Justice for All (62 page)

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

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

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.