by Jim Newton
Little Rock threatened to reerupt the next year, and local officials once again sought a delay from the district court, where they asked that integration be discontinued for two years and the Negro students already admitted to Central High be resegregated and sent to black schools. (Of the original nine, one had graduated and one, Minnie Jean Brown, had let down her guard for one moment. After months of silence, she snapped back when a white student called her a “nigger bitch.” Minnie responded, “White trash,” and was expelled.)63 This time, the judge granted Little Rock’s request, approving a two-year postponement in the desegregation effort in order to give the community time to cool off. The NAACP appealed, and the judge’s delay order was overturned by the Eighth Circuit Court of Appeals. The Supreme Court then rushed into special session to consider the case and decide it in time for the new school year to begin.
Oral argument was set for August 28, and Warren hurried back to Washington from his vacation in California. He arrived on August 27, and met privately first with Black and then with Frankfurter. The following morning, he called the Court together into conference for an hour before he led the justices through the red velvet curtain. Thurgood Marshall was back again for the NAACP, and Richard Butler represented the Little Rock school board. Marshall was his comfortable self, graciously received and interrupted only occasionally as he rehashed arguments he had made before: The rights of the Negro boys and girls of Little Rock could not be placed on hold merely because the citizens of that city objected or because school or state officials believed more time would allow a smoother transition. The school district had used its time; now was the moment for implementation. “The rights we seek,” Marshall reminded the justices, who needed no reminding, “are rights that have been recognized by the federal courts.”
Butler knew he was arguing his case to an unsympathetic audience, but he managed through most of his time to make it without obviously agitating Warren or the brethren.64 That surface amicability broke down near the end, however, as Butler returned after lunch to conclude and quickly locked horns with Warren. Earlier, Warren had attempted to express the Court’s understanding of Little Rock’s difficulties, trapped as it was between a Supreme Court edict and a recalcitrant governor, but when Butler tried to turn that sympathy into a defense, Warren bristled.
“Regardless of whether or not the people of Arkansas should recognize the United States Supreme Court decisions as the law of the land,” Butler began, “the plain fact is that they have not, and it is most difficult for them to do so if not impossible when the governor of the state says that that is not the law of the land, that only Congress can really say what the law of the land is.” That would have been pushing his luck, but Butler then attempted to reach Warren by reminding him that he, too, had “been the governor of a great state.”
To equate Warren of California with Faubus of Arkansas was more than Warren would allow: “I never tried to resolve any legal problem of this kind as governor of my state. I thought that was a matter for the courts, and I abided by the decision of the courts, whether they were the courts of my state or, in their proper jurisdiction, the federal courts.”
Butler should have stopped there, but in the heat of his argument, he pressed on. “We all realize that, sir,” the lawyer insisted. “The point I’m making is this: 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.” That was lunacy—the suggestion that a governor’s publicly expressed doubts about the law meant that it was not “really resolved”—and it cut to the flaw in Little Rock’s argument. If true, it meant that the Court’s word on Brown was not in fact final until and unless Faubus said it was. Warren had heard enough of interposition and defiance. He could contain himself no longer.
“But I have never heard such an argument made in a court of justice before,” he said, his voice tight and his words coming unusually fast. “And I’ve tried many a case over many a year, and I have 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.”
Butler tried to dig himself back out, saying that he only was trying to point out that the people of Arkansas were understandably confused when their governor preyed on their hope that there was something not final about the word of the Supreme Court. They were particularly susceptible to Faubus’s claims, Butler said, because he was a respected state leader. “The short answer to that,” Warren growled, “is that if they want to believe it, they’ll believe it no matter who says it.”65 That was, for all practical purposes, the end of Butler’s presentation and of his case.
So brusque was Warren with Butler that a legend has grown up around that day’s argument. Often repeated is a reported exchange at the outset of the argument, when Butler was said to have begun by introducing himself as appearing “on behalf of the people of Little Rock.” At that, the legend has it, Warren interrupted to demand, “What people?” From which Butler is said never to have fully recovered. 66 That exchange, though recalled by Ira Michael Heyman, a brilliant young man who clerked for Warren that term (and whose career soared afterward, eventually taking him to the head of Warren’s alma mater, the University of California, Berkeley), is not borne out by the transcript or the tape recording of that day’s argument. Yet its persistence says much about what those close to Warren saw of his mood in those weeks. Warren was a patient man, but Southern resistance had toppled his reserve.
After concluding the argument, the Court set a second session for September 11, determined to resolve the standoff in Little Rock before the beginning of the school year. That morning, before the lawyers came to Court, Warren met privately with Brennan. As he had demonstrated during the August oral argument, Warren was fed up—frustrated by a president who could only be goaded into action by a direct threat to his authority; furious at the presumption of Southern officials, even among the lawyers who appeared before him, that they could openly question the Court’s authority; dumbfounded by the silly and dangerous spread of “interposition.” This case offered Warren and his brethren the chance to assert the Court’s power and clarify the duty of others to accede. Frankfurter remained convinced that there was a viable political center in the South, and he hoped the opinion and the argument would reach those moderates; he went so far as to urge Warren to open the argument by complimenting Butler on the district’s attempts to integrate.67 Warren disagreed. He was done urging.
