by Jim Newton
The Kansas court could not bring itself to read away Plessy; the case was, after all, the work of the United States Supreme Court and still stood as the law. But it had come a long way from accepting that segregation bore no indignity other than what blacks read into it. In Kansas, the Court had announced it was objectively bad for blacks. A pillar of the sociological reasoning in Plessy fell quietly.
Delaware, although also a border state, practiced a less benign, more nakedly venal racism. There, a white woman named Sarah Bulah fumed that the bus for white boys and girls would pass her house every day without stopping, while Sarah had to drive her adopted little girl, Shirley, two miles to the Negro school. Sarah Bulah complained, was rebuffed, and sued. All of that was grindingly predictable, but the Delaware litigation was assigned to a decidedly atypical judge named Collins Seitz. He visited the white and Negro schools and examined for himself the facilities. The white school, No. 29, had lush grounds, with pines and roses, a nurse’s office, and an auditorium. At Shirley Bulah’s school, the urinals were broken; there was no auditorium or nurse’s office, just a first-aid kit for emergencies.26 Like the Kansas court, Seitz could not rule that segregation itself was unconstitutional. He could and did find, however, that the state had failed to provide equal educational facilities to its Negroes, and he too found that segregation was itself harmful: “I conclude from the testimony that in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated. ”27 Having registered those findings, Seitz then shockingly ordered the white schools integrated. Of the cases that came to the Supreme Court under the banner of Brown, only the one from Delaware was appealed by the government.
Kansas and Delaware lay on the periphery of the Old South. South Carolina and Virginia were its political and cultural center. Rural Clarendon County in South Carolina was the testing ground for the NAACP’s attack on segregation in a decidedly inhospitable forum, a little sharecropper community well below what Marshall playfully but ominously called the “Smith-and-Wesson line.” Clarendon County was overwhelmingly black—approximately 70 percent of its residents—so any desegregation of that district necessarily would place white children in the minority of an integrated district, a prospect that many Southerners found all but unimaginable. Even equalizing facilities was anathema in Clarendon. Black children attended schools in shacks, often without electricity or plumbing. In a district with three times as many black children as white children, the district spent $282,000 to educate its blacks and $395,000 to educate its whites.28 Preserving that inequity was high on the list of Clarendon County’s white priorities, and blacks signed the lawsuit at their peril, but did so anyway. When it was filed, Harry Briggs, a local mechanic, war veteran, and father of five children, topped the alphabetical listing of plaintiffs. Briggs promptly lost his job—the service station where he worked was owned by the mayor—and his wife lost hers at a local motel.29
Despite threats and punishments, the case moved forward under Marshall’s personal direction and with the prodding of a rebellious local judge, J. Waties Waring, once a member of South Carolina’s political and social establishment but by the early 1950s a renegade whose divorce had ostracized him from his former peers. So itching for a fight was Waring that when Marshall initially left the door open for Waring to rule against Clarendon’s schools by finding the black and white schools unequal rather than by attacking segregation itself, Waring rejected the pleading and urged Marshall to redraft it as a direct challenge. Chastened, Marshall did, and then the case was put before a three-judge panel. Waring could deliver only his own vote, however, so when the Briggs case made its way to the Supreme Court, it did so on appeal of a lower-court rejection of the NAACP lawsuit.
Virginia’s case was different from South Carolina’s in at least one important respect: it was started not by parents fearful for their children but by children themselves. On the morning of April 23, 1951, black students at Robert R. Moton High School in Prince Edward County went on strike to protest overcrowding and leaky, badly heated buildings that had been erected as temporary facilities but then had been allowed to stay. The students were led by a sixteen-year-old girl, Barbara Johns, whose charismatic uncle, Vernon Johns, was an early and inspirational advocate of desegregation on moral and religious grounds. Barbara learned her uncle’s lessons, and added to it a resourceful mischief of her own. Eager to rouse students but not to implicate their sympathetic principal, she or one of her friends placed a call to the principal that morning to say that two students were in trouble with the police downtown. He rushed to their aid, not realizing he’d been tricked. Then Barbara Johns had notes delivered to each classroom informing teachers and students that they were wanted at an assembly. Puzzled teachers arrived with their classes, and the adults were told to leave. When they resisted, young Barbara Johns rapped her shoe and shouted, “I want you all out of here!” They left the room.30
This was not the NAACP’s way to launch a lawsuit, and the students’ demands—mainly for better buildings—did not conform to the organization’s newly adopted pledge to attack segregation directly rather than pressing merely for improved conditions at segregated schools. But when the students wrote to the NAACP to ask for help, the organization sent along Oliver Hill and Spottswood Robinson, two Howard graduates and veterans of the school equalization lawsuits. The lawyers told the students that they would file suit if the students would agree to press for ending segregation, if the students would end their strike, and if their parents would join in the litigation. The matter was put before the community on May 3, when students and parents gathered in church. There, Barbara Johns addressed her friends, her parents, her neighbors. After she finished, Reverend Francis Griffin spoke for all: “Anybody who would not back these children after they stepped out on a limb is not a man,” he said. The community approved the lawsuit, and it was filed on May 23, 1951.31
It took the Virginia court just one week to rule against the plaintiffs from Prince Edward County, in the heart of old Virginia, and though “frankness required admission” that at least the buildings at Moton High School required improvement, the court declined even to issue an injunction to assure that. Instead, the court accepted the school district’s promise that improvements were on the way. In seventeen other counties and eight cities, it concluded, black schools were “better” than white ones. The court refused to order desegregation of any type at any school.32
The last of the cases that found their way under the popular banner of Brown arose in the District of Columbia. Bolling v. Sharpe was the only one to work its way through the trial courts without significant input from the NAACP, and it was distinguished from the others by the applicable law. Congress itself had sanctioned segregated schooling in the same period that it adopted the Fourteenth Amendment, so any analysis of its intentions for the District was complicated for the plaintiffs by the clear evidence of Congress’s actions. Moreover, because the Fourteenth Amendment established “equal protection” only for residents of the states, it did not reach the District, which lay under federal jurisdiction. Different constitutional principles thus applied to the issues in the District case.
