he was not a governor anymore. The police no longer were at his command, and the president was not required to move the Court’s agenda. It would take time for Warren to understand both the reach and limits of the Court, but the balance of the 1950s would prove an essential fact of his new life: Only with political support could the Court be as effective as Warren wanted. And for the time being, the Court had precious little.
A few weeks after announcing Brown II, the Court recessed for the summer, and Earl and Nina Warren set off on an exploration of their family roots. It was their second trip to Scandinavia but their first since Warren’s appointment to the Court. They were hosted at embassies and Warren was greeted across northern Europe as more than a dignitary—rather, as something approaching the status of a liberator, a champion of freedom whose controversies and conflicts stayed behind in America. He and Nina stayed for more than a month, touring Sweden, Belgium, Luxembourg, Germany, and Austria before making their way home to California in August. It was the beginning of a regular summer travel tradition, one in which Warren would typically meet ambassadors and judge
s from the nations they visited; Nina would accompany him, and would keep in touch with the children and grandchildren by her regular postcards, which they would save and share upon the Warrens’ return.
Back home, the Warrens traveled to Santa Barbara for its annual “fiesta,” and then returned to Washington as the summer ebbed. As would also become his habit, Earl Warren made one last trip—this one on his own—before Court began its business in early October. He ducked out of the office with old friends to take in the World Series. This year, that meant a trip to New York, where Warren and pals from his California days took in games 3 and 4. The Dodgers fought off the Yankees in both games, winning the contests at their home park, Ebbets Field, despite lackluster playing by Jackie Robinson, whose historic career then was winding to a close. Warren returned after the Saturday game and gaveled the Court into its new session on Monday morning, refreshed and ready for a new term.21
WARREN WAS a national figure before Brown, an international figure afterward. And as such, politics continued to tug him back to his still-unfulfilled quest for the presidency. With 1955 beginning, the nation’s chief political question was whether Eisenhower would seek a second term; the president had made it clear that he felt his duty had been performed and that retirement was an attractive option for him. With his plans thus uncertain, two old rivals were thrown back into conflict.
