By Michael J. Klarman
As the nation marks the fiftieth anniversary of the Supreme Court’s ruling in Brown v. Board of Education, it is worth pondering why the justices found the case so difficult and what the decision’s implications were for the Civil Rights Movement. Most people today would be surprised to learn that Brown was a hard decision for the justices. If statemandated segregation in public schools was not unconstitutional, what was? That the ruling in Brown was unanimous, moreover, suggests that the justices found the case to be easy. Appearances can be deceptive.
In a memorandum written the day that Brown was decided--May 17, 1954--Justice William O. Douglas observed that had the case been decided immediately after it was first argued in December 1952, “the vote would have been five to four in favor of the constitutionality of segregation in the public schools.” Justice Felix Frankfurter wrote that a vote taken after the initial argument would have invalidated segregation by only five to four, with the majority writing several opinions.
Brown was hard for many of the justices because it posed a conflict between their legal views and their personal values. The sources of constitutional interpretation to which they ordinarily looked for guidance--text, original understanding, precedent--seemed to indicate that school segregation was permissible. By contrast, the personal values of most of the justices condemned segregation, which Justice Black called “Hitler’s creed.” Their quandary was how to reconcile their legal and their moral views.
Frankfurter had long preached that judges must decide cases on “the compulsions of governing legal principles,” not “the idiosyncrasies of a merely personal judgment.” He undoubtedly abhorred racial segregation. In the 1930s Frankfurter had been an adviser to the NAACP, and in 1948 he had hired the Court’s first black law clerk, William Coleman. Yet in a memorandum that he wrote while Brown was pending, Frankfurter insisted that his personal views on segregation were of limited relevance to the constitutional question: “However passionately any of us may hold egalitarian views, however fiercely any of us may believe that such a policy of segregation as undoubtedly expresses the tenacious conviction of Southern States is both unjust and shortsighted, he travels outside his judicial authority if for this private reason alone he declares unconstitutional the policy of segregation.”
Frankfurter had difficulty finding a legal argument for striking down segregation. His law clerk, Alexander Bickel, spent a summer reading the legislative history of the Fourteenth Amendment, and he reported to Frankfurter that “it is impossible to conclude that the 39th Congress intended that segregation be abolished; impossible also to conclude that they foresaw it might be, under the language they were adopting.” To be sure, Frankfurter believed that the meaning of constitutional concepts can change over time. But as of the early 1950s, twenty-one states and the District of Columbia still had segregated public education; Frankfurter could hardly maintain that evolving social standards condemned segregation. Judicial precedent strongly supported it. Of forty-four challenges to school segregation adjudicated by courts between 1865 and 1935, not a single one had succeeded. Frankfurter ordinarily revered precedent, which he called “the most influential factor in giving a society coherence and continuity.”
Brown presented a similar dilemma for Justice Robert H. Jackson. He too found segregation anathema. In a 1950 letter, Jackson, who had left the Court for a year in 1945-1946 to prosecute Nazis at Nuremberg, wrote to a friend: “You and I have seen the terrible consequences of racial hatred in Germany. We can have no sympathy with racial conceits which underlie segregation policies.” Like Frankfurter, Jackson thought that judges were obliged to separate their personal views from the law, and he disfavored the frequent overruling of precedent.
Jackson revealed his internal struggles in a draft opinion that began: “Decision of these cases would be simple if our personal opinion that school segregation is morally, economically or politically indefensible made it legally so.” But when he turned to the question of whether “existing law condemns segregation,” Jackson had difficulty answering in the affirmative: “Layman as well as lawyer must query how it is that the Constitution this morning forbids what for threequarters of a century it has tolerated or approved. He must further speculate as to how we can justify this reversal of its meaning by the branch of the Government supposed not to make new law but only to declare existing law. . . .”
That this group of justices would be uneasy about invalidating segregation is not surprising. All had been appointed by Presidents Roosevelt and Truman on the assumption that they opposed the judicial activism of the preceding era, when the Court had invalidated minimum-wage, maximumhour, and protective labor legislation. For most of their professional lives, these men had criticized untethered judicial activism as undemocratic. The question in Brown, as Jackson’s law clerk William H. Rehnquist noted, was whether invalidating school segregation would eliminate any distinction between this Court and its predecessor, except for “the kinds of litigants it favors and the kinds of special claims it protects.” Several justices agreed with the sentiment expressed by Chief Justice Vinson: If segregation was to be condemned, “it would be better if Congress would act.” Jackson lamented, “If we have to decide the question, then representative government has failed.”
