A People's History of the Supreme Court

by Peter Irons

  Americans across the country witnessed Elizabeth Eckford’s, dignity in the face of lynch-mob hysteria, on their television screens. Many people had never seen the face of racism so clearly, and could not believe that “a man’s heart” could hold so much hatred for anyone’s child. The public also watched President Eisenhower playing golf in Newport, Rhode Island, unwilling to interrupt his vacation to deal with the most serious threat to federal authority since the Civil War. Pressure mounted on Eisenhower to intervene, but he took no action. National Guardsmen blocked Central High’s doors to the Little Rock Nine until September 20, when a federal judge ordered Governor Faubus to remove the Guardsmen. Little Rock police then escorted the black students into the school, but an unruly mob stormed the building and the nine youngsters barely escaped with their lives. Facing the prospect of televised lynchings, Eisenhower finally ordered army airborne troops into Little Rock. The city’s racists lacked the guts to battle paratroopers, and the Little Rock Nine finally began their classes. During the remainder of the school year, a band of white students harassed them unmercifully, while school officials turned their heads. On May 27, 1958, Ernest Green became the first black graduate of Central High; he later served as assistant labor secretary in Jimmy Corter’s cabinet.

  Also in May 1958, the Little Rock school board asked federal judge Harry Lemley to delay any further integration until January 1961. The board’s lawyers argued that school integration “runs counter to the ingrained attitudes” of many Little Rock whites. They also pointed to Governor Faubus, who had persuaded the Arkansas legislature to pass laws authorizing him to take over local school boards that admitted any black students to white schools. Faubus had also issued statements that the Brown decisions had no force in Arkansas. judge Lemley heard the board’s witnesses—all white—testify about the “chaos, bedlam, and turmoil” at Central High. He did not ask who had caused the chaos, but he granted the board’s petition on June 20, 1985. Lemley’s move precipitated a legal storm, as NAACP lawyers rushed between St. Louis, Little Rock, and Washington. They sought and obtained a stay of judge Lemley’s order from the Eighth Circuit appellate court, which reversed his order after a hearing. But the appellate judges later changed their minds and reinstated Lemley’s order. The NAACP lawyers then asked the Supreme Court to step in and end the legal chaos. Although the justices had scattered around the country during their summer recess, Chief justice Warren summoned them back to Washington for a “special term” on August 28. Little Rock schools were scheduled to open on September 15, and Warren wanted to decide the case before the class bells rang.

  William Cooper, the Little Rock school board president, and John Aaron, first in alphabetical order of the black plaintiffs, gave their names to Cooper v. Aaron. But the real parties were Orval Faubus and Earl Warren; this case was really a contest for supremacy between the defiant governor and the determined Chief Justice. All nice justices had answered Warren’s call and the returned to Washington for the oral arguments, which began with an appeal for delay by Richard Butler, the board’s lawyer. “All we’re asking,” he said, “is for time to work this thing out in a climate of calm rather than in a climate of hysteria.” Earl Warren listened politely to Butler’s assurance that he was not speaking for the “law defiers” in Little Rock. “I know you’re not,” Warren soothingly replied.

  The Chief’s soothing smile quickly faded when Butler spoke for the chief law defier in Arkansas. “The point I’m making is this,” Butler said, “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.” Warren exploded. “ I have never heard such an argument made in a court of justice before,” he shot back, “and I’ve tried many a case, over many a year. I 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.” The former California governor now wore a black robe, and would not tolerate this challenge to his authority

  Russell Baker, covering the hearing for the New York Times, reported that Thurgood Marshall took the podium with “the hint of a scowl on his face, looking like Othello in a tan business suit.” Marshall was just as angry as the Chief Justice, and his voice rose as he spoke for Little Rock’s black children. “ I think we need to think about these children and their parents,” he said, “these Negro children that went through this every day, and their parents that stayed at home wondering what was happening to their children, listening to the radio about the bomb threats and all that business. I don’t know how anybody under about the sun could say, that after all those children and those families went though for a year to tell them: All you have done is gone. You fought for what you considered to be democracy and you lost. And you go back to the segregated school from which you came. I just don’t believe it.”

  The justices did not believe it either, and they scolded Governor Faubus with a single voice. On September 12, the day after the Court heard a second round of arguments that largely rehashed the issues, the Court issued an unsigned order reversing Judge Lemley’s two-year delay. Central High could now begin classes, with two thousand white and nine black students. On September 29, the Court handed down its written opinion in Cooper v. Aaron. Never before—or since—has every justice personally signed an opinions. Richard Butlet had argued that Governor Faubus’s claim that Brown had no effect in Arkansas left its citizens “in actual doubt as to what the law is.” Warren proposed the collective opinion to remove any doubt.

