Although Governor Faubus gave the president the impression that he would permit integration, he did not take that position in front of the press, acting noncommittal instead. Faubus waited for Friday’s federal court hearing, where he reported to the judge that he had acted to prevent violence. But when the judge ordered him to stop barring students from entering the school, the governor, along with his lawyers, walked out of the courtroom. Later that day the governor announced that he would withdraw the guard from the school.25
On Monday morning, September 23, the Little Rock Nine arrived at Central High. The governor’s hostility and the attendant publicity, however, had done their work, and a mob of fifteen hundred waited outside. Some broke through police barricades. Eight of the nine black students managed to slip past the mob and enter the school through a side door. But the chaos was such that by noon police and school officials agreed that the students should go home. The Little Rock mayor blamed the governor, suspecting that his aides and his friends had been present in the crowd urging on the mob. The mayor then sent a telegram to President Eisenhower appealing for help.26
SENDING THE TROOPS
AT THIS POINT, Eisenhower, like Andrew Jackson at the time of the Cherokees, had to consider whether to send federal troops into a state to enforce a federal court order. Eisenhower debated the merits of the decision. What would happen to integration plans if the troops met physical resistance and ended up killing, say, women supporting segregation? Suppose other southern cities copied Little Rock? Would sending troops require some form of military occupation, as in the days of Reconstruction?
Moreover, what would happen to the public schools? Jimmy Byrnes, the former governor of South Carolina, a trusted friend of presidents Roosevelt and Truman, and a former Supreme Court justice, had earlier warned Eisenhower that Brown would lead the South to abolish those schools. Would precipitating federal action end up depriving both blacks and poor whites of any public education at all?27
Furthermore, Eisenhower thought that public education was a local matter for which the states must remain primarily responsible. He had to consider whether the presence of federal troops would play into the hands of segregationists gathered under the popular banner of “state sovereignty” and “no federal interference.” An aide wrote privately that the president “is loath to use troops—thinks movement might spread—violence would come.”28
Yet Eisenhower found the countervailing considerations more compelling. First, the federal court’s orders, including an order prohibiting state interference with a local school board’s integration plan, made clear that the key issue was whether federal law or state law was supreme. The nation had fought a civil war over the question. By the 1950s the need to maintain federal supremacy was well accepted in both North and South, even among those who hesitated to embrace racial integration.29
Second, recent history suggested that without enforcement the court’s order would become a dead letter. Governor Allan Shivers of Texas had recently faced a similar order, and his refusal to help with enforcement resulted in no integration.30
Finally, there is much indicating that Eisenhower favored racial integration on principle, although historians debate the strength of his commitment. Eisenhower had grown up in a segregated society, but he had witnessed the bravery of World War II’s black battalions in action at the Battle of the Bulge. (Indeed, some said, perhaps with only slight overstatement, that the black 332nd Fighter Group had never lost a bomber.) Eisenhower also had begun to understand the injustice of segregation and the need to bring it to a speedy end. In addition, he liked to lead by example. He had already desegregated military bases throughout the South, he had desegregated much federal contracting, and he had desegregated both schools and public accommodations in the District of Columbia.31
Herbert Brownell, Eisenhower’s friend, ally, counselor, and attorney general, urged the president to take action. On Monday, September 23, Eisenhower made his decision. Unlike President Jackson 120 years earlier, he would use federal troops to support federal law.32
In a public statement issued that evening, Eisenhower said, “The Federal law and orders of a United States District Court implementing that law cannot be flouted with impunity by an individual or any mob of extremists.” He pledged to use “whatever force may be necessary to prevent any obstruction of the law and to carry out the orders of the Federal Court.” He then issued an order: As “President of the United States, under and by virtue of the authority vested in me by the Constitution,” I “do command all persons engaged in such obstruction of justice to cease and desist therefrom, and to disperse forthwith.”33
In 1957, Americans remembered the 101st Airborne Division as the heroes of World War II. They had fought in the Battle of the Bulge and had parachuted into Normandy, many dying when the winds left them dangling from church steeples. Eisenhower told his army chief of staff, General Maxwell Taylor, to send this famous division to Little Rock.34
On Tuesday afternoon, September 24, fifty-two aircraft carrying about one thousand troops left Fort Campbell, Kentucky. That evening Eisenhower spoke to the nation about the importance of the orders of the Little Rock federal court being “executed without unlawful interference.” By then, the soldiers had deployed around Central High School. That evening Melba Pattillo, one of the Little Rock Nine, wrote in her diary, “I don’t know how to go to school with soldiers.… Please show me. P.S. Please help the soldiers to keep the mobs away from me.”35
The next morning a crowd again gathered outside the school, some taunting the soldiers. The soldiers lowered their bayonets, but they injured only a small number. One man was pricked by a bayonet, another hit on the head with a rifle butt. Army jeeps picked up the nine black students. Another black student, Minnijean Brown, said, “For the first time in my life, I feel like an American citizen.” At 9:25 a.m., the jeeps delivered the black students to Central High. As reporters and television crews broadcast pictures around the world, soldiers accompanied the students up the steps and into the school. Despite a false bomb scare around noon, the students successfully completed their first day.36
