Justice for All (65 page)

The opinions written, Warren circulated them for suggestions and votes—“joins,” as they are called at the Court. It was May 8, a Saturday, when Warren and his clerks hand-delivered copies of their work to the justices, some at work, others at home. Hugo Black, indomitable on his home tennis court, got his copy there. He put it aside and read it when he finished his game.
³⁶
Others jumped to it more quickly, and liked what they saw. Burton, who had supported desegregation from the beginning, read Warren's work and recorded his reaction in his diary. It was, he wrote, “a magnificent job that may win a unanimous Court.”
³⁷

Unanimity was still not guaranteed, however. One of the justices who received his copy from the chief himself was Robert Jackson, and he took it lying down. Jackson had suffered a heart attack on March 30, and by the time the Court was at last coming to grips with
Brown,
he was seriously ill. Warren, ever solicitous, wrote comfortingly to Jackson after the heart attack and visited him in the hospital.
³⁸
With an opinion to share, Warren took it to the justice on Thursday, May 13.
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Prettyman was with Jackson when Warren arrived, and the younger man excused himself while the two justices spoke. Then, informed by a nurse that Warren had departed, Prettyman reentered the room, and Jackson handed him the opinion. “Go read it,” he said. For more than a year, Jackson had agonized about this moment, had turned himself into knots trying to rationalize a decision that squared his politics with his belief in his role as a justice. Prettyman had tried his best to help Jackson in that struggle, and now the justice lay ill, the climax at hand. Prettyman took the opinion, left the room, read it, and then returned, searching Jackson's face for a sign of his response. What Prettyman saw was relief, relief that the opinion was one he could join. It was, Jackson believed, “a master work.”
⁴⁰
Jackson's hard-won vote was now secure.

Frankfurter, too, now set aside his reservations and joined the gathering confidence of his brethren. “He saw this movement toward unanimity and clearly felt that was the most important thing,” one of his clerks recalled later. “So he was ready to jump on the bandwagon.”
⁴¹
Being Frankfurter, he continued to tinker, suggesting small changes, some of which Warren adopted. Clark also agreed to join, and his only request was a trivial one: One footnote citing the social science evidence on the harmful effects of discrimination cited an author, identifying him only as “Clark.” Justice Clark asked that the author's initial be added so that no one would think he was the researcher in question. Later, Warren would have cause to regret having not looked more carefully at that footnote. For now, he agreed to Clark's request without hesitation and left the rest of the footnote as written.

The most stalwart defender of segregation among the brethren had been Stanley Reed. He had practiced it, argued for it, and defended it. But Warren was a hard man to resist, and in this case Reed's dignity and patriotism both made him susceptible to the chief's main line of argument. The Court was going to strike segregation with or without Reed; the only question was whether his dissent, should he offer one, would accomplish anything for the country he had so long served or whether it would merely divide and prolong conflict over the institution of segregation. At some point, Warren brought the matter to the point. “Stan,” the chief said to his colleague, “you're all by yourself now. You've got to decide whether it's really the best thing for the country.”
⁴²
Reed held out for the promise that the South would be given time to implement the Court's order. Once so assured, he joined. And with that, the prospect of a dissent in
Brown
disappeared.

Earl Warren had done in less than a year what had perplexed and befuddled Fred Vinson for his entire tenure. He had united his brilliant Court into a single voice on an issue of moral urgency. On May 15, the justices met at the regular Saturday conference and voiced their approval for the final drafts of
Brown
and
Bolling
. Both were unanimous. It was, Burton noted to his diary, “a major accomplishment for [Warren's] leadership.”
⁴³
Had the matter been decided a year earlier, Burton speculated, it would have come out 6-3 for striking segregation, precisely the sort of divided Court that would have encouraged segregationists in the belief that theirs was a defensible idea.
⁴⁴

That Sunday was the first sunny weekend day of the month along the Eastern Seaboard, and families celebrated with days outdoors. In Brooklyn that afternoon, the Dodgers split a double-header in front of a sellout crowd; fans cheered as Jackie Robinson was intentionally walked in the sixth, and then Gil Hodges made the Reds pay for it when he hit a grand slam to score Robinson, Pee Wee Reese, and Duke Snider. Across town, Willie Mays made a sensational catch in the deep reaches of the Polo Grounds to end the Braves' fourth inning, then homered in the fifth, leading the Giants to a win in their nightcap.