Butler barely had a chance to present his argument, so often was he interrupted by the justices. He tried time and again to elicit sympathy for the school board he represented by pointing out that it was caught in the middle of a conflict between the state and federal governments, that it had tried to implement a desegregation plan but found itself thwarted by a governor who refused any integration and a federal government that insisted its courts be obeyed. For the Court to accept Butler’s position it would in essence have had to agree that its own orders could be ignored. And Warren’s unwillingness to do so was underscored by his barely suppressed fury that four years after it commanded desegregation, so many parties continued to avoid their duties under Brown. “If we stop that program [Little Rock school desegregation], we are denying this same right to approximately 40 percent of the children of your community, aren’t we?” Warren asked Butler, referring to the Negro children of Little Rock.
“We take the position that you are not denying the right. You are delaying the fulfillment of a constitutional right which you have said they have,” Butler replied.
“Well, this decision, the Brown decision, was in 1954,” Warren said with a sigh. “This is 1958. Two and a half years will bring it up almost to 1961. Now if all those children are denied the right to go to the elementary schools, aren’t they being denied permanently and finally a right to get equal protection under the laws during their primary grade years?”
; “They would be deprived of the personal fulfillment of what we consider an intangible right expressed by this Court,” Butler said.
It took a moment for that to sink in, but Warren then pounced on Butler’s revealing reply. “Why do you call it an intangible right?” he asked.
Butler was caught. “Well, I was distinguishing that as against monetary rights,” he responded lamely.
“If somebody was to deprive you of life, liberty or property, would that be an intangible right?” Warren asked. Butler’s answer—“I did not have in mind that sense”—spoke volumes about the vacuity of his argument.
All that was left was for Thurgood Marshall to dispense with the notion that the Little Rock School Board deserved the Court’s sympathy rather than its order. Marshall did so in fine fashion. Yes, he acknowledged, the past months had been difficult. There was the gauntlet of the previous year, the mobs, the troops, the threatening letters and phone calls. But there also were Negro children who had been promised an integrated classroom by the unanimous Supreme Court of the United States. They had entered those classrooms through mobs. And now Little Rock proposed to take them out again, to yield to the mob rather than to the pleas of those whose rights were being violated. They were not abstractions, those children. They were young boys and girls with constitutional rights. If that made life difficult for the school board, so be it. Marshall’s best line summed up the case in three words: “Democracy is tough.”68
The second oral argument in Cooper v. Aaron was intriguing for what it said about Warren’s mood, but the Court had already made up its mind, and announced its decision the following day. Little Rock officials were directed to proceed with integration; the district court’s granting of the delay was overturned. It took a few more weeks for Brennan, working closely with Warren throughout, to polish his opinion—Harlan tried his hand at a draft as well, but the final work relied much more heavily on Brennan’s approach.69 When it was released, it bore the earmarks of Warren’s exhausted patience. Cooper asserted, once and for all, that the Court was the last word on the Constitution and that all officials, state and federal, must accept it. Enough of interposition, it effectively said: We are the law; you will obey. The opinion spoke that command most forcefully and eloquently in a passage written by Black and used at the outset:
As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State 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. . . . We are urged to uphold a suspension of the Little Rock School Board’s plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.70
After an exhaustive review of the facts and legal history of the case before it, the Court then upbraided Arkansas officials with a condescendingly rudimentary lesson in constitutional law—citing John Marshall for the elementary proposition that the Court interprets the Constitution and no intervening state authority may contravene that. Then, at the suggestion of Harlan, the opinion drew to a close by calling explicit attention to the unanimity of Brown and the continued unanimity of the Court despite the departure and replacement of three members of the original Brown Court. “Since the first Brown opinion three new Justices have come to the Court,” the opinion noted. “They are at one with the Justices still on the Court who participated in that basic decision as to its correctness, and that decision is now unanimously reaffirmed. ”71 Rather than merely bearing the name of its principal author, Brennan, and listing the other justices as having joined, Cooper v. Aaron was signed by all nine members of the Court, a legally meaningless flourish but a memorable one meant to highlight the Court’s resolve even in the face of its changing membership. Cooper was about demonstrating that the Court meant business.
