Justice for All (66 page)

Chapter 19

RESISTANCE

GOVERNOR GEORGE WALLACE, BLOCKING ENTRANCE
TO THE UNIVERSITY OF ALABAMA
¹

 

 

 

 

 

 

B
ROWN V. BOARD OF EDUCATION
had many contributors, but in the end it was Warren's feat. Its unanimity was his singular accomplishment. Beyond that, the opinion itself expressed much of what constituted his most impressive self. It was restrained, committed to principle, self-conscious of political ramifications. It was, above all, fair. He had aimed to expand the reach of liberty and to codify the Declaration of Independence's great promises. In that, he largely succeeded. But Warren's concern for the politics of
Brown
also had convinced him it was important to offer gentle encouragement to moderates, particularly in the South, so that they would lead the way to the liberty that the Court commanded. In that, he did not succeed, at least in the short run. And he had himself to blame, in part. For just as
Brown
's strengths were Warren's, so too were its weaknesses.

Among the first to spot the vulnerability of
Brown
was the
New York Times
's James Reston. Reston was a sparkling little Scotsman, irrepressible in pursuit of a story and bitingly intelligent. In 1954, he was coming into his own as the greatest reporter of his generation, emerging from Lippmann's shadow, awing Washington with his diverse, well-connected sources, and seducing readers with his easy command of language. Reston was versatile—he had started as a sportswriter and had worked as a correspondent in London, where in 1937 he had confronted a surly Justice Hugo Black with questions about Black's prior membership in the Ku Klux Klan. Since returning to the United States, Reston had mastered many things but understood few more thoroughly than politics. He watched Warren settle into the Court and greeted the early indicators with approval, reporting just days after Warren's confirmation that the other justices appreciated their new chief's hard work and friendly manner as well as his “self command and natural dignity.”
²
As that column made clear, Reston could penetrate even the most cloistered institution. And as Reston read
Brown
the day the decision was announced, he grasped that its significance—as well as its underpinnings—went beyond the law. The decision, Reston wrote in the next morning's
New York Times,
“read more like a paper on sociology than a Supreme Court opinion.”
³
Reston made that observation appreciatively; indeed, he closed his column by favorably quoting the revered justice Benjamin Cardozo: “The final cause of law is the welfare of society.”
⁴

Reston welcomed the Court's sociology, for Reston, like Warren, was a man of basic values. He appreciated fairness and saw its evidence in
Brown.
Others, once clued in to
Brown
's sociological premises, were not so understanding. For those critics, the sociology of
Brown
was that of an amateur outsider, no more valid than the South's own social structure. They had a point. The Court's legitimacy is based on its legal reasoning, not its sociological expertise. And sociological convictions can change, raising difficult questions for the law. Sociologists had concluded that segregation was bad for black children, and the Court had at least in part relied on that finding to hold it unconstitutional. What, then, if sociologists were someday to decide that segregation was good. Would it then become constitutional again?

As Southern leaders mounted their campaign to discredit
Brown
and the Court that wrote it, they were aided by a tool that Warren inadvertently provided, what was to become the notorious footnote 11.
Brown
's eleventh footnote cited neither precedent nor legal text; instead, the Court reached to a collection of psychological and sociological works, most controversially Myrdal's
An American Dilemma
. The footnote appeared near the end of the short decision and was offered merely to support the District Court finding of fact in the Kansas case: “Segregation of white and colored children in public schools has a detrimental effect upon the colored children.” After listing six psychological and sociological studies, the note then glibly tacked on Myrdal's work under the heading of “See generally.”
⁵
That was not only provocative. It also was gratuitous. What footnote 11 suggested was what many Southerners suspected: the Court was striking down school desegregation not because the law commanded it but because modern experts no longer approved of it.

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 conservative, 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.