Justice for All (73 page)

Hatred is the force of a mob. Cowardice is just as surely the essence of its character. The arriving soldiers were greeted with derision. One popular sign among the demonstrators read, “Join the Army and See the High Schools!”
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But the protesters who were happy to stand up to unarmed high school students backed down in the face of rifles and bayonets. The Little Rock nine were escorted to school and guarded in classrooms. Integration, albeit nominal and at the point of a gun, had come to Little Rock.

Warren never commented on the Little Rock crisis of 1957 in public, but there is every reason to believe that he followed it intently. It was, after all, the culmination of the events that he had launched with
Brown
in 1954 as well as the consequence of Eisenhower's infuriating tolerance for Southern resistance. Moreover, Warren remained personally invested in the implementation of
Brown,
and even though his relations with Eisenhower were frayed, he remained in close contact with the administration through Brownell. On September 20, the same day that the district court in Little Rock ordered Faubus to back off, Warren had dinner with Brownell at Brownell's Washington home.
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Little Rock threatened to reerupt the next year, and local officials once again sought a delay from the district court, where they asked that integration be discontinued for two years and the Negro students already admitted to Central High be resegregated and sent to black schools. (Of the original nine, one had graduated and one, Minnie Jean Brown, had let down her guard for one moment. After months of silence, she snapped back when a white student called her a “nigger bitch.” Minnie responded, “White trash,” and was expelled.)
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This time, the judge granted Little Rock's request, approving a two-year postponement in the desegregation effort in order to give the community time to cool off. The NAACP appealed, and the judge's delay order was overturned by the Eighth Circuit Court of Appeals. The Supreme Court then rushed into special session to consider the case and decide it in time for the new school year to begin.

Oral argument was set for August 28, and Warren hurried back to Washington from his vacation in California. He arrived on August 27, and met privately first with Black and then with Frankfurter. The following morning, he called the Court together into conference for an hour before he led the justices through the red velvet curtain. Thurgood Marshall was back again for the NAACP, and Richard Butler represented the Little Rock school board. Marshall was his comfortable self, graciously received and interrupted only occasionally as he rehashed arguments he had made before: The rights of the Negro boys and girls of Little Rock could not be placed on hold merely because the citizens of that city objected or because school or state officials believed more time would allow a smoother transition. The school district had used its time; now was the moment for implementation. “The rights we seek,” Marshall reminded the justices, who needed no reminding, “are rights that have been recognized by the federal courts.”

Butler knew he was arguing his case to an unsympathetic audience, but he managed through most of his time to make it without obviously agitating Warren or the brethren.
⁶⁴
That surface amicability broke down near the end, however, as Butler returned after lunch to conclude and quickly locked horns with Warren. Earlier, Warren had attempted to express the Court's understanding of Little Rock's difficulties, trapped as it was between a Supreme Court edict and a recalcitrant governor, but when Butler tried to turn that sympathy into a defense, Warren bristled.

“Regardless of whether or not the people of Arkansas
should
recognize the United States Supreme Court decisions as the law of the land,” Butler began, “the plain fact is that they
have not,
and it is most difficult for them to do so if not impossible when the governor of the state says that that is not the law of the land, that only Congress can really say what the law of the land is.” That would have been pushing his luck, but Butler then attempted to reach Warren by reminding him that he, too, had “been the governor of a great state.”

To equate Warren of California with Faubus of Arkansas was more than Warren would allow: “I never tried to resolve any legal problem of this kind as governor of my state. I thought that was a matter for the courts, and I abided by the decision of the courts, whether they were the courts of my state or, in their proper jurisdiction, the federal courts.”

Butler should have stopped there, but in the heat of his argument, he pressed on. “We all realize that, sir,” the lawyer insisted. “The point I'm making is this: that if the governor of any state says that a United States Supreme Court decision is not the law of the land, the people of that state, until it is really resolved, have a doubt in their mind and a right to have a doubt.” That was lunacy—the suggestion that a governor's publicly expressed doubts about the law meant that it was not “really resolved”—and it cut to the flaw in Little Rock's argument. If true, it meant that the Court's word on
Brown
was not in fact final until and unless Faubus said it was. Warren had heard enough of interposition and defiance. He could contain himself no longer.

“But I have never heard such an argument made in a court of justice before,” he said, his voice tight and his words coming unusually fast. “And I've tried many a case over many a year, and I have never heard a lawyer say that the statement of a governor as to what was legal or illegal should control the action of any court.”

Butler tried to dig himself back out, saying that he only was trying to point out that the people of Arkansas were understandably confused when their governor preyed on their hope that there was something not final about the word of the Supreme Court. They were particularly susceptible to Faubus's claims, Butler said, because he was a respected state leader. “The short answer to that,” Warren growled, “is that if they want to believe it, they'll believe it no matter who says it.”
⁶⁵
That was, for all practical purposes, the end of Butler's presentation and of his case.

