AN INTRODUCTION FOR THE STUDENT OF CONSTITUTIONAL LAW I. THE CONSTITUTION AND POLITICS

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1 1 AN INTRODUCTION FOR THE STUDENT OF CONSTITUTIONAL LAW I. THE CONSTITUTION AND POLITICS These comments are introductory and preliminary comments about the material in this course. These comments focus on characteristics of United States courts system, the U.S. Supreme Court, and judicial procedures, as well as the court s political and judicial context. Much of this discussion can be focused around a story or a case that illustrates a good deal about the operation and structure of the courts in America and the development of law and public policy by our courts, and the Supreme Court in particular. There are fundamental points that should be made about constitutions and constitutional law at the outset. A constitution is an organic act. It constitutes or organizes a government and outlines the exercise of political power in a nation. While some constitutions are not even written down, but rather based on historical practice, the American Constitution was drafted by the Framers in a Constitutional Convention in We have a written outline of governmental structure, power, process, and limits. The fact that the Constitution does not address all contingencies and its meaning has evolved, merely gives the opportunity to study changes in constitutional law and the constitution. Just because a constitution is a fundamental constitutive act does not mean it cannot or does not change over time. The U.S. Constitution performs two sets of functions for the political system and the people of this country. First, it structures and organizes the government. That means the three branches of government and their powers and limits are outlined in the Constitution. The system of the Separation of Powers is clearly implied by the Constitution, because of the tripartite form of government is specified there. The Checks and Balances among the branches are evident in the Constitution even though the Framers did not use that term. Some of the features of the federal/state relationship are also set forth in the Constitution. The second function of the Constitution focuses on the relationship between the people, as individuals, and the government. These are largely specified as limits on the exercise of governmental power or the specification of the

2 2 rights and liberties that individuals are to enjoy. They are primarily contained in the Bill of Rights, the first ten amendments to the Constitution. The study of constitutional law largely focuses on detailed, historical, and political treatments of the powers, limits, and processes of government and the rights and liberties enjoyed by the people that are contained in the Constitution. The study of these powers, liberties, and processes, however involves a good deal more than reading the words of the Constitution. In fact, those words are only the starting point for the study and understanding of constitutional law. Students of the constitution have long known that the words in the Constitution are often unclear or imprecise. Moreover, after some 200 years of developments, the words in the Constitution often do not answer the contemporary questions that arise from the operation of government. Constitutional law is the study of change and evolution, some gradual and some abrupt. Constitutional law is often the extension of the provisions of the document to new areas of social or political controversy. Constitutional law is the examination of how that change occurs, perhaps why it occurs, and certainly how the Supreme Court has contributed to that constitutional change. Constitutional change was anticipated by the Framers. They provided for a significant, slow, difficult process of amending the Constitution. (See Article V.) 1 However, in more than 200 years, only 27 amendments have successfully been adopted, and ten of those occurred at the very outset of the new government, when the Bill of Rights (Amendments I - X) were adopted in The only other spate of amendments were the Reconstruction Amendments (Amendments XIII, XIV, and XV, ratified in 1865, 1868, and 1870 respectively). It is rare that constitutional change occurs as the 1 Provisions of the Constitution is referred to by means of Article, Section, and Clause numbers as appropriate. In this particular case, Article V is the relevant provision. It is a single paragraph that pertains to the process of amending the Constitution. 2 There were originally twelve amendments proposed but only ten received sufficient ratification support from the states, until 1992, when the 27th Amendment was ratified. That amendment was one of the two original proposals that was NOT ratified by enough states. It remained pending all through the 19 th century and nearly all of the 20 th century until 31 more states ratified this proposal at various times between 1978 and 1992, that made the total number of ratifications 38 which complies with the Constitutional requirement. Nowadays, proposed amendments are sent to the states for ratification with a ratification deadline, usually sevens years. There is another pending amendment from the 1920s. That is the Child Labor Amendment.