How were the justices able to overcome their ambivalence and vote unanimously to invalidate school segregation? All judicial decision-making involves elements of law and what might loosely be called “politics.” Legal factors include the text of the Constitution, the original understanding of its provisions, and judicial precedent. Sometimes these legal factors point clearly toward a particular result; other times they do not. Political factors include the personal values of judges, broader social mores, and external political constraints.
When the law is clear, judges will generally follow it, unless they have very strong preferences to the contrary. When the law is relatively uncertain, judges have no choice but to consult their own values and broader social mores. In Brown the law was reasonably clear: segregation was constitutional. For justices to reject that finding suggested that they had very strong personal preferences to the contrary. And they did.
By the early 1950s there had been dramatic changes in racial attitudes and practices resulting from World War II. In 1947 Jackie Robinson had desegregated major league baseball. In 1948 President Truman had issued executive orders desegregating the federal military and civil service. In 1950 Ralph Bunche had become the first black man to win a Nobel Peace Prize.
Startling changes in racial practices were also occurring in the South. Black voter registration in Mississippi and Alabama had increased tenfold in the decade after World War II. Dozens of urban police forces in the South hired their first black officers. Minor league baseball teams, even in places such as Montgomery and Birmingham, Alabama, signed their first black players. Most southern states peacefully desegregated universities under court order. Blacks began serving again on southern juries. Outside of the Deep South, the first blacks since Reconstruction were elected to urban political offices.
As they deliberated over Brown, the justices expressed astonishment at the scope of the recent changes. Jackson noted that segregation “has outlived whatever justification it may have had. . . . Negro progress under segregation has been spectacular and, tested by the pace of history, his rise is one of the swiftest and most dramatic advances in the annals of man.” Frankfurter noted “the great changes in the relations between white and colored people since the first World War,” and he remarked that “the pace of progress has surprised even those most eager in its promotion.”
It was these sorts of changes that made Brown possible. Frankfurter later noted that in the 1940s he would have voted to uphold public school segregation because “public opinion had not then crystallized against it.”
Brown did not create the racial reform movement that swept the nation in the 1950s and 1960s, but it contributed to the movement. Brown dramatically increased the salience of the segregation issue, provided hope to African Americans, and led them to bring legal challenges to school segregation in the South. But Brown may have mattered even more in an unexpected way: it helped ensure than when protests, sit-ins, and freedom rides came to the South in the 1960s, politicians such as Bull Connor and George Wallace were there to meet them with violence. Brown helped expose the viciousness of Jim Crow.
In the wake of Brown, politicians in southern states maneuvered against one another to prove their segregationist credentials. Racial moderates, who denounced diehard resistance to Brown, were labeled “double crossers,” “sugar-coated integrationists,” “cowards,” and “traitors.”
Although most southern politicians avoided explicit exhortations to violence, they used extremist rhetoric that encouraged it. Senator James Eastland of Mississippi condemned Brown as “illegal, immoral, dishonest, and a disgrace,” and he proclaimed that “resistance to tyranny is obedience to God.” Governor Marvin Griffin of Georgia insisted that “no true Southerner feels morally obliged to recognize the legality of this act of tyranny.” Congressman James Davis of Georgia called Brown “a monumental fraud which is shocking, outrageous and reprehensible,” and he denied any obligation on “the people to bow the neck to this new form of tyranny.”
Brown advanced the political careers of particular politicians who used brutal tactics against peaceful demonstrators. The backlash against these tactics directly inspired the enactment of civil rights legislation. T. Eugene “Bull” Connor had been a city commissioner in Birmingham, Alabama, since 1937. In the early 1950s, civic leaders drove him out of politics because his racial extremism and brutality toward blacks undermined their efforts to burnish the city’s reputation. When Connor retired from public life in 1953, racial progress ensued. Birmingham established its first hospital for blacks, desegregated elevators in downtown office buildings, and worked toward desegregating the police force.
After Brown, Birmingham’s racial progress ground to a halt. In 1957 Connor regained his seat on the city commission, defeating an incumbent he attacked as weak on segregation. A powerful contingent of the Ku Klux Klan wreaked havoc in the city. Dozens of black homes and churches were bombed, while the police, under Connor’s control, declined to intervene. Standing for reelection in 1961, Connor offered the Ku Klux Klan fifteen minutes of “open season” on the Freedom Riders as they rolled into town. Connor won in a landslide.
