The anxiety of the Court in facing school desegregation became evident in June 1953. Although it had been mulling over the Brown case for six months, the Court announced that it would postpone its decision pending another round of arguments. The legal issues, and the social consequences, were too great for the Court to move rapidly. News reports hinted at divisions among the justices. It is also possible that Chief Justice Fred Vinson was looking for guidance from the newly installed Eisenhower administration. In announcing the postponement, Vinson invited Attorney General Brownell to file a brief as a “friend of the Court,” stating the opinion of the administration on the matter of segregation in public schools. The Court, it seemed, wanted to flush out the president rather than bear the burden entirely on its own shoulders.21
Eisenhower, who would have preferred to steer clear of the issue, was caught in a dilemma. While vacationing in Denver in mid-August he called Brownell to express his preference that the administration decline the request of the Court to file a brief. He even went so far as to dictate a “Memorandum for the Record” after the phone call, noting his own worry that the Court was unfairly asking him to put his thumb on the scale. Crucially and with great cunning, Brownell talked Eisenhower through the issue and persuaded him that, as attorney general, he could not possibly remain silent: it would be tantamount to shirking his duty. The Court had asked for advice; he must answer. Eisenhower relented and, from this point on, tried to deflect all public discussion of the Brown case onto his attorney general.22
Brownell took advantage of the leeway Eisenhower gave him. Working behind closed doors for three months with a team of Justice Department lawyers, Brownell did extensive research into the origins of the Fourteenth Amendment. In his brief he asserted that the purpose of Congress in framing the amendment in 1868 was clearly “to strike down distinctions based on race or color” and to establish “equality of all persons under the law.” The nub of the issue was this: Did this intent apply to public schools? Brownell admitted the record was inconclusive, but he claimed that Congress did not “enumerate in detail all the specific applications” of the law. Rather, the Fourteenth Amendment’s “great and pervading purpose” was “to establish complete equality for Negroes in the enjoyment of fundamental human rights.” If the segregation of public schools by state mandate resulted in any form of inequality, Brownell suggested, then it was necessarily unconstitutional and the Court must ban it.23
As Brownell was working on his brief for the Court, Washington was hit by the sudden death on September 8, 1953, of Chief Justice Vinson, of a heart attack at the age of 63. The significance of Vinson’s passing was enormous. Although an affable and decent Democrat from Kentucky, much liked personally by Eisenhower, Vinson had not been a success as chief justice. It was now up to Eisenhower to appoint a replacement, someone who might determine the outcome of the school desegregation case and who could shape the Court and the nation for decades to come. Ike’s choice, settled on quite rapidly, was Earl Warren.
Warren was a dignified national political figure. Tall, broad-shouldered, of Scandinavian descent, he was a three-time winner of the California governorship and a former state attorney general. He had been the GOP vice-presidential candidate in 1948 and had a reputation as a moderate and a man of integrity. Warren had challenged Ike for the GOP presidential nomination in 1952, but this former political rivalry did not hurt his standing with Eisenhower, who, after the general election, told Warren that he hoped to appoint him to the first vacancy on the Supreme Court.24
Part of Eisenhower’s enthusiasm for Warren sprang from his belief that Truman’s Supreme Court appointments had been undistinguished, going chiefly to political friends and cronies. Vinson had been a close friend of Truman’s in Congress. Tom C. Clark, appointed in 1949, had been Truman’s attorney general; he was a political “fixer” with no judicial experience. Sherman Minton was a New Deal liberal who was also a Truman pal from his Senate days. Even Harold Burton, the one Republican Truman appointed, had come from the Senate. Moreover the Court had been badly divided by ideological and personal feuds between Hugo Black and William O. Douglas on the one hand, and Robert Jackson and Felix Frankfurter on the other. The Court rarely voted unanimously, and Vinson was unable to impose any semblance of unity upon the fractious justices. This state of affairs deeply worried Eisenhower; he wanted men on the Court who were known for integrity, an absence of partisanship, and statesmanship.25
