When the nine U.S. Supreme Court justices first met to discuss public school segregation, there were only four certain votes to abolish the practice. Justice William Douglas later wrote that three members of the Court, Chief Justice Fred Vinson and Justices Stanley Reed and Tom Clark, were inclined to uphold Jim Crow, while two others, Felix Frankfurter and Robert Jackson, “expressed the view that segregation in the public schools was probably constitutional.” Though Frankfurter offered a different account shortly after the Court handed down its decision in Brown v. Board of Education, claiming that he would have provided the fifth vote in favor of integration, that still means that the Court’s vote in this seminal case balanced on a knife’s edge.
Yet the path to the Court’s unanimous decision concluding that “in the field of public education, the doctrine of ‘separate but equal’ has no place” — a decision that turns 61 this Sunday — was even more precarious than Douglas and Frankfurter’s notes suggest. It traveled through a fatal heart attack that felled a sitting chief justice, a former Ku Klux Klansman’s dramatic change of heart, and a choice that President Dwight Eisenhower later labeled the “biggest damned-fool mistake I ever made.” Indeed, were it not for a series of unpredictable events, as many as eight justices may have voted to uphold segregation.
The halo of the Warren Court — the era from 1953 to 1969 when Chief Justice Earl Warren served as the nation’s highest jurist — still looms over the liberal imagination. Yet, as I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, this era when the Supreme Court broke down racial apartheid and invigorated long-dormant constitutional rights, was a great anomaly in the Supreme Court’s history. It also was an historic accident — or, rather, the product of a long chain of accidents. But for this chain of unlikely developments, much of the progress of the Warren era would have never occurred.
Jimmy Byrnes was a bigot. He had to be if he hoped to win election in a Jim Crow state whose constitution spun a web of literacy tests, poll taxes, residency requirements and all-powerful election managers — all to keep South Carolina’s black majority from casting a vote. As a congressman, he told his colleagues that rape “is responsible directly and indirectly for most of the lynching in America,” and he opposed conscription because he feared that it might lead to white Southerners serving alongside African Americans. When an epidemic of racial violence broke out shortly after World War I, Byrnes blamed it on black veterans and called for African Americans who advocated racial equality to be deported.
These racist views, however, did not prevent Byrnes from becoming one of America’s most successful politicians. Over the course of his career, he served in both houses of Congress. He served as President Harry Truman’s Secretary of State and he managed the nation’s domestic readiness for World War II under President Franklin Roosevelt, a position which wielded so much power that the press labeled Byrnes the “assistant president.” When Brown reached the Supreme Court, Byrnes was the governor of South Carolina. With Byrnes as its chief, the state hired one of the best lawyers in the nation — a former United States Solicitor General — to defend its segregated schools.
Byrnes also held one other very high position in government. For 15 months in 1941 and 1942, Byrnes was an Associate Justice of the Supreme Court of the United States.
Byrnes left that role in favor of the “assistant president” job that placed him at Roosevelt’s right hand. Had he remained, however, he would have almost certainly voted to uphold segregation. Though he was long gone from the Court by the time Brown reached his former colleagues, Byrnes remained friends with his fellow Southerner, Justice Hugo Black. The governor warned the justice that, if the Court did order South Carolina to integrate its schools, the state might eliminate its entire public school system first.
The Supreme Court seat that was briefly held by Byrnes later passed to Justice Wiley Rutledge, and then to Justice Sherman Minton upon Rutledge’s death. Minton was one of the four certain votes in favor of desegregation. Had Byrnes remained on the Court, that vote would have almost certainly remained with the pro-segregation camp.
Though the two men were friends, Justice Black did not share Byrnes’s views on Brown — Black was another of the four certain votes for equality in Brown. Yet no one would have guessed that Black would emerge as one of the Court’s staunchest opponents of segregation based on his record prior to becoming a justice.