In 1963 the Southern Christian Leadership Conference (SCLC) was searching for a southern city with a police chief whose opposition was likely to produce televised scenes of police brutality that could shock the nation’s conscience. They selected Birmingham because of Connor, and the strategy worked brilliantly, albeit tragically. The police commissioner unleashed police dogs and fire hoses on unresisting demonstrators. The images carried by the national news media repulsed the nation; President John F. Kennedy reported that they made him “sick.”
The televised scenes altered northern opinion on race and helped bring about the passage of the 1964 Civil Rights Act. Before Birmingham, only 4 percent of Americans deemed civil rights the nation’s most urgent issue; afterwards, 52 percent did. Only after Birmingham did Kennedy announce on national television that civil rights was a “moral issue as old as the scriptures and as clear as the American Constitution.” He proposed landmark civil rights legislation to end Jim Crow.
Even more than Connor, Governor George Wallace of Alabama personified the post-Brown racial fanaticism of southern politics. Early in his political career, Wallace had been criticized as soft on segregation. By the mid-1950s, he felt the shifting political winds and became an ardent segregationist. After losing the 1958 gubernatorial election to a candidate who was endorsed by the Klan, Wallace ruminated that “they out-segged me that time, but they will never do it again.” In 1962, Wallace won on a campaign promise of defying federal integration orders, “even to the point of standing at the schoolhouse door in person.” Wallace declared in his inaugural address: “In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny and I say segregation now, segregation tomorrow, segregation forever.”
In the summer of 1963, Wallace stood in the schoolhouse door at Tuscaloosa, physically blocking the university’s entrance before stepping aside in the face of superior federal force. That September, Wallace used the state militia to block the court-ordered desegregation of public schools in Birmingham, Mobile, and Tuskegee, and he encouraged local extremists to wage “a boisterous campaign” against desegregation.
Threatened with judicial contempt citations, Wallace eventually relented. He protested, “I can’t fight federal bayonets with my bare hands.” The schools desegregated, but within a week tragedy struck. Birmingham Klansmen dynamited the Sixteenth Street Baptist Church, killing four black schoolgirls. Within hours of the bombing, two other black teenagers were killed. It was the largest death toll of the civil rights era, and Wallace received much of the blame. “The individuals who bombed the Sixteenth Street Church,” said Alabama Attorney General Richmond Flowers, “in their way were standing in the schoolhouse door.”
Tens of thousands of Americans participated in memorial services and marches. Northern whites wrote to the NAACP to join and to apologize. A white lawyer from Los Angeles wrote that “today I am joining the NAACP; partly, I think, as a kind of apology for being caucasian.” A white man from New Rochelle wrote: “How shall I start? Perhaps to say that I am white, sorry, ashamed, and guilty. . . . Those who have said that all whites who, through hatred, intolerance, or just inaction are guilty are right.” The NAACP urged members to flood Congress with letters in support of civil rights legislation that would “curb such outrages.”
Early in 1965, the SCLC brought its voter registration campaign to Selma, Alabama, in search of another Birmingham-style confrontation. Martin Luther King Jr. and his colleagues chose Selma partly because of the presence there of a law enforcement officer with Bull Connor-like proclivities--the sheriff of Dallas County, Jim Clark. The plan worked. Governor Wallace had promised that the civil rights marches would be broken up by “whatever measures are necessary.” Clark and his officers assaulted marchers as they crossed the Edmund Pettus Bridge on the way to Montgomery on March 7, 1965, in what became known as Bloody Sunday. That evening, ABC television interrupted its broadcast of Judgment at Nuremberg for a lengthy report of peaceful demonstrators being assailed by stampeding horses, flailing clubs, and tear gas.
Over the following week, huge sympathy demonstrations took place across the country, and hundreds of clergymen flocked to Selma to show their solidarity with King and his comrades. Citizens demanded remedial action from their members of Congress, many of whom condemned the violence and endorsed voting rights legislation. On March 15, 1965, President Johnson proposed such legislation before a joint session of Congress. Seventy million Americans watched on television as the president beseeched them to “overcome this crippling legacy of bigotry and injustice.”
The post-Brown fanaticism of southern politics had created a situation that was ripe for violence. When that violence occurred--southern white law enforcement officers brutalizing peaceful demonstrators--national opinion on race was transformed and the passage of civil rights legislation became feasible. By helping to lay bare the viciousness at the core of white supremacy, Brown accelerated its demise.