Yet, as is so often the case with Eisenhower, there was another angle to the story. The death of the chief justice came just as Brownell was writing his brief for the Court, and just weeks after Eisenhower had his sharp exchange with Byrnes about the role of the federal government in civil rights. Although civil rights concerns did not determine Eisenhower’s appointment of Warren, the president knew that these matters would come before the Court soon and he wanted at the helm a proven leader and a statesman—someone, as he put it to his brother Milton, who had been through “the hard knocks of a general experience” in politics. According to a later interview with Brownell, Eisenhower “studied Warren’s record long before he was appointed. . . . He admired the way that Warren had governed in California on a non-partisan basis.” And Eisenhower “knew about his civil rights record,” which was reasonably progressive. Warren was Ike’s man, and on September 30, 1953, the president announced his nomination. Congress was in recess at that moment, but Ike, aware that the desegregation cases were already under way, did not wait for Congress to come back into session. He made a recess appointment, and Warren took the oath of office a week later, without congressional approval.26
By the fall of 1953, then, Eisenhower had made some key decisions. He had used executive authority to push desegregation in the armed forces; he had aided those seeking to ban segregation in the nation’s capital; he allowed his attorney general to present an antisegregation argument before the Supreme Court; and he had appointed a noted California moderate as chief justice. All this on the eve of the arguments in Brown v. Board of Education. Perhaps Eisenhower began to feel things were moving too fast. On November 16 he called Brownell to reveal his own unease with the case. He worried that if Plessy was overturned, southern states might close public schools altogether rather than integrate them. Brownell, once again reassuring his chief that he was on the right path, told Ike that if the Court chose to strike down segregation in public schools, “it would be a period of years,” maybe 10 to 12 years, before integration would take place. Southern leaders like Byrnes could rest easy and “wouldn’t have to ‘declare war,’ so to speak.”27
But the southern leaders were growing anxious. On November 20 Byrnes and Governor Robert Kennon of Louisiana wrote direct appeals to the president to respect the right of states to run public schools. Kennon, a Democrat who had endorsed Ike in 1952, claimed that “a federal edict” on public schools, “contrary to the established order and customs,” would worsen race relations in the South. He went at one of Eisenhower’s soft spots, begging him to respect “states’ rights, local self-government and community responsibility.” Byrnes echoed the same points: “States should have the right to control matters that are purely local.” Eisenhower must have felt great pressure: he did believe in states’ rights and local responsibility, yet his attorney general, a man he admired and to whom he had given control of the brief, told him the Constitution did not allow states to impose racial segregation.28
Defying the opinions of his southern friends, Eisenhower backed Brownell. The attorney general’s brief, filed on November 27, was a bombshell. “GOP Backs NAACP,” announced the Pittsburgh Courier in a banner headline. “Brownell Says Court Should Kill Jim Crow.” The president and attorney general “took a calculated and idealistic risk,” the newspaper observed, “in riding the trend of modern times.” Brownell had boldly confronted Plessy head-on by arguing that the issue at hand was not merely “equality as between schools; the Constitution requires that there be equality as between persons.” Many southerners h
owled at this idea. Governor Herman Talmadge of Georgia opined that Brownell was speaking for “radical elements” who “are vying with each other to see who can plunge the dagger deepest into the back of the South.” But the die was cast: the Eisenhower administration had decided that racial segregation in public schools contravened the Fourteenth Amendment.29
Personally, however, Eisenhower never seemed comfortable taking ownership of the issue. Quite the contrary, in fact. After conferring with Brownell by telephone on December 2, when the two men discussed how to respond to Governor Byrnes, the president sent a letter to Byrnes in which he distanced himself from the Brown case. Because the question of the legality of segregation in public schools was a matter for “lawyers and historians,” he had been “compelled to turn over to the Attorney General and his associates full responsibility in the matter.” Brownell, in writing his brief and advising the Court, had acted “according to his own convictions.” This was a remarkable statement: the president asserted that he had delegated one of the most explosive issues facing the nation to his top legal officer. His convictions—not Eisenhower’s—would shape the administration’s position.30