And yet while bound by different law, the black students of the nation’s capital experienced conditions that were woefully familiar to those of their counterparts across the Deep and peripheral South. Overcrowding was common, and facilities were in disrepair. Like Barbara Johns and the Moton High School students, some children in the District struck to protest. In this case, it was a junior high school whose halls suddenly went quiet in the face of youthful unrest. Their parents sued the school board, which refused to budge even as the strike dragged on. That lawsuit, filed by Marshall’s old mentor, Charles Houston, initially sought improved conditions. It was rejected. After the Supreme Court handed down its decisions in Sweatt and McLaurin, eleven bla
ck students attempted in the fall of 1950 to enroll in the white school. They were denied again, and this time their lawsuit sought not to equalize conditions but to gain them admittance into an integrated school. They were represented now by a new lawyer, James Nabrit, who replaced Houston. Charles Houston spent decades in the urgent struggle to achieve equality for his people. He yearned to hear the United States Supreme Court command that equality, and he trained a generation of lawyers to pursue it. But Houston would not live to see the day he imagined his whole adult life. He died in 1949.
As those five cases worked their way through their appeals, the justices of the United States Supreme Court knew that history was bearing down on them. They dithered as long as they could, uncomfortable with the notion of being backed into the corner of a direct challenge to separate-but-equal. By 1952, the time for stalling had run out. On June 9, 1952, the justices voted to hear Brown and Briggs, and then later consolidated those cases with the remaining three. Argument was set for December 1952, conveniently after the November elections.33
The arguments that day—and the briefs that set the stage for them—were divided by the individual cases, with Brown going first, followed by Briggs and then the rest. Each of the individual presentations had their moments, but the marquee lawyering matchup came in Briggs, the South Carolina litigation. There, for the plaintiffs, appeared Thurgood Marshall, fluent in his case and his area, disarmingly folksy, penetratingly smart. For the state of South Carolina appeared an even more familiar face to the justices. John W. Davis was arguably the most esteemed lawyer in America. No man had argued more cases before the United States Supreme Court. So wide was his fame and great his renown that the Democratic Party nominated him for president in 1924. Davis was staid and careful, a brilliant orator, a dignified relic of the antebellum South. In 1952, Davis was nearing the end of his extraordinary career, and his life and work were formed in the era of Jim Crow. Raised in that world and steeped in its customs, Davis could not fathom life apart from it. He accepted South Carolina’s invitation to defend segregation in schools and ultimately worked without a fee. In one respect, Davis and his adversary had a heritage in common: Segregation was Thurgood Marshall’s world, too. But far from romanticizing it, he felt its insult, the presumption that assumed his inferiority to men such as Davis. Marshall was younger and less tested than Davis. But Marshall came to Court with the strong sense that history was to be his. And he, like Davis, arrived as both advocate and symbol—of an idea, of a time, and of a place.
On December 9, 1952, Marshall and Davis waited their turns as the session began and the lawyers from the Topeka litigation started off. Then, just after 3:15 P.M., Marshall took the lectern. Exquisitely prepared by long nights of brainstorming with his colleagues in little hotel rooms with plenty of Jack Daniel’s, Marshall seemed at ease as he made his case and fended off the questions of the justices, particularly the inquiring Frankfurter, famous for shredding the incomplete arguments of lawyers just as he had once done to those of his students. Nor did Marshall shrink from wit. When Justice Jackson inquired as to whether Native Americans might find comfort in Marshall’s desegregation claims for blacks and suggested that Marshall might want to bring some lawsuits on their behalf as well, the lawyer drolly replied, “I have a full load now, Mr. Justice.”34
Davis was not easily outdone. The justices knew him well and respected him. They listened intently as he laid out his argument, barely interrupting him. When reminded by Justice Burton that the Constitution is “a living document” and asked whether changed circumstances did not compel new readings of its mandates, Davis responded as best he could: “ [C] ircumstances may bring new facts within the purview of the constitutional provision,” he said, “but they do not alter, expand or change the language that the framers of the Constitution have employed.”35 The framers of the Fourteenth Amendment never contemplated that it would force integrated schools, Davis argued. No change in sociology could undermine that fact, no new customs or ideas altered the written text or the intentions of those who wrote. No act by the Supreme Court could justify rewriting the text that bound their decisions. After he and the other lawyers had finished their arguments, Davis was overheard to say to a colleague that he believed, based on the presentations and the questions of the justices, that his side was likely to win, “five to four, or maybe six to three.”36
Much has been written about the Vinson Court’s initial attempt to grapple with the desegregation cases, but any honest assessment must begin with the admission that it is impossible to know precisely how each of the justices analyzed the cases. That is in part because the justices decided at the outset not to record a tentative vote. Instead, they discussed the matter informally, with several justices keeping notes. The notes are incomplete and at times suspect, as they are refracted through the particular points of view of the justices taking them. That said, they do portray a deeply divided Court, one strained by doctrinal and philosophical differences and burdened with a leader unworthy of the case before him.
