Not a bad bargain, but the audience was uncertain. Then a small voice came from the back of the room. “Say no.” And the audience broke into applause. That applause made clear the moral nature of the judge’s legal obligation in that case.
A close examination of the Dred Scott opinion, the Court’s “worst case,” can teach us through negative example about the important relation between the way the Court fulfills its obligation to maintain a workable Constitution and the way the public carries out theirs. It also can help us understand the importance of solid reasoning, the dangers of reliance on rhetoric, the need for practical constitutional interpretation consistent with our nation’s underlying values; and it teaches us the important role that morality and values play—or should play—at the intersection of law and politics.
Chapter Five
Little Rock
IN 1957, PRESIDENT Dwight Eisenhower had to answer difficult and historically important questions about how to enforce the Supreme Court ruling in Brown v. Board of Education requiring racial integration of the public schools. In the face of fierce public opposition, he had to decide whether (and how) to send troops to Little Rock, Arkansas, in order to enforce lower-court orders designed to provide racial minorities with the protection offered by the equal protection clause of the Constitution’s Fourteenth Amendment. The Little Rock cases directly raise the enforcement question—Hotspur’s question—that Hamilton had not answered. The Court succeeded in enforcing its decisions, as did the lower courts their orders, but only with key support from the president. This illustrates the often-necessary link between effective enforcement and executive cooperation. The Little Rock cases eventually helped to produce victory for the cause of racial integration, a victory that helped secure the rule of law in America.
BACKGROUND
BEFORE 1954 THE South administered a comprehensive set of rules that legally required racial segregation throughout southern society. These rules forced African-Americans to suffer inferior schooling, inadequate public facilities, and countless other harms and indignities. In Brown v. Board of Education of Topeka, Kansas (and four other cities), the Supreme Court was asked to decide whether “segregation of children in public schools solely on the basis of race,” even if the “physical facilities and other ‘tangible’ factors” were “equal,” nonetheless would “deprive[] children of the minority group of equal educational opportunities.” On May 17, 1954, Brown answered this question with the words “We believe that it does.” In its most famous sentences, the unanimous Court said: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” The Court thus held that the South’s legal system of segregation violated the Constitution’s guarantee that “no State shall … deprive any person of … equal protection of the laws.”1
The legal answer to the question was not difficult. The Court held that the Constitution’s words meant what they said. State-imposed racial segregation was directly contrary to the purposes and demands of the Fourteenth Amendment. Racial segregation reflected an effort to wall off African-Americans as an inferior race and produced a segregated society that was unequal.
In deciding Brown, the Supreme Court fulfilled its most fundamental role in our democracy, that of guardian of our Constitution. The Brown decision was momentous. America at last would try to become the single nation that its Constitution intended. Brown led to a large number of subsequent cases and court decisions that sought to implement the constitutional principle that Brown reaffirmed.
From the moment it was decided, Brown was more than just a legal decision. It validated the moral principle of racial equality that was pressing for recognition in other arenas of American life. It gave new legal legitimacy to the political efforts of the civil rights movement, and thus helped to energize the movement. Brown made it possible for Dr. Martin Luther King, Jr., to say, in one of his most memorable phrases as a civil rights leader, “If we are wrong, the Constitution of the United States is wrong.” Brown became a symbol for the nation—of a new era in race relations in the United States, of what the Supreme Court could contribute to American life, of how law could advance justice. Today, long after it was decided, Brown remains one of the most important Supreme Court decisions in our country’s history, and one that demonstrates how, at crucial moments, the Supreme Court can summon the country to adhere to its fundamental principles.2
Brown did not come out of nowhere. Its groundwork was laid not only by the suffering endured by black people during generations of slavery, inequality, and subordination but also by the efforts of civil rights lawyers to persuade the Supreme Court over many years that its 1896 decision in Plessy v. Ferguson (permitting “separate but equal” facilities) was wrong. These lawyers undertook a step-by-step litigation campaign to advance the evolution of constitutional law. The incremental steps taken by the Supreme Court itself, along with measures such as President Truman’s desegregation of the armed forces in 1948, helped prepare the country for the ruling in Brown. Still, in Brown the Supreme Court knew that it was doing something highly significant, and despite its acceptance by much of the American public the Court knew that the decision would meet with resistance in many places.3