  The justices professed astonishment that Faubus and Arkansas lawmakers would claim “that they are not bound by our holding in the Brown case.” The Court’s opinion treated the defiant officials like schoolroom dunces. It was their “determination to resist this Court’s decision in the Brown case” which had “brought about violent resistance to that decision in Arkansas,” the justices stated. Had the Arkansas officials not read the Constitution? Article VI “makes the Constitution the ‘supreme Law of the Land.’ ” Had they not all taken oaths “to support this Constitution?” The justices took out their rulers: “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” And who had the power to enforce the Constitution? “It follows that the interpretation of the Fourteenth Amendment enunciated in the Brown case is the supreme law of the land,” the justices told the Arkansas officials, Looking beyond Little Rock, the demanded “the obedience of the States” to “the command of the Constitution” that federal court orders must be obeyed.

  Despite this stern lecture, the Arkansas officials did not learn their lesson. Defying the Court once again, Governor Faubus and the state legislature closed down Little Rock’s schools for an entire year. Going back to federal court, NAACP lawyers won a ruling in 1959 that reopened the schools. By spring 1960, Central High had fifteen hundred white students and just five blacks. Litigation dragged on for years, raising the question once again: What good is the Constitution if government officials refuse to obey its commands? What the Arkansas politicians finally obeyed was not the Supreme Court, but the commands of public opinion. Little Rock’s voters finally tired of chaos and turmoil in their schools and voted in a new board that moved toward compliance with court orders.

  But in the Deep South, racist governors continued to defy federal judges. Ordered to admit James Meredith to the University of Mississippi in 1962 as its first black student, Governor Ross Barnett refused to comply so many times that Fifth Circuit judges held him in contempt, and committed him to “the custody of the Attorney General of the United States.” President John Kennedy told the attorney general, his brother Robert, to ignore the court’s order. Barnett continued to defy the courts, and Meredith began classes only after federal troops quelled a bloody riot that cost a news photographer his life. The violence began after the governor ordered state police to l
eave the Ole Miss campus, leaving the unarmed U.S. marshals who accompanied Meredith at the mercy of a howling mob. Barnett never spent a day in jail for his defiance. Emboldened by this example, Alabama governor George Wallace stood in a University of Alabama doorway in May 1963 to block the admission of two black students, Jimmy Hood and Vivian Malone. Only the presence of five hundred National Guarsmen prevented another Ole Miss riot. Wallace’s stand did not keep the black students out, but it won him half a million white votes in the 1964 Democratic presidential primaries. And in 1968, running under the banner of the American Independent Party, Wallace received almost ten million votes for president. Politicians are more often rewarded than punished for defying the Supreme Court; Arkansas voters gave Orval Faubus four more terms as governor after the justices ordered him to end his “war on the Constitution.”

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  “A Better Place Because He Lived”

  Southern defiance of the Brown decisions produced bloodshed and even death before the last redoubts of segregation capitulated to judicial orders in the late 1960s. But those decisions were not, in fact, the most widely defied of the Warren Court’s many controversial rulings.That dubious honor goes to the school prayer decisions of 1962 and 1963. Striking down first a state-composed prayer and then Bible reading and the Lord’s Prayer, the Court ruled that these practices violated the First Amendment’s prohibition of any “establishment of religion” and breached the “wall of separation” between church and state. The Court’s first batch of religion cases, decided in the late 1930s and early 1940s, had mostly involved Jehovah’s Witnesses and raised claims under the First Amendment’s clause that protects the “free exercise” of religion; the Court had ruled that licensing fees and other restraints placed on Witnesses had infringed their freedom to exercise their religious beliefs

  A second round of cases began after World War II and largely involved Roman Catholics, whose numbers grew rapidly with the postwar baby boom. Swelling enrollments in parochial schools created financial burdens on churches and parents, and several states responded with tax-funded subsidy programs. Some gave direct benefits to schools, such as textbooks and teacher salaries; others made it easier for parents to afford private schools. New jersey, for example, reimbursed parents for their children’s bus fares to both public and parochial schools. Illinois public schools brought Catholic, Jewish, and Protestant instructors into classrooms; parents chose between religion classes or secular courses for their children during “released-time” programs.

  The Supreme Court decided the New Jersey and Illinois cases differently. Justice Hugo Black wrote for the majority in both, picking a careful path through unfamiliar terrain. His opinion in Everson v. Board of Education, decided in 1947, upheld the bus-fare subsidy. Black admitted that New Jersey helped Catholic children “get to church schools.” But the state also helped children get to public schools, aiding “all its citizens without regard to their religious belief.” The Establishment Clause, Black wrote, “requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary.” Despite this “accommodation” of religion, Black stressed that states cannot “pass laws which aid one religion, aid all religions, or prefer one religion over another.” Nor can states “support any religious activities” that “teach or practice religion.” Black looked for authority to President Thomas Jefferson’s letter in 1802 to the Baptists in Danbury, Connecticut, who had complained about being taxed to support the established Congregational churches. Jefferson replied that the First Amendment had constructed “a wall of separation between church and state,” a barrier that kept both preachers and politicians from trespassing on each other’s domain.