The next morning the crowd was gone. The students continued to attend Central High without serious incident. A poll showed that 68.4 percent of Americans approved the president’s decision to send the troops (the numbers reflected 77.5 percent who approved in the North and 62.6 percent who disapproved in the South).37
Yet the battle was far from over. Governor Faubus announced, “We are now an occupied territory.” Senator James Eastland of Mississippi stated at a White Citizens’ Council meeting that Eisenhower had “lit the fires of hate between the races.” “The use of an army will not win,” he added, “because the soldiers cannot stay in Little Rock all the time.” Nor can Eisenhower occupy every southern school. After about two months in Arkansas the troops withdrew. The nine black students remained at Central High, finding the atmosphere difficult (many white classmates were silently hostile), though a few white students and many teachers offered comfort and support.38
THE SUPREME COURT
LITIGATION AGAIN BECAME the center of attention. Governor Faubus and his allies urged the school board to suspend its integration effort. And in February 1958 the school board returned to federal court.39
The board told the court that it was difficult to operate a school system given the hostility from the governor, the state legislators, and the community. They pointed to incidents of segregationist intimidation. Furthermore, the state legislature had recently enacted laws that substituted all-white private academies (operating with state support) for integrated public schools. The board asked the court to suspend integration for thirty months, after which time it expected the courts to have determined whether the private academy scheme was lawful.40
On June 21, 1958, the district court granted the board’s request for a thirty-month delay, but on August 18 the Eighth Circuit reversed the district court. It then ordered a thirty-day stay, temporarily leaving in
effect the district court’s order to delay integration. To prevent Little Rock’s schools from abandoning integration and instead reopening the school year on a segregated basis, the Supreme Court agreed to hear the case immediately.41
The Court held a special oral argument session on August 28 and then again on September 11 in the case of Cooper v. Aaron. (William Cooper was a member of the school board, and John Aaron was the parent of a black student.) The NAACP asked the Court to put the Eighth Circuit’s order into effect immediately, that is, to order the lower courts to proceed with integration. The school board registered strong opposition because of the state’s efforts to interfere, the “chaotic” educational conditions at Central High, the possibility of the new private academy system, and the need for a thirty-month delay. The executive branch supported the NAACP. With the troops clearly in mind, the solicitor general told the Court that the moment you “bow to force and violence,” you “give up law and order.” The “country cannot exist without a recognition that the Supreme Court of the United States, when it speaks on a legal matter, is the law.” Furthermore, Americans were entitled to a definitive statement from the Court on whether force and violence and opposition to the Court’s decision were reasons to delay integration.42
Two weeks later the Court issued a brief statement unequivocally denying the school board’s request for a thirty-month delay and requiring integration to proceed as originally planned. The Court’s unanimous opinion followed on September 29.43
In its opinion the Court decided and clarified four important matters. The first concerned the constitutional duty of obedience to the Court’s own decisions. The Court highlighted Governor Faubus’s claim that “there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the United States Constitution.” The Court replied with five sentences:
Sentence One: “Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land.’ ”
Sentence Two: “In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as ‘the fundamental and paramount law of the nation,’ declared in the notable case of Marbury v. Madison,… that ‘It is emphatically the province and duty of the judicial department to say what the law is.’ ”
Sentence Three: “This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”
Sentence Four: “It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ ”
Sentence Five: “Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, §3, ‘to support this Constitution.’ ”44
Sentences One and Two are unexceptionable. Sentence Three, when closely examined, is particularly interesting, and Sentences Four and Five flow directly from it. Sentence Three does not quote Marbury’s actual language; rather, it summarizes Marbury’s holding. But in reality Marbury did not explicitly say (in the words of Sentence Three) that “the federal judiciary [compared to other branches of government] is supreme in the exposition of the law of the Constitution.” Rather, Marbury said more ambiguously that “courts, as well as other departments, are bound by” the Constitution. Nor, as we have seen, had the cases after Marbury clearly demonstrated that either the Court or the country viewed judicial supremacy as “a permanent and indispensable feature of our constitutional system.” Thus, the Court in Cooper actually decided that the Constitution obligated other governmental institutions to follow the Court’s interpretations, not just in the particular case announcing those interpretations, but in similar cases as well—a matter that both Hamilton and Marshall had left open.45
Sentence Three reveals that the Court had reached a crossroads. To have used more ambiguous language would have been to hedge or to vacillate, thereby handing a powerful legal and public relations weapon to those who, like Governor Faubus, were trying to convince the South that it need not follow Brown. If the Court was to make clear its power to issue highly unpopular constitutional decisions, it had to assume that other officials and the public at large would follow its key interpretations, and not just in the single case before the Court but in similar cases as well. Hamiltonian judicial review demanded Sentence Three.