The Court, understanding the enforcement difficulties, said it would consider “appropriate relief” in a later opinion, and issued a second opinion, Brown II, a year later, on May 31, 1955.4 The National Association for the Advancement of Colored People (NAACP), whose lawyers (including Thurgood Marshall) represented Brown’s plaintiffs, had asked the Court to specify that lower courts throughout the South must immediately hold segregation unconstitutional, to require the courts to issue periodic progress reports, and to insist on integration of all public schools no later than September 1956. The attorney general, Herbert Brownell, Jr., one of President Eisenhower’s closest associates, echoed the executive branch viewpoint that an integrated education was “a fundamental human right, supported by considerations of morality as well as law.” Brownell asked the Court to require school districts to submit desegregation plans to the district courts, tell those courts to supervise the implementation of those plans closely, have the courts submit periodic reports to the Supreme Court itself, and require integration after a one-year transition period (though possibly with reasonable extensions). Brownell’s brief concluded that “there can be no justification anywhere for failure to make an immediate and substantial start toward desegregation, in a good-faith effort to end segregation as soon as feasible.”5
The Court accepted these recommendations, but only in part. It delegated primary enforcement powers to local federal district courts and said that local school authorities must “make a prompt and reasonable start toward full compliance.” But it added that “the courts may find that additional time is necessary,” because of issues of “administration” related to “physical condition of school plant, the school transportation system, personnel, revision of school district and attendance areas,” and “revision of local laws and regulations.” It told the lower federal courts that they should consider “whether the action of school authorities constitutes good faith implementation of the governing constitutional principles, [b]ecause of their proximity to local conditions and the possible need for further hearings.” The Court summarized its desegregation instructions to the lower courts in the words “with all deliberate speed.”6
But even with that approach, the Court faced outright opposition to carrying out its order at all. According to NAACP estimates, no public schools in the eight southern states were actually desegregated in 1955. At the same time, a large majority of the South’s congressional representatives signed the Southern Manifesto declaring their belief that Brown was wrongly decided, that it was an “abuse of judicial power,” and that it provided an example of the “Federal judiciary undertaking to legislate.” The manifesto called for “all lawful” resistance against Brown and the Supreme Court.7
> More ominously, the White Citizens’ Council began to organize chapters throughout the South. They claimed that the Brown decision itself was unconstitutional. They adopted a form of the “nullification” argument—a constitutional argument used by the South before the Civil War: The state could lawfully ignore Brown by interposing its own legal authority to prevent integration. In any event, the councils would “never” permit integration. They argued for popular resistance, predicting that there would not be “enough jails to punish all resisters.”8
Throughout the South these and other integration opponents took punitive actions against those attempting integration. They threatened integration’s supporters with loss of jobs or credit. Southern voting registrars increased their efforts to keep black citizens from the polls. The worst forms of racial violence increased. In early 1955, in Mississippi, after several years of relative racial peace, three lynchings took place. These included the lynching of Emmett Till, a fourteen-year-old African-American boy from Chicago who, reportedly, had spoken too informally to a white woman. An all-white jury acquitted those charged with his murder just as all-white juries had recently acquitted thirteen out of fourteen defendants in cases involving serious civil rights violations.9
Congress did not help. The Senate refused to enact key provisions of President Eisenhower’s Civil Rights Bill, including permission for the attorney general to sue to prevent interference with the constitutional rights of any American. The Senate insisted on jury trials, meaning likely acquittals given local prejudice and exclusion of black citizens from juries. And Congress rejected legislation that would give federal financial aid to local school systems to prevent courts from using that law to advance integration, say by forbidding school districts that received aid from maintaining segregated schools. At the same time, the House passed a bill that stripped civil rights jurisdiction from the federal courts, failing to obtain full consideration in the Senate by only one vote.10
Yet there were favorable signs. The District of Columbia, a defendant in the Brown case, began to integrate its schools. The other four cities that were defendants in Brown prepared to comply. In addition, school officials in a handful of other cities—such as Houston, Texas; Nashville, Tennessee; Greensboro, North Carolina; Charlotte, North Carolina; and Arlington, Virginia—issued statements saying that they too would seek to comply, regardless of how they felt about the merits of Brown. In Alabama that same year, 1955, Rosa Parks refused to sit in the back of a public bus. The Montgomery bus boycott had begun. In Little Rock, the school board, pledging to carry out the law, advanced a plan to begin to integrate the public schools.11
THE PRESIDENT’S ROLE
THE EVENTS THAT unfolded in Little Rock in 1957 and 1958 highlight differences between the president’s role and that of the Court. In 1954, Little Rock was a segregated city with a segregated school system. Yet the city had a reputation for racial moderation, and in 1952 the school board had considered the possibility of racial integration. In late May 1954, just after Brown, the board met, declared that it disagreed with Brown, and refused to integrate immediately. But it also recognized its own “responsibility to comply with Federal Constitutional Requirements,” and promised to comply after the Supreme Court specified what method to follow. Arkansas filed a brief in Brown II, informing the Court that its own remedial policy recognized the Supreme Court’s decision and would implement it properly.12
In May 1955, just before the Supreme Court issued Brown II, the Little Rock School Board announced an integration plan. Its “Phase Program” would begin two years later in September 1957. It would admit a handful of screened black students to Central High School, with a junior high school phase beginning in 1960 and an elementary school phase starting in 1963. A transfer option would assure all white students that they need not attend any high school that was predominantly black.13