  Writing again in 1948 for hte Court in McCollum v. Illinois, Black struck down the “released-time” program because tax-supported schools were “used for the dissemination of religious doctrine” in classrooms. Quoting Jefferson again, Black held that such “direct” benefits to religion breached “the wall of separation” that New jersey’s bus-fare subsidy had skirted as an “indirect” benefit to parochial schools. Later decisions tried to clarify the “direct-indirect” benefit distinction, but failed to provide a clear-cut standard. While the Court looked for a middle road, conflict between religious “separationists” and “accommodationists” mounted in the 1950s. John F. Kennedy’s election in 1960 as the first Catholic president brought simmering religious disputes to a political boil. The Warren Court finally caught the heat over the emotional issue of school prayer.

  “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, and our teachers.” This prayer was adopted in the 1950s by the New York Regents, who control the state’s education system. It would be hard to imagine more innocuous words. What parent could object to his or her child’s reciting this prayer? Many people would be genuinely puzzled by this question, but others are offended by even this generic prayer. Atheists would reject any reference to “God,” agnostics would be doubtful, and some devout believers—of many faiths—feel that vocal prayer should be confined to home and church and not imposed on children in public schools.

  Steven Engel and nine other parents in the Long Island suburb of New Hyde Park, New York, challenged the “Regents’Prayer” in a suit against William Vitale, the school board president. Ruling in 1962, the Supreme Court struck down this daily religious practice. Justice Black again wrote for the Court in Engel v. Vitale and again cited Jefferson’s “wall of separation” for support. Black stated that the Establishment Clause “must at least mean that in this country it is no part of the official business of government to compose official prayers for any group of American people to recite as part of a religious program carried out by government.”

  Back in the 1830s, when Alexis de Tocqueville visited America from France, he noted that “religious zeal is perpetually stimulated in the United States by the duties of patriotism” and remarked that “you meet with a politician where you expected to find a priest.” Little had changed over the next century, and the Engel decision touched a live wire in American politics. Cardinal Spellman of New York was “shocked and frightened.” Cardinal McIntyre of Los Angeles called the decision “positively shocking and scandalizing to one of American blood and principles.” Evangelist Billy Graham was “shocked and disappointed.” Alabama representative George Andrews complained that the Court had “put the Negroes in the schools, and now they’ve driven God out” Seventy-five congressmen of both parties introduced 147 bills to return prayer to classrooms through legislation or constitutional amendment.

  The Court struck down another devotional ritual in 1963, banishing the Lord’s Prayer and the Bible from classrooms. This case began in the high school attended by Roger and Donna Schempp in Abington Township, Pennsylvania, a suburb of Philadelphia, Classes began every morning with a reading of ten verses from the Bible and recital of the Lord’s Prayer, a ritual commanded by state law, although children who objected could be excused from the classroom at their parents’ request. The Schempp family belonged to the Unitarian Church, whose members reject the Christian Trinity and are not bound to any religious creed. Edward Schempp filed suit on his children’s behalf, arguing that forcing Roger and Donna to stand in the hallway while their classmates prayed would carry “the imputation of punishment for bad conduct.” Supported by the American Civil Liberties Union, the Schempps won the first two rounds in federal court and the school board appealed to the Supreme Court.

  The justices could easily have denied review in Abington Township v. Schempp, which differed from Engel only in the text of the classroom prayer. Most likely, they wanted to tell the politicians who demanded a constitutional amendment to reverse Engel that the Court stood firm in the face of pressure. The Court heard oral argument in Schempp in February 1963. The school board’s lawyer, Philip Ward, asserted that Pennsylvania schools us
ed the Bible “to bring lessons in morality to the children.” He admitted the Bible was a religious book, but claimed the state was “teaching morality without religion, cut adrift from theology.” Pennsylvania lawmakers, Ward said, wanted to find the best source for teaching morality. “So what did they do? They picked a common source of morality, the Bible.” Ward appealed to tradition. “Must the government rip out that document, that tradition, simply because it involves a religious book?”

  The Schempps’ lawyer, Henry Sawyer, scoffed at Ward’s argument. “I think it is the final arrogance to talk constantly about ‘our religious tradition’ and equate it with the Bible,” Sawyer responded. “Sure, religious tradition. Whose religious tradition? It isn’t any part of the religious tradition of a substantial number of Americans.” Sawyer concluded by suggesting that Pennsylvania schools “are a kind of Protestant institution to which others are cordially invited,” so long as they stand in the hallway during morning devotions.

  Hugo Black took a break from writing opinions in religion cases. Chief justice Warren assigned the Schempp case to Tom Clark, perhaps thinking that an opinion from a conservative southerner might not spark the heated reaction that followed the Engel decision. With his respect for precedent, Clark followed the path his fellow Southern Baptist had cleared. “The place of religion in our society is an exalted one,” he wrote, “achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind.” Americans “have come to realize through bitter experience that it is not within the power of government to invade that citadel,” Clark added. “In the relationship between man and religion, the State is firmly committed to a position of neutrality.” Arguments that Bible reading and prayer were only “minor encroachments on the First Amendment” did not convert Clark. “The breach of neutrality that is today a trickling stream may all too soon become a raging torrent,” he replied. Justice Potter Stewart complained in solitary dissent that Roger and Donna Schempp had infringed the “free exercise” rights of their classmates to pray, and that his colleagues had established a “religion of secularism” in place of Christianity.