In Washington, Warren spent the day in the company of his colleague William O. Douglas doing what Douglas loved most. They hiked along the C&O Canal, an old route from Washington out to Maryland that ran along the banks of the Potomac River.
⁴⁵
As in New York, it was a beautiful day, cool in the morning, and warming as the two met at eleven-thirty for their walk. It grew warmer still as the sun beat down on the backs of those two colleagues joined together at a pivotal moment in the history of the country they both served.

Douglas and Warren had much in common. Both were born in the closing years of the nineteenth century. Both were raised in the West before coming East to find their places at the head of a nation, dreaming first of the presidency but finding their ways blocked there, settling in instead at the Court. Both were outdoorsmen, though of different types: Warren hunted and fished, enjoyed nature in the style of men of his generation; Douglas was a more modern environmentalist, one touched by the poetry of wilderness. The canal along which he and Warren walked that day was a particular love. When the
Washington Post
had dared to suggest a highway for Douglas's prized 185 miles of canal, the justice challenged the paper's editorial writers to join him on a hike and did so with the poetry of which he was capable. Douglas predicted that anyone who came to these woods would “hear the roar of wind in thickets; he would see strange islands and promontories through the fantasy of fog; he would discover the glory there is in the first flower of spring, the glory there is even in a blade of grass; the whistling wings of ducks would make silence have new values for him.”
⁴⁶
The writers accepted the challenge and then, bowing to the intrepid Douglas, backed down, as he had predicted. The paper soon withdrew its endorsement of the highway.

Warren and Douglas may have come to their positions by different routes, but on this glorious spring morning, they set off together along the river. Douglas probably moved quickly. He usually did. Warren, a languid bear to Douglas's gazelle, would have struck a more temperate pace. If their common ideals reflected that which Warren and Douglas shared, their gaits hinted at their profound differences as well. Douglas could be a bitter man, estranged from colleagues and family, accustomed by then, his fifteenth year on the Court, to dissenting, often just with Black. For Douglas, judging had become easy. He was secure to a fault, insufferable at times, unwavering and uncompromising in his judgments of the law and of others. With him that day was, by comparison, a neophyte of judging, a justice on the eve of his first major decision. Warren was a more compassionate and open man than Douglas, immersed in a stable and happy family from which he drew great comfort. Warren did not have Douglas's crackling genius, nor did he share Douglas's bleak isolation from those around him. But William Douglas did not begrudge Earl Warren his intelligence, and Warren did not object to Douglas's iconoclasm. That afternoon, these two men—the Court's established, cranky genius and its still new, genial leader—walked the canal with the knowledge that within hours, they would make history together.

The justices had gone to lengths to protect against leaks in the desegregation cases, but by Monday morning, word had begun to spread within the small circle that surrounds the Court. Warren, who had had dinner with Attorney General Herbert Brownell on Saturday, tipped him off that Monday would be a smart day to show up at the Court; Brownell was in the audience, as was former Secretary of State Dean Acheson. So was Nina Warren, making a rare appearance at her husband's workplace, this time arriving with a surprise for Warren. Nina was accompanied by their old friend Helen MacGregor, there to seek admission to the Court bar. Despite the magnitude of the occasion, Warren did a double-take when he saw his old friend.
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Most telling was the arrival of Jackson, who dragged himself from his hospital bed over Warren's protests, determined that his unexpected return to the Court should emphasize the brethren's unity.
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Among the clerks, anticipation had been building for weeks as the end of the term drew near. That morning, one of Clark's clerks came back from the Court printshop and noticed a batch of opinions without a docket number, which suggested that a secretive move was a afoot. “Something's going to happen,” he told his colleagues.
⁴⁹

