Justice for All

by Jim Newton

  The tally, then, stood not far from what Davis had predicted at the end of the oral arguments. Although it is puzzling to imagine how Davis believed there could be six votes in his column, there were certainly four votes to strike school segregation, and there were almost certainly three—and possibly even a majority of five—to uphold it in the states. Indeed, Douglas would later say with certainty that had the case been decided that year, “we would have had five saying that separate but equal schools were constitutional.”46 As with the rest of Douglas’s memoir, that should be regarded with skepticism. Still, he was almost certainly correct when he noted, in a memo for the files, that “it is apparent that if the cases had been decided in the 1952 Term there would have been a wide divergence of views.”47

  What happened next is Frankfurter’s great contribution to the cause of American equality. Recognizing the price that the nation would pay for a divided Court on a matter of such historic magnitude, Frankfurter devised a stall. As he indicated during the conference in late 1952, he proposed holding over the cases for reargument the following term. When the brethren showed interest in that idea, Frankfurter, working with his clerk Alexander Bickel, devised a set of questions for the lawyers to research and answer. They came up with five questions probing the roots of the Fourteenth Amendment, the power of the judiciary in the absence of clear guidance from the Constitution, and the form a desegregation decree might take if the Court ordered one.48 The attorney general was invited to share his thoughts as well, and the matter was put over until the following fall.

  And then, with Frankfurter’s work done, fate intervened to vindicate his stall. In the early morning hours of September 8, 1953, Vinson’s smoking habit caught up with him. The decent Vinson, who tried and failed to rally his Court, succumbed to his heart attack.

  The cases returned for oral argument on December 7, 1953, twelve years to the day from the Japanese attack on Pearl Harbor. This day would prove almost as historic. At 1:05 P.M., the school segregation cases were gaveled to order for their second oral argument in two years. The same cast of lawyers presented themselves to the Court. Many of the same arguments were contained in the briefs and memos of the justices. Only one thing had changed, really. The man whose hand wielded the gavel on that Monday afternoon was not Fred Vinson. He was not afraid to wrestle with the intellects of the Court or one to shrink in the face of its duty. It was a big, comfortable hand that gripped the Court’s gavel that day; a man at ease with power, confident and capable, a centrist by temperament but an activist, too—a man who liked responsibility, a master of forging agreement, and a leader who refused to let doctrine blind him to real life. He was eager to translate his views of fairness and justice into a working program for America. Earl Warren held the gavel that day. The country was about to learn what that meant.

  Chapter 18

  JUSTICE

  Nothing is more certainly written in the book of fate than that these people are to be free.

  THOMAS JEFFERSON 1

  WHEN WARREN arrived at the Court in 1953, he came with a record that suggested he might sympathize with the Negro plaintiffs in the desegregation cases, but that record was incomplete and in some ways contradictory. As a governor and as a candidate for national office, Warren had signed the legislation ending California’s Mexican schools, backed the Fair Employment Practices Commission, and spoken out favorably on civil rights. He was a Progressive Republican, which in those days represented an enlightened sliver of the American political spectrum on race—the Democratic Party had its liberals, but the party as a whole was freighted by its long-tenured Southern leadership. All that seemed to suggest that Warren would fit naturally into the Court’s desegregation bloc. On the other hand, there was his shabby record in the Japanese internment debate. And though some of the country’s great civil libertarians, including his new colleagues Hugo Black and William Douglas, had fallen down in that episode as well, Warren’s testimony before the Tolan Committee during that dark period was enough to cast doubt about how protective he would be when it came to American blacks. Summing up Warren’s civil liberties résumé as he arrived at the Court, Newsweek was among those reluctant to draw firm conclusions. “The only guide to Warren’s stand,” it wrote, “is his generally liberal position.”2

  In December, when the desegregation cases were reargued before the Court with Warren now in its center seat, Warren spoke occasionally, but still said nothing to reveal himself. Beneath his opaque gaze, the advocates for the states and the NAACP rehashed their differences, each now familiar with the arguments of the other. Marshall and his associates pleaded that the Fourteenth Amendment meant what it said, that divining the original intent of its framers was impossible given the politics surrounding it, and that even if those framers had countenanced school segregation in 1868, it did not mean that the Court could not strike it in 1953. (Historians do not rate Marshall’s argument that day as particularly effective, but he did impress at least one justice. Burton, as was his habit, jotted notes and assessments of each of the lawyers who appeared before the Court; next to Marshall’s name for that day, he wrote “very good.” In parentheses, however, he also noted: “colored.”)3 The United States government brief and argument largely echoed those positions, concluding, too, that the history of the Fourteenth Amendment left the Court free to decide the case in favor of the NAACP.

