Justice for All (63 page)

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.
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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.
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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.
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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 had 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.

The occasion was a White House dinner, one of the stag affairs the president hosted regularly. Warren accepted the invitation reluctantly, as the events were an occasion to talk politics, and though Warren loved few topics more, he was reluctant to discuss political matters in public, even the guarded public of a White House dinner. Still, he was not a man to say no to a president, much less the president who had appointed him, so he accepted.
²⁰
Arriving that cold February night, Warren was seated to Eisenhower's right, and within speaking distance of them both was John W. Davis, South Carolina's lawyer in the
Brown
case. That alone was more than enough to offend Warren's sense of propriety, but as the night wore on, his tension increased as Eisenhower again and again made a point to tell Warren what a fine and impressive man Davis was. Thurgood Marshall, of course, was nowhere in sight, so Davis's presence alone demonstrated that the president's admiration for the lawyers in the desegregation cases was limited to the premier lawyer for the South, not his NAACP counterpart. Then, as the dinner ended, Eisenhower led his guests into an adjoining room for drinks and cigars. As the two men passed from one room to the next, Eisenhower took Warren by the arm and confided in him. The Southern states, Eisenhower said to Warren, were full of good will and good intentions. “These are not bad people,” the president said. “All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes.”
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Warren never forgave Eisenhower that crude and stupid remark.

As the justices discussed the segregation cases together in conference and in smaller groups of two and three, Warren found time for a short retreat. He arranged with his chauffeur, a black man, to go on an overnight tour of Southern Civil War monuments outside Washington, D.C. They headed south through Virginia, touring various sites. As afternoon slipped into evening, Warren asked his driver to stop at a local hotel for the night. The two made arrangements for the man to pick Warren up in the morning, and then Warren went inside to register, not really paying attention as his driver shrank back. Perhaps, Warren thought distractedly, he was heading for a cheaper place to stay for the night. The following morning, when the chauffeur came to pick Warren up, it was clear to the chief justice that the driver had spent the night in the car. “What happened?” Warren asked. “Didn't you go to a hotel? Have you slept here all night?”

“Well, Mr. Chief Justice,” the driver replied hesitatingly, “I just couldn't find a place—couldn't find a place to . . .”

Listening to his chauffeur's halting reply, it suddenly dawned on Warren that he had brought a man to a town that would not allow him a room, that the personal assistant of the Chief Justice of the United States was not worthy of a bed in a segregated hamlet within a day's drive of the nation's capital. “I was embarrassed,” Warren remembered toward the end of his life. “I was ashamed. We turned back immediately.”
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Warren was a man who felt most strongly what he experienced directly, and on that day, he was slapped by this direct confrontation with such an odious practice. One can well imagine him in the car, the miles rolling by as he seethed at the indignity to his aide, angry with himself for creating the opportunity for that shame. Warren retained the bitter memory of that day for twenty years, telling it to his children and grandchildren and recounting it to a reporter just a few months before he died.
²³

The indignity of segregation hit Warren hard, but it was not enough, by itself, to shock the Court into action. Even as the end of the term approached, some of the justices remained doubtful about their authority to bar a practice so long sanctioned by the Court. Of the uncertain justices, none was more conflicted than Jackson. A few days before the second round of oral arguments in
Brown,
Jackson had begun to draft a long rumination on the case, one that appears to have been styled as a concurrence.
²⁴
The justice continued to work on it in the early months of 1954, and in his memo, Jackson fretted about the implications of “judicial fiat,” even when directed at so worthy a cause as Negro integration. Jackson wished that Congress would abolish segregation, but worried that if the Court did what Congress would not that it would undermine the Court's prestige and call its legitimacy into question. “Precedent, a usual source of law, is wholly against the idea that the Constitution requires not only equal facilities but mixed and unseparated use of them.”
²⁵
And yet for all his reservations, Jackson could not bring himself to uphold school segregation. Instead, nearing the end of his long memo, he concluded that Negroes had advanced so far in their years of segregation that they had “overcome the presumptions on which it was based.” It was a tortuous analysis, revealing the intense strain upon Jackson as he wrestled with one of the most difficult decisions of his life.