The chief justice traditionally speaks first when the brethren gather in their conference, so on that Saturday morning, Chief Justice Vinson led off. Vinson began by observing that Plessy remained binding and that the “body of law” arising from it upheld segregation. It was, he said, hard to “get away” from the continued acceptance of the practice under the sanction of the Court.37 Reed, who genuinely believed in segregation (it was Reed, remember, who had refused to attend a Supreme Court Christmas party if black workers were to be invited), and Clark, who tended to follow Vinson’s lead and who emphasized the Court’s role in leading the South to believe segregation was appropriate, agreed. That meant that three of the Court’s four Southern members were prepared to extend the practice of segregation into the second half of the twentieth century.38 On the other side, Black was the lone Southerner to find segregation unconstitutional by the terms of his cherished Fourteenth Amendment. Burton and Minton joined him without hesitation, and Douglas, in his inimitable way, declared that the matter was “very simple for me.”39 Though he recognized the complexity of fashioning an order to abolish it and was willing to consider asking for more argument on that point, Douglas was prepared to say simply that all racial discrimination was illegal. With that, four justices stood solidly to overturn segregation and three seemed almost as determined to uphold it.
The views of the remaining two—Jackson and Frankfurter—are harder to pin down with certainty. No doubt that is because they, more than any of their brethren, were genuinely conflicted about the cases, which pitted their personal politics against their judicial philosophy. None of the justices in 1952 had a more developed record of support for black Americans than Frankfurter. He had lent his legal skills to civil rights organizations and had picked the first black clerk ever to serve a Supreme Court justice, William Coleman, who clerked for Frankfurter in 1949. There could be no doubt that Frankfurter supported school desegregation and would have cheered any president or Congress that moved for it. But it is equally true that few justices have given more thought to the duties and constraints of the judiciary—or have ever taken those matters more seriously—than Frankfurter. As the Jehovah’s Witnesses cases had amply demonstrated, Frankfurter was capable of deciding cases against what he saw as society’s substantive best interest in order preserve the proper place of judges.
On that December morning, Frankfurter delivered an equivocal view to the brethren. He was agitated, as he often was, by Black’s certainty regarding the meaning of the Fourteenth Amendment. “How does Black know the purpose of the 14th Amendment?” Frankfurter demanded, adding that he had read all of the history of the amendments and could not conclude, as Black did, that they commanded desegregation. 40 Douglas, in his reflections on the case, put Frankfurter down as a vote to reargue the cases, but also noted that Frankfurter remarked that he “can’t say it’s unconstitutional to treat a negro differently than a white.” Jackson, who would have listened to Frankfurter with a more
sympathetic ear, noted that his colleague was prepared to strike down segregation in the District of Columbia as a violation of the due process rights of black citizens under the federal government’s protection, but he, like Douglas, noted that Frankfurter wanted more argument.41 Douglas concluded that Frankfurter would abolish segregation in the District of Columbia but sustain it in the states.42 What seems clear, at a minimum, is that Frankfurter had yet to figure out a way to overturn segregation in the states.
Jackson joined with Frankfurter in seeing the cases “with great alarm.”43 He was, like Frankfurter, a New Deal Democrat, though one with fewer attachments to the cause of black equality. And he tended to frame cases in Frankfurter’s style, pulling back from what he saw as judicial excess. Moreover, he was more comfortable in the philosophical company of Frankfurter than of Black and Douglas, whom he disliked personally. Beyond all that, Jackson was a scrupulous reader of the Constitution, an elegant and brilliant man with words. And the Constitution, as he read it, did not supply the same easy solutions that it did for Black and Douglas. There was, he told the others, “nothing in the text that says this is unconstitutional.” Moreover, there was nothing in the opinions of the Court that struck the practice of school segregation and, notwithstanding Black, nothing in the history of the Fourteenth Amendment that did it, either. “On the basis of precedent,” Jackson said, he would have to conclude the segregation was constitutional .44 That had to have been wrenching for Jackson, but he believed in the law and, at least in late 1952, saw no escape from its commands.
In the months after that argument and conference, Jackson attempted to think his way through the dilemma of the segregation cases, of the law and his responsibility to it, as well as of society itself and the duties it required. His was a singular mind, searching and dedicated. Its task in those months was as great as any he had ever put it to.45