So brusque was Warren with Butler that a legend has grown up around that day's argument. Often repeated is a reported exchange at the outset of the argument, when Butler was said to have begun by introducing himself as appearing “on behalf of the people of Little Rock.” At that, the legend has it, Warren interrupted to demand, “What people?” From which Butler is said never to have fully recovered.
⁶⁶
That exchange, though recalled by Ira Michael Heyman, a brilliant young man who clerked for Warren that term (and whose career soared afterward, eventually taking him to the head of Warren's alma mater, the University of California, Berkeley), is not borne out by the transcript or the tape recording of that day's argument. Yet its persistence says much about what those close to Warren saw of his mood in those weeks. Warren was a patient man, but Southern resistance had toppled his reserve.

After concluding the argument, the Court set a second session for September 11, determined to resolve the standoff in Little Rock before the beginning of the school year. That morning, before the lawyers came to Court, Warren met privately with Brennan. As he had demonstrated during the August oral argument, Warren was fed up—frustrated by a president who could only be goaded into action by a direct threat to his authority; furious at the presumption of Southern officials, even among the lawyers who appeared before him, that they could openly question the Court's authority; dumbfounded by the silly and dangerous spread of “interposition.” This case offered Warren and his brethren the chance to assert the Court's power and clarify the duty of others to accede. Frankfurter remained convinced that there was a viable political center in the South, and he hoped the opinion and the argument would reach those moderates; he went so far as to urge Warren to open the argument by complimenting Butler on the district's attempts to integrate.
⁶⁷
Warren disagreed. He was done urging.

Butler barely had a chance to present his argument, so often was he interrupted by the justices. He tried time and again to elicit sympathy for the school board he represented by pointing out that it was caught in the middle of a conflict between the state and federal governments, that it had tried to implement a desegregation plan but found itself thwarted by a governor who refused any integration and a federal government that insisted its courts be obeyed. For the Court to accept Butler's position it would in essence have had to agree that its own orders could be ignored. And Warren's unwillingness to do so was underscored by his barely suppressed fury that four years after it commanded desegregation, so many parties continued to avoid their duties under
Brown.
“If we stop that program [Little Rock school desegregation], we are denying this same right to approximately 40 percent of the children of your community, aren't we?” Warren asked Butler, referring to the Negro children of Little Rock.

“We take the position that you are not denying the right. You are delaying the fulfillment of a constitutional right which you have said they have,” Butler replied.

“Well, this decision, the
Brown
decision, was in 1954,” Warren said with a sigh. “This is 1958. Two and a half years will bring it up almost to 1961. Now if all those children are denied the right to go to the elementary schools, aren't they being denied permanently and finally a right to get equal protection under the laws during their primary grade years?”

“They would be deprived of the personal fulfillment of what we consider an intangible right expressed by this Court,” Butler said.

It took a moment for that to sink in, but Warren then pounced on Butler's revealing reply. “Why do you call it an intangible right?” he asked.

Butler was caught. “Well, I was distinguishing that as against monetary rights,” he responded lamely.

“If somebody was to deprive you of life, liberty or property, would that be an intangible right?” Warren asked. Butler's answer—“I did not have in mind that sense”—spoke volumes about the vacuity of his argument.

All that was left was for Thurgood Marshall to dispense with the notion that the Little Rock School Board deserved the Court's sympathy rather than its order. Marshall did so in fine fashion. Yes, he acknowledged, the past months had been difficult. There was the gauntlet of the previous year, the mobs, the troops, the threatening letters and phone calls. But there also were Negro children who had been promised an integrated classroom by the unanimous Supreme Court of the United States. They had entered those classrooms through mobs. And now Little Rock proposed to take them out again, to yield to the mob rather than to the pleas of those whose rights were being violated. They were not abstractions, those children. They were young boys and girls with constitutional rights. If that made life difficult for the school board, so be it. Marshall's best line summed up the case in three words: “Democracy is tough.”
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The second oral argument in
Cooper v. Aaron
was intriguing for what it said about Warren's mood, but the Court had already made up its mind, and announced its decision the following day. Little Rock officials were directed to proceed with integration; the district court's granting of the delay was overturned. It took a few more weeks for Brennan, working closely with Warren throughout, to polish his opinion—Harlan tried his hand at a draft as well, but the final work relied much more heavily on Brennan's approach.
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When it was released, it bore the earmarks of Warren's exhausted patience.
Cooper
asserted, once and for all, that the Court was the last word on the Constitution and that all officials, state and federal, must accept it. Enough of interposition, it effectively said: We are the law; you will obey. The opinion spoke that command most forcefully and eloquently in a passage written by Black and used at the outset:

 

After an exhaustive review of the facts and legal history of the case before it, the Court then upbraided Arkansas officials with a condescendingly rudimentary lesson in constitutional law—citing John Marshall for the elementary proposition that the Court interprets the Constitution and no intervening state authority may contravene that. Then, at the suggestion of Harlan, the opinion drew to a close by calling explicit attention to the unanimity of
Brown
and the continued unanimity of the Court despite the departure and replacement of three members of the original
Brown
Court. “Since the first Brown opinion three new Justices have come to the Court,” the opinion noted. “They are at one with the Justices still on the Court who participated in that basic decision as to its correctness, and that decision is now unanimously reaffirmed. ”
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Rather than merely bearing the name of its principal author, Brennan, and listing the other justices as having joined,
Cooper v. Aaron
was signed by all nine members of the Court, a legally meaningless flourish but a memorable one meant to highlight the Court's resolve even in the face of its changing membership.
Cooper
was about demonstrating that the Court meant business.