The second matter concerned the South’s claim that the Court’s Brown decision was legally incorrect. To counter this, the Court emphasized that Brown was unanimous and then “unanimously reaffirmed” the decision. It made clear that the three new justices who had joined the Court since Brown agreed with the original authors. Furthermore, in a highly unusual step, all nine justices personally signed the opinion (rather than joining an opinion written by one of their number), thereby suggesting that all nine agreed with all of it and stood together in issuing it.46
The third matter concerned the board’s reasons for requesting postponement, which were the practical obstacles the board faced: the “state government opposed the desegregation of Little Rock schools by enacting laws, calling out troops, making statements vilifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace.” Thus, as the district court’s factual findings had revealed, Arkansas had essentially brought the difficulties on itself. The Court refused to accept this as a basis for resisting the desegregation order. As the Court in Brown II had held, the Fourteenth Amendment’s “equal protection” requirements “cannot be allowed to yield simply because of disagreement with them.”47
The fourth matter involved the question of remedies, and the Court was divided about the proper approach. Some, such as Justice Hugo Black, believed the South would delay desegregation until the Court set firm, definite, and speedy timetables. Others, such as Justice Felix Frankfurter, thought the Court should continue to follow Brown II’s “all deliberate speed” approach, leaving remedial matters primarily up to the district courts, which could shape, or approve, orders reflecting local conditions.48
The Court patched together a compromise. On the one hand, it instructed the school boards to “make a prompt and reasonable start toward full compliance.” It further specified that “only a prompt start, diligently and earnestly pursued, to eliminate racial segregation from the public schools could constitute good faith compliance.” It also addressed the legality of state-supported private segregated academies, remarking and then reiterating that the “Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property.” On the other hand, the Court repeated Brown II’s key language: “all deliberate speed.” And it added that courts must consider local conditions, physical plant, transportation, and the other matters that Brown II had permitted or required lower courts to take into account. Justice Frankfurter later filed a separate concurring opinion in which he too emphasized both the legal need to follow Brown and the practical need to take account of local problems and difficulties.49
In its concluding paragraph the unanimous opinion invoked the four words carved above the Supreme Court portico: “Equal Justice Under Law.” Those words, it said, set forth an “ideal” to which the Constitution is “dedicated” and which the Fourteenth Amendment “embodie[s].” The amendment, as Brown made clear, protects a student’s “fundamental and pervasive” right not to be racially segregated. Brown’s basic principles, “and the obedience of the States to them,… are indispensable for the protection of the freedoms” that the Constitution guarantees. Brown’s principles, if obeyed, make equal justice under l
aw “a living truth.”50
The last phrase eloquently recognizes the ultimate challenge of the Supreme Court’s role in American life. The Court aspires—it must aspire—not only to declare the “truth” about the Constitution’s meaning but also to make law “a living truth,” obeyed by the country and animating its social practices. But its ability to do so is not guaranteed.
Despite the Court’s opinion, it seemed that the State of Arkansas and the Little Rock School Board would continue to look for ways to oppose the Court’s insistence upon school integration. On September 27, 1958, two days before the Supreme Court released its full opinion, but almost two weeks after it had announced its ruling, Little Rock’s citizens voted, by a margin of 19,470 to 7,561, to close Little Rock’s public high schools. On September 29, the very day the Supreme Court released its opinion, Governor Faubus closed the schools. And during the next nine months Little Rock’s high school students were without public education.51
Nonetheless, the Court’s opinions, taken together with the determination that the executive branch showed in sending troops, gradually took effect. Matters slowly improved. Federal courts began to hold unlawful many of the state’s alternative educational systems, including the leasing of public school buildings to private state-funded academies. With business support, Little Rock elected three moderate members to its school board—thus achieving numerical equality with segregationist members. A local poll of Chamber of Commerce members showed support for reopening the schools. The chamber’s board of directors issued a resolution stating that the “decision of the Supreme Court of the United States, however much we dislike it, is the declared law and is binding upon us.… [B]ecause the Supreme Court is the Court of last resort in this country, what it has said must stand until there is a correcting constitutional amendment or until the Court corrects its own error.” Public opinion was beginning to shift.52
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