3 3 result of the formal amending process, and most of these focus on fundamental aspects or questions about powers and rights. Other dramatic changes have occurred in Constitutional Law as the result of two informal dimensions of change. First, the Supreme Court has interpreted the provisions of the Constitution over the years, and those interpretations have fostered various changes or adaptations to current circumstances or needs. There are innumerable examples of the Court responding, not only to legal arguments, but also to political and practical pressure to make the words of the Constitution fit with political, economic, or social reality. While it might seem as if the Constitution should be above such momentary pressure, the Constitution is certainly a construct of political, social, and economic reality. It reflects political power and dominance and as those relationships change in America the Constitution has been adapted, often through Court interpretation, to those real-world circumstances. The study of Constitutional Law is largely an examination of Court interpretations or change in the meaning of the words written into the Constitution. A second way in which the Constitution has changed informally is through practice. The history of the presidency of George Washington is largely an illustration of his extreme awareness that every move and action or reaction would serve as precedent for his successors. While Washington may have been overly sensitive, his behavior and that of all Presidents, illustrates the precedential 3 value of their actions. Presidents are not the only illustrations of constitutional practice in this regard; there are a wide variety of such examples. While these practices are not always formalized in any way, there are other examples where practice has become constitutionalized, though Court decisions. 4 Although the Constitution can be viewed as sacred and above politics, clearly the Constitution channels and outlines how political power will be exercised, by whom, and 3 Precedent is usually an adjudicated case or a court decision that is an example of guide for reaching a decision in a similar or identical case. Courts often try to follow past cases in their decision sin order to be consistent. Here, the actions of presidents or other institutions serve as practical guides or "precedent" for what is constitutional. See Glenn A. Phelps, George Washington and American Constitutionalism (University Press of Kansas, 1993). 4 Several examples illustrate this point. First, until the adoption of the 22nd Amendment, the two-term limit on the Presidency was informal, imposed by Washington s choice to serve only two terms. U.S. v. Pink (1942) constitutionalized the President s practice (authority) of recognizing foreign governments. U.S v. Nixon (1974) constitutionalized the concept and practice of Executive Privilege, although the Court, in Nixon, imposed limits on its exercise by the President.

4 4 with what constraints. That requires the blend of formal powers and politics in many situations. The cases treated in this course illustrate various blends of politics and law. These are not mutually exclusive components of government. Rather political and legal issues overlap in many circumstances. A great deal of the substance of constitutional law can be explained by politics. There is a tendency to study constitutional law as if it operated either in a political or a legal vacuum. That is because it is difficult to draw distinctions between or to blend law and politics correctly in specific instances. It is also attractive not to mix the two perspectives because then the entire world of constitutional interpretation can be explained as merely politics. That makes the explanation of court decisions too simple, but it may also reflect a theme of realism. This view places the constitution at the same level as partisan politics and it provides a vantage point that is based on people s preferences and political goals rather than an objective or higher order (constitutional or legal ) dimension of government. The alternative extreme is to ignore politics and political pressure altogether and to treat constitutional law as only substantive legal doctrine and its development. That perspective has its advantages as well because it permits the reading and parsing of cases isolated from the real-world context in which cases arise and are decided. Such doctrinal analysis presumes that judges are more than mere mortals with political and ideological preferences. This view has judges deciding important, human issues without regard to human, personal, political, or realistic considerations or influences. Such a perspective provides a pure or a clearer picture of doctrine and constitutional meaning, but it certainly ignores the fact that judges are human and that they do not become completely impartial or objective when they become judges and put on the robe. 5 Undoubtedly, a balance between these two views is probably the best approach to the study of Constitutional Law. That blend is not necessarily precise and it may not be consistent from one case to another or from one area of law to the next. However, judges are human beings, often with a good deal of prior political and public experience and ideology, who are asked to decide legal and political (i.e., public policy) questions. That 5 Jerome Frank, The Marble Palace: The Supreme Court in American Life (Knopf, 1958). Franks talks about the cult of the robe that expects judges to drop all their preferences and beliefs when they become judges and put on a robe.