As a U.S. Senator from Alabama, Black captured the strange mix of racism and populism that animated many Southern lawmakers of his era. A month after Roosevelt’s election to the White House, Black tried to preempt the first round of New Deal legislation with a bill that would have limited the nation’s work week to just 30 hours — the idea was to create new jobs by spreading existing positions across more workers. Yet he also led a filibuster against anti-lynching legislation a few years after Roosevelt took office.
As a defense attorney in Birmingham, Black defended a Ku Klux Klansman who murdered a Catholic priest after the clergyman married the Klanman’s daughter to a groom of Puerto Rican descent. Appealing directly to the jury’s racism, Black told jurors that Puerto Ricans were of mixed race and should be considered black. In his closing argument, Black quoted the Klan’s official prayer. And the defense worked — the jury voted to acquit.
In 1923, Black joined the Klan himself. When Black first ran for Senate, the Grand Dragon of the Alabama Klan served as Black’s de facto campaign manager, and Black won by his widest margins in the areas with the highest Klan membership. Shortly after his confirmation to the nation’s highest Court, Black’s Klan membership became a countrywide scandal, and he repudiated his ties to the terrorist organization in a national radio address. “Many members of the colored race” are my friends, Black told the nation, and “some of my best and most intimate friends are Catholics and Jews.”
Black’s early record on the Court did not suggest that this attempt to distance himself from his racist past was particularly sincere, however. He authored the Court’s infamous decision in Korematsu v. United States upholding Japanese American internment camps.
Justice Black, however, matured into the Court’s staunchest defender of a liberal form of textualism. He was the first modern justice to argue that the panoply of safeguards contained in the Bill of Rights must be honored the the states (for much of American history, only the federal government was considered bound by the Bill of Rights). “To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced,” Black wrote in a dissent laying out his vision for a Bill of Rights restored, “is to frustrate the great design of a written Constitution.”
This belief that, when the Constitution says that a right must be protected, it means it must — a surprisingly radical view in Black’s era — also animated his thinking in Brown. The purpose of the Fourteenth Amendment, Black told his colleagues when they met to discuss school segregation, was the “protection of the negro against discrimination.”
Black’s evolution, however, could hardly have been predicted based on the man he had been prior to becoming a justice.
The Failed Nominee
When Justice Edward Terry Sanford died in 1930, President Herbert Hoover’s first choice to replace him was a federal appeals judge from North Carolina named John Parker. Parker, however, quickly faced opposition from labor, who pointed to his decision upholding an injunction prohibiting unions from organizing many West Virginia mine workers, and from the NAACP, who pointed to Parker’s past statements that “the participation of the negro in politics” is “a source of evil and danger to both races” that is “not desired by wise men.”
By white Southern standards, Parker was actually a relative moderate on the issue of race. Still a judge in 1952 as Brown was making its way up to the Supreme Court, Parker wrote in a related case that a South Carolina school district had not lived up to the “equal” prong of “separate but equal,” and he ordered the state “promptly to furnish to Negroes . . . educational facilities and opportunities equal to those furnished white persons.” Three years later, however, Parker joined an influential decision interpreting Brown that permitted segregated schools to remain segregated so long as the school district gave students the option of voluntarily transferring to another school. This enabled the Klan to maintain segregation by terrorizing African American students into remaining in black schools.
So, while Parker showed some commitment to the “equal” prong of separate but equal, he also did as much as any judge in America to maintain the “separate” prong. It is likely he would have behaved similarly had he been confirmed to the Supreme Court. After Parker’s nomination failed, Hoover successfully appointed Justice Owen Roberts, who left the Supreme Court in 1945. Roberts’s replacement, Justice Harold Burton, was one of the four certain votes for desegregation.
It is not hard at all, however, to imagine an alternative history where Parker was confirmed. His nomination to the Supreme Court was defeated by just one vote.