On May 17, 1954, in a unanimous decision written by the new chief justice, the Supreme Court ruled that the segregation of schoolchildren by race “deprived the children of the minority group of equal educational opportunities.” To separate students solely on the grounds of race “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” The Court’s peroration was a damning indictment of the entire structure of Jim Crow segregation: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” There was one note of uncertainty in the Court’s decision. Taking into account the administrative complexities involved in integrating schools, the Court announced its intention to hear further arguments on how to implement the decision. These arguments would not come for some months; indeed it was not until May 1955 that the Court would address this question fully. Yet this element of caution could not obscure the basic fact: after more than half a century, the nation’s highest court had faced American apartheid squarely and condemned it.31
It would be wrong to give Eisenhower the credit for the Brown decision. That must go above all to the courageous plaintiffs in the separate cases and to the leaders of the NAACP, especially Thurgood Marshall, who over many years had built a legal strategy designed to confront and overturn Jim Crow segregation in the United States. Brown was their victory. Yet Eisenhower—perhaps despite his inner convictions—played a crucial role in the story nonetheless, especially by appointing Brownell to run the Justice Department and by placing Earl Warren on the Supreme Court. Things might have worked out quite differently if Eisenhower had named John Foster Dulles, or a southerner he was considering, Judge John J. Parker of North Carolina, as chief justice. At various stages along the way, Eisenhower could have used his power to halt progress. He didn’t. Perhaps the best that can be said is this: Eisenhower did not lead the nation toward civil rights reform, but he could sense which way history was moving and did not wish to be left behind.32
V
“May 17, 1954, was one of life’s sweetest days,” wrote Roy Wilkins, the NAACP leader, three decades after the Brown decision. “For 58 miserable years” black Americans had suffered under the humiliation of legal segregation. In the Jim Crow South, he wrote, “we had been squeezed into the hollows, alleys, and back streets across the tracks; there we sat in the back of the bus; there for every white man, no matter how low, who passed by, we had to step off the sidewalk, remove our hat, and say ‘Sir.’ ” But now, after Brown, “the law was on our side.” Wilkins recalled going home and having a glass of Scotch with his wife, Minnie, and drinking a toast to Earl Warren.33
It looked like a new day to the African American press too. The Pittsburgh Courier printed an editorial titled “Let’s Give Thanks,” asserting that the Brown decision was “the most important affirmation of the ideals of our country since the Emancipation Proclamation.” The paper called for a day of prayer and thanksgiving, and acclaimed the role of the president: “Negroes should thank the President of the United States, Dwight D. Eisenhower, for placing this administration in the forefront of the struggle.”34
Two days after the decision, Eisenhower held a press conference. The remarks he made about Brown at this gathering of reporters have sometimes been used by historians to suggest that he was dissatisfied with the decision. But the evidence is open to interpretation. The context is crucially important, for by coincidence, May 17 was a historic day not only because of the Brown ruling. That same day Eisenhower had issued his famous letter insisting on executive privilege with respect to the army-McCarthy hearings, ordering Defense Department personnel to refuse any summons or inquiry from McCarthy’s committee. It was a major news story, every bit as big as the Brown ruling, and in fact it preoccupied Eisenhower and his staff. On May 18, when Ike met with press secretary Hagerty to plot answers for the upcoming press conference, they were chiefly concerned with the issue of executive privilege and how to handle it with the press. Only after working on that issue did they turn to Brown. Hagerty’s diary records the tenor of the discussion: Eisenhower “would simply say the Supreme Court is the law of the land, that he had sworn to uphold the Constitution and he would do so in this case.” Ike also told Hagerty of his worry that “some of the Southern states will take steps to virtually cancel out their public education system,” a move that would “not only handicap Negro children but would work to the detriment of the so-called ‘poor whites’ in the South.”35
The president had sound reason for concern. Even before the Brown decision, a number of southern governors had declared their intention to block integration by closing public schools altogether. Ike rightly feared the consequences. Does this mean he would have preferred that the Court sustain Plessy? Certainly not, and the evidence for this is clear: he had approved Brownell’s powerful brief for the Court in favor of banning segregation.