As Brennan was putting the final touches on Cooper—incorporating Black’s stirring opening passage and adopting suggestions by Harlan for the conclusion—Frankfurter once again annoyed Warren. Despite Frankfurter’s long belief in the power of unanimity in the segregation cases, he chose this moment to write for himself, apparently believing that his tutelage of so many lawyers as a professor gave him a special ability to persuade the ever-elusive Southern moderate to listen to the Court. When Warren learned that Frankfurter intended to write a concurrence to Cooper, he was furious. He, Brennan, and Black tried mightily to persuade Frankfurter not to do it, but Frankfurter was adamant. “This caused quite a sensation on the Court,” Warren recalled.72 In fact, Frankfurter’s concurrence—which substantively added little if anything to the ruling of the Court, which he joined—ended what was left of the relationship between Warren and Frankfurter. They now openly disliked each other; the rift from Cooper never healed.
Warren’s insistence on obedience to his Court was both constitutionally correct and emotionally inevitable. He had struggled from 1954 through 1958 to protect minorities and dissidents from an often indifferent American political leadership. And yet even as Cooper made clear that the Court meant to be taken seriously, Warren and his colleagues effectively withdrew.
Conventional wisdom records the history of the Warren Court as a straight line—an unbroken series of activist rulings on behalf of individual rights. In fact, as Powe astutely notes, 1958 was a signature year in the Court’s history, for it combined two nearly opposite events: the assertion of power in Cooper and the near loss of that power in Congress, what Powe terms the Court’s “near-death experience.”73 The latter event shook the Court’s libertarianism and effectively displaced Warren as its leader for a time.
The first signs that the Court’s political support was bottoming out came early in 1958, when Learned Hand, prodded by his friend Frankfurter, completed and delivered the Oliver Wendell Holmes Lectures at Harvard .74 By 1958, Learned Hand was an old man, eighty-seven, and his lifetime of thought about the proper role of judges in a democratic society poured out in the lectures. There was a tinge of bitterness in Hand’s work, but there was eloquence, too, and deep consideration, the melding of judicial notions that he had honed in his long service on the bench and his extensive, unguarded correspondence with friends such as Frankfurter. While Hand in his lectures never mentioned Warren or his court by name, Hand’s discomfort with Warren specifically and of activist judging generally was laced through the three discussions, particularly in the final day. “For myself,” Hand told his standing-room-only audience near the conclusion of his talk, “it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs.”75
Hand’s critique was far too scholarly to be generally appreciated—indeed, many of those who did understand it disagreed—but it encouraged the Court’s two main legions of critics, the anti-Communists and the Southern racists. Buoyed to be in such learned company and still stinging over Red Monday and the never-ending indignities of the desegregation cases, those two camps pooled their efforts and introduced a host of bills intended to limit the Court’s authority or otherwise curb and embarrass it. By spring, the Congress was teeming with ideas for how to restrict the power of the Court. The chief vehicle for doing so became known as the Jenner-Butler bill, which sought to strip the Court of its jurisdiction over domestic-security cases, an idea which, if adopted, would have vastly reduced the Court’s power to control its own docket and to police lower court decisions in that field. In addition, passage would have emboldened the Court’s critics and opened the door for further congressional tampering.
Warren refused to give quarter. Through late 1957 and early 1958, he and Frankfurter fenced over the case of
Albert L. Trop, who, while serving as a private in the Army stationed in Morocco, escaped from the stockade in Casablanca and was arrested the following day on the road to Rabat. He was sentenced to three years of hard labor for desertion and was dishonorably discharged. That might have ended Trop’s ill-conceived desertion, but years later, when he applied for a passport, it was denied because the government concluded that he had forfeited his citizenship by deserting from the Army. Hard labor was one thing, citizenship another. Trop sued to regain it, arguing that Congress did not have the power to pass a bill to strip him of his most basic American right—the right to be an American.76 Frankfurter sided with the government, and initially the Court did as well. His drafts from late 1957 are listed as an “opinion of the Court.” But Warren worked his justices as he circulated his thoughts. As late as March 14, 1958, Warren still thought he would file a dissent, but that draft included a new statement about the vitality of the Constitution, and it picked up enough votes to transform it into a majority opinion, one whose language would prove among the most resilient of his work.77 Analyzing the Eighth Amendment’s protection against cruel and unusual punishment, Warren wrote, “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”78 Rarely has the idea of an evolving Constitution found better expression .79
A more timid chief justice might have let Trop go the other way. For as Warren won over his Court in that case, the pressure in Congress against it was rapidly building. By the summer of 1958, the situation was bleak indeed. In highlighting this nearly forgotten episode in the Court’s history, Powe compares it to the brinks-manship of the Court-packing debate early in FDR’s tenure. That fracas drew much more public attention because it centered so personally on the justices. But the 1958 clash over Jenner-Butler was in some ways even more dire, as it threatened not just the personnel of the Court but its structural and political integrity. And where Court-packing was handily defeated, Court-stripping came within a razor-thin margin of victory at a time when President Eisenhower was in no mood to save it. Indeed, Eisenhower had grown so exasperated with Warren—and by now, Brennan, too—that when Burton went to talk to him that summer about retiring, the president “evidenced disappointment” with those two appointments, remarkably indiscreet of the president given that Burton was a colleague of Brennan’s and Warren’s. 80