Adler: The Brown decision: Twists and turns shape the Constitution | Columns

The Supreme Court’s landmark ruling in the case of Brown v. Board of Education, the most-celebrated civil rights decision in our nation’s history, is a reminder of the unpredictable twists and turns that shape American constitutional law.

On May 17, 1954, the Court held that racial segregation of children in the public schools violated the Equal Protection Clause of the 14th Amendment. The Court’s denunciation of the separate-but-equal doctrine, which had provided the legal foundation for segregation in American life, began to open the gates of opportunity for Black Americans that had been closed since the dawn of the republic. No single judicial ruling could be expected to overcome the ills of racism, hundreds of years in the making, but Brown was a start. Indeed, it was a very good start.

Of all the remarkable dimensions of the Court’s ruling in Brown, perhaps the most remarkable was that it happened at all. But for the death of one Chief Justice, and the succession of a very different Chief Justice, the Court’s opinion in Brown v. Board of Education might well have upheld Plessy and the separate but equal.

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Brown represented the consolidation of four cases, dispersed across the country, that raised the constitutionality of state-ordered segregation in public schools. The cases were argued before the Court in December of 1952, which meant that its ruling would have been delivered at the close of the Court’s Term in June of 1952.

The Court, however, was deeply divided on the question. It emerged from the Conference discussion that four Justices wished to uphold Plessy. At the head of that bloc was Chief Justice Fred Vinson, a former Treasury Secretary nominated to the Court by President Harry S. Truman. Vinson had written the Court’s earlier opinions striking down segregation in higher education, but he appeared to his colleagues to be opposed to extending the reasoning and rulings to public education.

Chief Justice Vinson’s presentation at the Conference on Dec. 13, 1952, ignored the fact that the separate but equal doctrine had provided the foundation for racial discrimination in the South. He was not prepared to overrule Plessy v. Ferguson, particularly because there was a significant “body of law back of us on separate but equal.”

Justice Felix Frankfurter, who wanted to overturn Plessy, persuaded the Court to hold another round of argument, scheduling it for the 1953 Term, which would begin in October. Frankfurter hoped additional time and argument, accompanied by what he expected to be a supportive amicus brief from the incoming Eisenhower Administration, might win over his recalcitrant colleagues on the High Bench.

Frankfurter offered two plausible pretexts for the delay. First, the Conference had taken no vote, not even a tentative vote, on the segregation issue. Second, as Frankfurter pointed out, “no one on the Court was pushing” for a vote on the issue. Chief Justice Vinson was not eager to hold a vote that he might lose. And, even if a 5-4 majority could be mustered to overturn Plessy, such a thin margin would be regarded by the prevailing Justices, and certainly by many in the South, as an insufficient victory, one that might not inspire respect and adherence, and perhaps one soon reversed by a subsequent Court, all of which would undermine a ruling to strike down separate by equal.

The Court’s lack of insistence on a vote, moreover, reflected the Justices’ sensitivity to the cultural and political realities of life in the South that could not be ignored. Justice Hugo Black, born and raised in Alabama, predicted “violence and chaos” in the Deep South if the Court overturned Plessy.

The deeply divided Court thus faced not only the matter of deciding whether separate but equal violated the 14th Amendment’s Equal Protection Clause, but also the great challenge of fashioning a remedy, should the Court decide to overturn Plessy. While the Justices espoused varying doctrinal approaches to the task of constitutional interpretation, in this case, at least, they were all focused on the issue of the impact of their decision on the South.

Five weeks before Oral Argument, Chief Justice Vinson died suddenly from a heart attack. With his focus on the Brown case, Justice Frankfurter said in a private comment that since has become widely repeated, “This is the first indication I have ever had that there is a God.” Note to readers: this is not how we should wish to be remembered by our colleagues.

The twists and turns of life and death opened a vacancy on the Supreme Court to be filled by President Dwight D. Eisenhower. His nomination of Earl Warren, a former California Governor and Attorney General, and heralded as a conservative Republican, changed the direction of the Court and the future of the nation. We turn next week to the leadership of Chief Justice Warren in fashioning the Court’s unanimous decision to overturn Plessy v. Ferguson.

David Adler, PHD, is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. His scholarly writings have been cited by the US Supreme Court and lower courts by both Democrats and Republicans in the US Congress. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at [email protected]

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