The NAACP thought the Little Rock Phase Program inadequate and brought a lawsuit, but the federal district court upheld the plan. And in April 1957, the Eighth Circuit rejected the NAACP appeal. However, the NAACP lawsuit was not brought entirely in vain: Even though the district court did not order a speedier integration of Little Rock’s schools, it did retain jurisdiction over the case to ensure the school board would follow the integration plan that the board had proposed. Accordingly, during the summer of 1957 the school board picked nine black students for transfer to Central High the coming September. These were the “Little Rock Nine,” all of whom had excellent academic records, were intellectually ambitious, and lived near Central High.14
During that same summer, however, opposing political forces began to gather. Arkansas voters had approved an amendment to the state constitution requiring the state to oppose “in every constitutional manner the un-constitutional decisions of … the United States Supreme Court.” The legislature enacted a statute saying that no child need attend a racially mixed school (implicitly threatening to close the public schools). Members of Citizens’ Council chapters attended school board meetings where they repeated their claims that the law did not require integration, that the governor could “interpose” the state between the Court and Brown’s implementation, and that, no matter what, they would “shed blood if necessary” to stop integration. They gathered support by pointing out that only Central High would be integrated and not Hall High, a school in a higher-income neighborhood.15
The Citizens’ Council also contacted Arkansas’s governor, Orval Faubus, an economic liberal elected as a racially moderate alternative to the segregationists’ candidate, Jim Johnson. The council nonetheless tried to convince him to resist integration. They argued that segregation was politically popular, that he was immune from federal court orders, that the board’s alternative would bring violence to Little Rock, and that he must stop integration in order to “preserve tranquility.” Under this kind of pressure, Faubus began to change his views.16
Central High was to open on Tuesday, September 3, 1957, with the nine black students in attendance. As the day approached, political pressure to keep the school segregated increased. In mid-August, Georgia’s governor spoke in Arkansas and poured fuel on the flames. Georgia’s schools had not yet been forced to integrate. Why, he asked, did Arkansas families have to accept integration when Georgia’s families did not? That same night someone threw a stone through the window of the home of the local NAACP president, Daisy Bates. “Stone this time,” a note read, “dynamite next.”17
Governor Faubus sought a state court order to stop Central High’s integration. On August 29 that court issued an order complying with the governor’s request. The school board immediately asked the federal court to set aside the state court order. The federal court did so the next day, reasoning that the state court injunction would “paralyze the decree of this court entered under Federal law, which is supreme under the provisions of Article 6 of the Constitution of the United States.”18
On the evening of Monday, September 2, the day before school would begin, Governor Faubus made a televised address to the state. He said he had heard armed caravans were approaching Little Rock, and moreover he, like much of the public, doubted the lawfulness of “forcing integration” on “the people” against their will. For these reasons, at least for “the time being,” the schools “must be operated on the same basis as they have before.” He announced that he had sent National Guard units to Central High. The audience understood that the guard would prevent integration.19
That same night the school board held an emergency meeting. The board asked the black students not to go to Central High until the issue was legally resolved. On Tuesday, September 3, the nine students stayed home, and Central High opened with an all-white student body. Yet that same day the school board returned to federal court to ask for guidance. The judge, finding no evidence of any potential disorder, said that integration should proceed “forthwith.”20
The board again told the students not to try to attend the school. On Wednesday morning several of the students
nevertheless coordinated an attempt to enter Central High, but were turned away by the National Guard. No one, however, could coordinate the entry effort with Elizabeth Eckford, who had no phone, so she arrived at Central High alone.21
A large hostile crowd had gathered at the school. Some in the crowd seemingly mistook a black photographer for a student and beat him severely. When Elizabeth Eckford arrived, the National Guard stopped her from entering the school. As she was leaving, a journalist photographed her near a white woman whose face was distorted with rage. The picture quickly became famous around the world.22
On Thursday the federal court asked the FBI and the Department of Justice to investigate whether the governor had told the National Guard to prevent enforcement of the court’s integration order. The court scheduled a hearing for September 20. The governor agreed to appear. As the world watched, integration at Central High was on hold.23
Then, at the request of Brooks Hays, Little Rock’s respected member of Congress, President Eisenhower and Governor Faubus agreed to a meeting. On Saturday morning, September 14, Faubus went to Eisenhower’s “summer White House” in Newport, Rhode Island, where they first met privately. Eisenhower, Faubus recounted, dressed him down, telling him “like a general tells a lieutenant” that no one would benefit from “a trial of strength between the President and a Governor,” and instructing him to have the National Guard protect the black students, not bar their entry into the school.24
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