BY CLINTON DICK
Harvard Law School began their celebration of the fiftieth anniversary of the Brown v. Board of Education Supreme Court decision with a talk on Monday by University of Virginia School of Law Prof. Michael Klarman on “Why Brown was a Hard Case.” The celebration will continue throughout the week, culminating in a Saturday morning discussion with Brown lawyers and an impressive list of law school professors, both from HLS and elsewhere, talking about the desegregation decision.
“Fifty years later we assume the Court will do things like Brown,” but that was not necessarily the case when the decision was handed down, Klarman explained, beginning his fast-paced discussion of how the justices originally lined up when Brown was first argued in late 1952. “There is a tendency for us to assume Brown could not have been a hard case,” Klarman said, especially since unanimity to many of us denotes that it was easy, which is misleading.
Klarman devoted most of his time to showing how the Court was splintered in 1952, not only as to the issue of segregation in public schools, but generally as well. “This is the most divided Court and they are getting a lot of newspaper attention for their many dissenting and concurring opinions,” said Klarman.
The professor mainly drew his points from conference notes taken by Justice Douglas, who had turned them over to the Library of Congress. The four-page handout Klarman provided was a list of the nine justices who originally heard the Brown decision and Douglas’s notations as to how those justices were leaning in the case.
Of the nine justices in 1952, according to Douglas’s notes, Chief Justice Vinson wanted to reaffirm the 1896 segregationist decision Plessy v. Ferguson, Douglas, Burton, Minton, Black wanted to overrule it, and Frankfurter, Jackson, Clark and Reed were unsure of what outcome they favored.
But it is unclear how the case would have came out after this conference because, unlike most Supreme Court conferences there was no vote after deliberations. Klarman explains that there were two reasons why they did not want to vote after conference: “Confidentiality, because they were afraid it would get out and, two, because they wanted to maintain fluidity” in that they would keep discussing the case and they did want to entrench each other in their opinions.
Still, the case seemed far from the unanimity that was exhibited over a year later, as detailed in Douglas’s notes: “So as a result of the informal vote at the 1952 conference, it seemed that if the cases were to be then decided the vote would be five to four in favor of the constitutionality of segregation in the public schools in the States with Frankfurter indicating he would join the four of us when it came to the District of Columbia case.” The latter case was based on the due process clause of the Fifth Amendment and not the Fourteenth Amendment.
The reasons for upholding or striking down segregation were also so varied that unanimity seemed even more distant. Jackson was inclined to issue a warning to the South with respect to segregation, Black was concerned about instigating violence in segregationist states, Frankfurter could not find any history that the Fourteenth Amendment was meant to abolish segregation, while Clark thought if desegregation was ordered lower courts should be given “the right to withhold relief in light of troubles . . . otherwise he would say we had led the states on to think segregation is OK and we should let them work it out,” according to Douglas’s notes.
“How do we get to unanimity from such division,” Klarman asks rhetorically. Vinson dies and President Eisenhower appoints Earl Warren Chief Justice. The case is reargued in December 1953 and Warren approaches the case with the notion that segregation cannot be sustained in that day and age. With a majority now certain Warren pushes for unanimity. “They don’t want the South to have anything to latch onto,” says Klarman, meaning any dissent could be quite powerful among those who will resist the Supreme Court’s order. “The justices feel like if there is any dissent there is less chance this thing will stick.”
“Warren and the other justices work on Reed for the rest of the term, though he was not persuaded by the argument,” but he signed onto the majority opinion for the good of the Court. With the outcome decided, Klarman continues, Jackson and Clark do not want to waste capital fighting this so they sign on as well.
It was most surprising to many that the conservative justices, Minton and Burton, were inclined to end segregation in public schools when the case was first argued. Given that these justices tended to rule for the government on law enforcement issues, Klarman said, “Why suddenly are they siding with the litigant against the government?” Klarman frames his answer in light of the Cold War. The US was competing with the USSR for the allegiance of the Third World and most of that world was not white, Klarman says, and any time there was a high profile racial incident in the US the Soviet Union would highlight that for the rest of the world. “The State Department thought this was killing the US.” Minton and Burton, therefore, thought they were benefiting the country globally by removing this thorn from the side of the U.S.
Also interesting was the impact the Nazi regime the U.S. had defeated less than ten years earlier had on the Court. Jackson had left his post at the Supreme Court for one year to become the lead prosecutor at the International Military Tribunal, or the Nuremberg Tribunal, which tried the major Nazi defendants. Although “Jackson did not think his personal values were relevant,” Klarman says, he quotes the justice as saying, “‘Those of us who saw the racial policies in Germany can have no sympathy for policies of segregation.'”
In the end Klarman said we should think about Brown as part of an ongoing civil rights movement that was already under way by 1954. “It is wrong to see Brown as the origin of the civil rights movement,” the professor said. The justices fully appreciated how much change had already taken place. “They saw themselves as piggy-backing on those changes.”