  For his side, Davis countered that intent did matter, and the existence and acceptance of segregation during the nineteenth century gave it credence. Southern states had determined that segregation was best for both races. Congress and the Court had allowed, even encouraged, the practice. As a matter of law, Davis asked, what had changed? The same Fourteenth Amendment was in place in 1953 as in 1896; how could today’s Court conclude that its words or intentions were different from what they had been for decades? And how could John Davis’s cherished South be blamed for adopting a practice that had, for so long, enjoyed the sanction and blessing of the same Court before which he now stood? “[S]omewhere, sometime,” the old orator proclaimed, “to every principle comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance.”4

  Had that moment arrived in segregation? Had the Court’s tolerance of the practice, even if initially misguided, now extended across so many decades that the South had reason to believe it was constitutional and thus believe in the right to continue it? After three days of that argument, the Court took the matter under submission again and turned to that question in the privacy of its conference. It did so without obvious rancor, the differences of the justices on many matters notwithstanding. Civility, even among adversaries, was—indeed, still is—highly valued in the Supreme Court. As was the long-standing custom of the Court, the conference that December Saturday began with each justice shaking the hand of every other. The justices then took their seats in the Court’s grand old conference room, seating themselves at its long table, over which so much history had been made.

  Warren had neither judicial experience nor scholarly depth with which to impress his brethren. But he understood what power he did have, and he used it. He had, most plainly, the right to speak first. On that morning, December 12, 1953, he did. There was, Warren told his brethren, no way to duck the question any longer. After more than a year of argument and contemplation, after the death of one chief justice and the arrival of another, the Court was “now down to [the] point of deciding the issues.”5 And for Warren, the matter that had so vexed the Court was in fact simple. There was, he said, only one way that he could imagine for upholding segregation. Plessy could only stand upon the “basic premise that the Negro race is inferior.”6 The Southern states had repeatedly denied that racial superiority was the essence of racial segregation, but that was a barely concealed fiction. Plainspoken as ever, Warren simply stated what others knew but would not say: Segregation was not equally good for blacks and whites. It was created
by whites and imposed on blacks, intended to protect whites from blacks and thus to extend their power over blacks. Given that, Warren said, he had come to believe that for the Court to endorse school segregation, it would have to embrace the notion of racial superiority. That, Warren added, he would not do.

  Warren rumbled along in his commanding voice that Saturday morning. A slow drizzle fell outside the Court, while inside it, the chief justice’s meaning washed over his colleagues. The others had yet to speak, but they knew well where one another stood, and Warren’s declaration of his views now joined him with the four justices—Black, Douglas, Minton, and Burton—who had previously announced their intention to strike the practice. Five justices are a majority, so it was clear a majority had formed since Vinson’s death. Almost as important, Warren’s conclusion that segregation rested upon a premise of racial inferiority reframed the implications of the case for the wavering justices. It was one thing for Frankfurter, say, to resist the judicial activism required to overturn segregation; it was quite another for a man whose life and reputation were bound up in liberal causes to join a dissent that would be accused of resting on racism. Finally, Warren’s presentation to the conference was important for what he did not say or do. Warren did not blame the South for its predicament; it had relied on the Court’s interpretation of the Fourteenth Amendment in good faith. He did not blame the justices for their more cautious approach to Plessy in the years before he arrived; they had attempted to apply precedent in a thoughtful and conscientious way. Warren was not there to blame or to look back. As a governor, Warren had assumed the good will of his adversaries until it was proven otherwise. As a justice, he saw no need to change that practice.

  The Court’s senior justice, Hugo Black, normally would have spoken next, but he was tending to a sick family member.7 Instead, he sent word that his views had not changed, that he continued to believe the time had come to abandon school segregation. With Black absent, the conversation moved to Stanley Reed. Later, Warren would maintain that there had “not been a division of opinion expressed on the Court at any time,”8 but that was written after his retirement and after Brown was the established and accepted law of the land.9 In fact, Reed, undoubtedly taken aback by Warren’s insistence that Reed’s belief in segregation implied one of white supremacy, choked out a defense of race separation. Reed insisted that segregation was based “not on inferiority but on racial differences. It protects people against mixing races.” If Congress wanted to change the law, it could, Reed argued. But he stood firm on the notion that segregation was constitutional so long as the two races received substantially equal treatment, in this case in school facilities.10

  With Warren and Reed thus staking out the poles, the rest of the justices filled in, speaking in order of their commissioning to the Court (although Warren was the junior justice, the protocol does not apply to the chief). Frankfurter was next, and Douglas recorded him as continuing to worry about the application of the Fourteenth Amendment. Always bothered by what he saw as Black’s glib reading of the Amendment and its application to the states, Frankfurter stiffened in the face of the professed assurances of Warren and Black as to its application here. The “history in Congress and in this Court indicates that Plessy is right,” Frankfurter insisted, according to Douglas.11 But while Douglas took that as a sign that Frankfurter was considering a dissent, it seems more likely that Frankfurter was still struggling with his conscience.

  Next came Douglas, about whom there was never any doubt. Douglas would strike down segregation happily and without pangs of judicial propriety. He said so crisply, wasting no time with any pretense of indecision.