For the first third of the twentieth century, the Supreme Court was a cesspool where basic human rights festered and decayed. The Court struck down a federal child labor law, thereby dooming countless young Americans to spend their childhoods in coal mines, cotton mills and other factories. It blocked minimum wage laws and stripped workers of their right to organize. A nearly unanimous Court blessed eugenics in the forced sterilization case Buck v. Bell.
Justices Frankfurter and Jackson both came of age in this world, and it taught them a healthy fear of judicial power.
Personally, both men were quite liberal by the standards of the era. Before joining the Court, Frankfurter helped found the ACLU and he served on the NAACP’s National Legal Committee. He was also the first justice ever to hire an African American law clerk (Frankfurter’s liberalism, it should be noted, did not extend quite so far to women. He refused to hire a talented young clerkship applicant named Ruth Bader Ginsburg). Jackson held similarly liberal views on the issue of race, views that were crystallized by his experience prosecuting Nazi war criminals.
When Brown reached the Court, however, both men appeared to have overlearned the lessons of an era when conservative justices routinely wrote their own preferences into the law, and they were determined not to do so themselves in the school desegregation case. “However passionately any of us may hold egalitarian views,” Frankfurter wrote while Brown was pending, a judge “travels outside his judicial authority if for this private reason alone he declares unconstitutional the policy of segregation.” Jackson offered a similar warning, explaining that “policy decisions by the least democratic and the least representative of our branches of government are hard to justify.”
Neither Frankfurter nor Jackson were assured votes against desegregation, but they were both deeply conflicted about Brown, and it is impossible to know with absolute certainty how they would have voted if a fatal heart attack had not broken the impasse.
Nine months after the Court first heard arguments in Brown, Chief Justice Vinson died suddenly at the age of 63 (in a possible sign that Frankfurter had already decided to side with integration in Brown, he reportedly quipped that Vinson’s death was “the first solid piece of evidence I’ve ever had that there really is a God.”)
President Eisenhower, in what may have been payback for political maneuvering by California Governor Earl Warren that helped Eisenhower clinch the Republican presidential nomination in 1952, named Warren as Vinson’s replacement. When the newly constituted Warren Court met once again to discuss the fate of Brown, the new Chief Justice immediately cast his lot against Jim Crow. “We can’t set one group apart from the rest of us and say they are not entitled to [the] same treatment as all others,” Warren told his new colleagues.
The significance of Warren’s pronouncement was obvious to each of the other eight justices. A year ago, under Vinson’s leadership, there were only four certain votes to end school segregation. Now the only question was whether the justices would stand together when they stuck the knife in Southern apartheid.
The value of unanimity was not lost on the members of the Court. Justice Clark announced that he would support a decision striking school segregation — provided that the Court did not require the South to change too quickly — almost immediately after Warren’s vote made the outcome in Brown inevitable. Justice Frankfurter told a former law clerk that he feared a divided decision could trigger such resistance from the South that the Court’s order would become unenforceable. When Justice Reed was the lone holdout preparing a dissent upholding segregation, Warren dissuaded him with a warning — “Stan, you’re all by yourself in this now.” Not wanting to bear the blame for the South’s backlash against Brown, Reed signed onto Warren’s opinion.
Justice Jackson, who’d been confined to a hospital bed for nearly two months due to a heart attack of his own, defied his doctor’s orders and returned to the bench for the day Brown was announced. He too wanted to present a united bench on the day the Court struck down one of the core elements of Jim Crow.
Yet, while Warren’s elevation to the Supreme Court was the catalyst that led to the unanimous decision in Brown, it likely would never have happened if President Eisenhower had done a better job of vetting nominees. Eisenhower, of course, labeled the Warren appointment the biggest mistake of his presidency, although scholars disagree about whether this is because Eisenhower disagreed with Brown or because of other concerns. One piece of evidence that supports the former theory, however, is a conversation the president had with the sitting chief justice at a White House dinner. Southern whites, Eisenhower told Warren during this dinner, “are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.”