When the press conference took place at 10:30 a.m. on May 19, the reporters who gathered in the Indian Treaty Room were in a high state of excitement about the president’s recent pronouncement on executive privilege. The first five questions were on this topic, and Eisenhower stood his ground, affirming the importance of the division of powers between the Executive and Congress. He spoke at length on the subject and insisted that whatever discussions had been held in the Executive branch concerning Senator McCarthy’s hearings were off limits to congressional investigators. Reporters from the Associated Press, the New York Post, the International News Service, the New York Times, and the Washington Star concentrated their fire on this issue, consuming well over half of the press conference. Only then did a reporter from South Carolina, Harry Dent, ask the president if he had “any advice to give the South as to how to react to the recent Supreme Court decision.” Eisenhower replied, “Not in the slightest,” and praised South Carolina governor Jimmy Byrnes for adopting a moderate position in his own public remarks on the decision. Byrnes, Ike said, had advised South Carolinians to “be calm and be reasonable.” (In fact Byrnes had not been so temperate; Ike was attributing to him more generosity of spirit than he really showed.) For his part, Eisenhower said, “the Supreme Court has spoken and I am sworn to uphold the constitutional processes in this country; I will obey.”
Was this statement an attempt to undermine Brown? It was a curt, perhaps strained reply given the significance of the Court’s decision, but it was consistent with the words he and Hagerty had planned to use with the press. It was also consistent with his view that the president must not make Supreme Court decisions into partisan political issues. When Dent asked Eisenhower if his Republican administration would pay a political price among southerners for the decision, Ike bristled: “The Supreme Court, as I understand it, is not under any adm
inistration.” The decision was out of his hands, and voters could draw their own conclusions.36
These comments have irked historians for many years. Stephen Ambrose, a prominent (and usually obsequious) biographer, wrote in 1990 that Eisenhower’s “refusal to lead [on civil rights] was almost criminal.” Eisenhower’s failure to laud the Brown decision “did incalculable harm to the civil-rights crusade and to America’s image.” No doubt, looking back many decades after the fact, Eisenhower’s reserve in this press conference, and in his later handling of desegregation, strikes the modern observer as lacking sufficient zeal and certitude. At the time, however, he appeared to be taking important strides in support of civil rights. After 80 years of inaction, the federal government and Supreme Court seemed to have found new urgency in facing up to segregation. Eisenhower’s actions—appointing Warren, allowing Brownell to argue in favor of overturning Plessy, stating his constitutional responsibility to uphold the Court’s decision, insisting that Washington initiate desegregation of schools immediately after Brown as a model to other cities—were seen in 1954 as evidence of the president’s willingness to support civil rights progress.37
Nor is there much evidence that Ike resented Warren’s handling of Brown. In fact he told Hagerty a month after the decision of his satisfaction with Warren: “I wanted a man to serve as Chief Justice who felt the way we do and who would be on the Court for a long time. . . . I am glad I made the decision.” Later that fall, in a letter to Swede Hazlett, he described Warren as “a man whose philosophy of government was somewhat along the lines of my own.” Ike disowned neither Warren nor Brown.38
Southerners certainly did not see Eisenhower as moving slowly on civil rights. Quite the contrary. Governor Byrnes said he was “shocked” by the Brown decision and asked “how long . . . local government [could] survive” in the face of such powerful assaults on states’ rights. He did urge the public to show “restraint” and to “preserve order,” but his administration had already secured approval from voters to close public schools rather than integrate them. Governor Talmadge considered the ruling tyrannical and unjust and promised that Georgians would “fight for the right under the United States and Georgia Constitutions to manage their own affairs.” He vowed “continued and permanent segregation” in Georgia. Senator Richard Russell, the powerful Georgia Democrat, denounced Brown as a “flagrant abuse of judicial power” and spoke of the “tendency of the Court to disregard the Constitution.” The Court had become nothing more than a “pliant tool” and “the political arm of the Executive branch.” Senators Harry Byrd of Virginia and James Eastland of Mississippi made similar remarks. Southern leaders now saw they could expect no help from the White House.39
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