  Then came Jackson, who took the strange view that striking segregation was the right thing to do but that the Court should simply acknowledge its work as an act of politics, not the law. The Court, he said, “can’t justify elimination of segregation as a judicial act.”12 But rather than join Reed in supporting segregation, Jackson instead proposed to have the Court adopt an admittedly political approach. His comments must have puzzled the other justices; they were sufficiently confusing for Douglas to record Jackson as a likely vote to uphold the Southern states. Jackson and Frankfurter, Douglas wrote later, “expressed the hope that the Court would not have to decide these cases but somehow avoid these decisions.”13 Warren would have none of that. As he had said in his opening remarks, the chief justice was determined to resolve the cases this term. Frankfurter and Jackson soon would be forced to choose.

  The remaining three justices spoke in turn, though their comments were anti-climactic. Burton already had made clear in the prior term that he intended to abolish school segregation, and he repeated his position that day. Clark, who had for so long labored under Vinson’s shadow and only now was emerging from it, spoke more ambiguously. He stressed the importance of carefully considered relief that would not antagonize Southern states or his native Texas. If such an order could be drafted, Clark said, he would reluctantly join the apparent majority forming beneath the new chief. 14 Then Minton, who despite four years on the Court remained its junior justice, added his emphatic support to the antisegregation bloc.

  Before adjourning that day, Warren dealt one more significant political stroke. Normally, the justices record their tentative votes at conference, and if he is in the majority, the chief justice assigns that opinion for drafting. Here, the informal conversation made it clear that Warren was in the majority, but he asked his brethren to refrain from a vote. Once votes are cast, they are harder to change, and Warren wanted more than a majority. He wanted a solid Court, ideally a unanimous one, to speak with a single, clear voice on a matter of moral urgency. So instead of voting, the justices agreed to continue talking.15

  Beyond preserving the Court’s flexibility, Warren had at least two reasons to favor a short delay. First, he still was not the confirmed Chief Justice of the United States. Were the Court to vote on the segregation cases before he was confirmed, Southern senators surely would have voted against keeping Warren on the bench. More important, Warren knew that time played to his great strength. For although he was modest about his abilities, he never was blind to them, and Earl Warren knew that few people were better than he at persuasion. When the conference ended on December 12, 1953, Warren set out to do what he did best—work the room.

  Burton’s diaries and Warren’s calendars for late 1953 and early 1954 illustrate the breadth and thoroughness of Warren’s campaign.16 That Saturday afternoon, during the break in the justices’ conference, Warren lunched with Burton, Reed, Douglas, Clark, and Minton, effectively surrounding the two most doubtful justices with four of the most decided. Over the next five days, Warren lunched with Reed no fewer than five times, and each time took care to invite Burton and Minton, who were solidly in favor of striking segregation. In addition, Warren made sure that the justices who might antagonize Reed—Frankfurter, in particular—were not at the table; after his first lunch with the rest, the prickly Douglas did not join the group again for some time.17

  As 1953 turned to 1954, Warren continued his small lunches, private meetings in chambers, conversations at the justices’ homes, and walks around the block. Patiently but insistently, Warren urged each to consider the possibilities for the Court and country should a united group of justices lead the nation away from segregation. Alternatively, he warned of the consequences of division. An opinion of the Court upholding segregation now was impossible, he reminded those who were in doubt; the only remaining question was whether the Court would project a united voice or a conflicted one. Through those weeks, Warren suffered Frankfurter’s misgivings on the role of the judiciary, and he weathered Reed’s deep ambivalence about race relations. Warren was persuasive not so much because he offered new arguments or dazzling insights but rather because he listened to his colleagues’ reservations and coaxed them into becoming comfortable with the ruling’s inevitability. And through it all, Warren was gracious. On January 15, he hosted a lunch for all his brethren. Friends ha
d sent Warren a hearty supply of fresh duck and pheasant; rather than store it, Warren invited the justices to join him in a feast. All attended. Eight, including Warren, had duck. Frankfurter preferred pheasant.18

  Warren was equally tactical in the Court’s weekly conferences. There, he shifted discussion from the underlying question of segregation’s constitutionality to the more complex matter of how the Court should draft a decree to carry out that decision. 19 Warren’s sensitivity to the pressures on the South helped soften Clark’s concerns about the proposed integration of schools and also addressed Reed’s fear of that result. Even Black, whose vote was never in doubt, was gravely worried about the manner in which the Court might proceed. And as the Court discussed how to frame such a decree, gradually the justices found themselves no longer talking about whether segregation was legal but rather assuming that it was not and debating how best to dispose of it. Over those weeks, they became more and more accustomed to talking about segregation in the past tense.

  While Warren worked his colleagues, he too was the subject of pressure, administered in his case cloddishly by Eisenhower himself. Eisenhower was a brilliant strategist, a brave military commander, and a shrewd administrator. He understood military power as few men of any generation have, and he projected calm, capable leadership to the nation and world. But for all his many strengths, Eisenhower was a dunce on matters of race. He had allowed Herbert Brownell and the Justice Department to support desegregation in the legal filings and arguments in the Brown case, but the president himself never fully warmed to the idea of the government intervening to place blacks and whites together. He was sophisticated enough not to advertise his discomfort with integration, but one evening during the months that the Court was deliberating over Brown, Eisenhower tipped his hand to Warren.