The justices took the bench at precisely noon. There were other cases to be announced, and at first the session seemed routine. Some of the reporters covering the Court were downstairs in the pressroom, lulled into complacency by the assurance of a court official that it looked like “a quiet day.”
⁵⁰
Then Banning H. Whittington, the Court's information officer, slipped his coat on and moved toward the stairs. “Reading of the segregation decisions is about to begin,” he announced. Reporters leapt from their chairs and rushed for the door. As they entered the courtroom, it was 12:52 P.M. Warren had just begun.

“I have for announcement,” he said, “the judgment and the opinion of the Court in Number 1:
Oliver Brown et al. v. Board of Education of Topeka
.” For several minutes, Warren read from the opinion, with its union of his original language, Pollock's deft edits, and the minor revisions adopted at the request of the brethren. He recapped the history of the Fourteenth Amendment and the uncertainty about its framers' intentions;
Plessy
's introduction of separate-but-equal; the Court's rulings that admitted black students to graduate schools but never took direct aim at
Plessy
itself; and the modern primacy of public education in American life. Not until the tenth paragraph of the fifteen-paragraph opinion did Warren indicate which way the Court was headed. It was then he read the question that he had posed as to whether segregation itself deprived black children of equal opportunity. He answered the question as he had in his initial draft. “We believe that it does,” Warren said from the bench.

Two more paragraphs summed up the cases
Sweatt v. Painter
and
McLaurin v. Oklahoma State Regents,
which established the principle that equal educational opportunity extended beyond mere classrooms and facilities and reached to intangible factors. Warren then cited the Kansas court that had found, even in upholding segregation, that separating white and black children was bad for black children. Segregation was not equality. Warren acknowledged that such a finding might not have been reachable at the time of
Plessy.
It was reachable now, however, and Warren and his brethren endorsed it.

The document before Warren then read, “We conclude that in the field of public education the doctrine of ‘separate but equal' has no place. Separate educational facilities are inherently unequal.” Those words were stirring enough. With them, the segregated school systems of seventeen states were struck down as unconstitutional.

But Warren amended them as he delivered the opinion from the bench, adding a word that gave moral clarity to the legal result. “We
unanimously
conclude . . .” he read. With that, the nation took a deep and satisfying breath. Sitting before the Court, Thurgood Marshall turned his amazed look at Stanley Reed. Reed stared down from the bench and nodded almost imperceptibly. As Marshall watched, Reed wiped a tear from his cheek.

From his seat at the center of the Court's great bench, Warren too felt the rumble of his words. “When the word ‘unanimously' was spoken, a wave of emotion swept the room,” he wrote in his memoirs, “no words or intentional movement, yet a distinct emotional manifestation that defies description.”
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Oliver Brown's wife was working at home in Topeka when the news came over the radio in a bulletin. She went on with her ironing. Their historic case, which bore her husband's name, was finished.
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In Alabama, a young man named Martin Luther King, Jr., had just become pastor-designate of Dexter Avenue Baptist Church.
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His parishioners also received the news quietly, but it soon burrowed its way into King's consciousness. With the unanimous Court behind it,
Brown,
the young pastor wrote, “came as a joyous daybreak to end the long night of human captivity. . . . It was a reaffirmation of the good old American doctrine of freedom and equality for all men.”
⁵⁴

King was right to cite “good old American” doctrine, with its echo of the first document that established America's independence and singularity. The Court's opinion, in Warren's hands, had effectively written the Declaration of Independence—and its long-neglected promise of equality—into the Constitution. With one opinion, one
unanimous
opinion, the Warren Court was born. Over the next sixteen years, the nation embarked on what would prove an uneven, controversial, halting, and noble drive to imbue the Constitution with the values of the Declaration. The urgent pursuit of American equality, so long promised, so long avoided, was under way. Earl Warren was at its head.