5 5 recognition is essential to analyzing constitutional decisions and opinions. This mixed perspective is an advantage when constitutional doctrine is inconsistent or unconvincing. Often, the wording of opinions is largely window dressing for the substantive outcome that individual judges desire and seek to justify in writing the opinion. At the same time, judges may try to decide cases in a consistent and rational manner, without regard to their personal preferences or beliefs. Neither extreme the political or the legal is the best or the only analytic perspective to adopt. Rather, some mixture or blend of the two extremes can serve best as the means of analysis in this area. Perhaps the best way to illustrate a large number of considerations about cases, legal procedure and structure, the constitution and politics is to look at an individual Supreme Court decision. Brown v. Board of Education (1954) is an important and interesting example of the blend of law and politics. This case also serves as the means to grasp the organization of judicial systems in this country, their procedures, their powers, and their political context. Pay particular attention as Brown is discussed to questions about how both political and constitutional factors both contribute to the outcome, the impact, and the significance of the Supreme Court s decision. II. THE CASE OF BROWN V. BOARD OF EDUCATION 6 The story of the Supreme Court s decision in the series of cases known as Brown v. Board of Education (1954) has been told a great many times. The outline sketched here shows something of the judicial process, particularly surrounding Supreme Court decisionmaking, legal procedures, and court organization. There were actually four companion cases from different parts of the country that were combined by the Supreme Court for decision because they raised the same, basic question about the constitutionality of racially segregated schools. In the lead case, Linda Brown s father sought National Association for the Advancement of Colored People (NAACP) 6 The following outline of the story of these cases is derived from several sources: Daniel M. Berman, It is So Ordered: The Supreme Court Rules on School Segregation, (Norton, 1996); and Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America s Struggle for Equality, (Knopf, 1976). Kluger s book is a very useful account of the story.

6 6 assistance in challenging the segregated elementary school she attended in Topeka Kansas. The case was filed before a three-judge District Court for Kansas in the Spring of At about the same time, blacks in other segregated localities, most with NAACP legal assistance, began the process of challenging the practice and policies of racial segregation in elementary and secondary schools. Legal assistance to these individuals was provided by the Legal Defense Fund of the NAACP, headed by Thurgood Marshall. Marshall and his co-workers provided legal advice, direction, and in some cases provided the lawyers themselves, when a local NAACP chapter asked for it. Their advice was largely based on the strategy of challenging the Separate but Equal doctrine first announced in Plessy v. Ferguson (1896) on the grounds that separate was not (and could never be) equal, no matter what kinds of resources and educational services the local school boards provided. 7 Prior to this strategy in the early 1950s, the NAACP had been successful in a series of cases challenging the racial segregation of graduate and professional educational programs. 8 Furthermore, in some of those earlier decisions, the Supreme Court had explicitly recognized that racial segregation was the flaw that denied Equal Protection of the law. That point was particularly emphasized in the Sweat v. Painter (1950) opinion, and it lead to the decision by the Legal Defense Fund to (1) approach racial segregation as inherently a denial of Equal Protection, and (2) target elementary and secondary education, rather than the education high end law school, graduate school and other professional education where it was much less likely that there was any way a state could provide separate and equal education programs for all school-aged children. The facts in each of the four cases differ, from the terrible physical facilities provided black elementary school children in Clarendon County, South Carolina, to the inconvenience of the trip to school that required Linda Brown in Topeka, Kansas, to walk across a railroad yard, wait for a school bus, and then often arrive at her school before it 7 For a classic study of the Legal Defense Fund s earlier litigation, challenging the doctrine of racial segregation in the restrictive covenant cases decided in Shelley v. Kraemer (1946) see, Clement Vose, Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases, (University of California Press, 1959).

7 7 was open so she would have to wait again out in the cold. The facts in each case also varied in terms of the state and local policies that school boards pursued. In Kansas, the state statute permitted local school boards in communities of more than 15,000 people to choose to segregate their schools. The other extreme, were the oppressive local practices of the superintendent in Prince Edward County, Virginia. But, despite this variation, the basic problem in all of these cases was that the schools were racially segregated, and those policies carried the weight of state or local law, as well as community custom and resource allocation. The cases were not litigated simultaneously, even though the NAACP did coordinate the litigation to the extent possible. The filings were done by Legal Defense Fund attorneys, in the appropriate courts. These litigators recruited and coordinated the expert witnesses who testified regarding the specific practices and the psychological and educational impact of segregation on the children. These attorneys were generally the lead litigators, at least in the South Carolina suit which was the first to go to trial, and the Topeka case, which was the second. Yet, the litigants were always local parents and their children. They were the ones who suffered the immediate and direct consequences of the segregation practices, and they were the ones with the injury necessary to have standing to sue. The Table 1 below provides a systematic outline of the similarities and differences among these cases as they arose in the lower courts. That is important to illustrate the systematic plan by the NAACP to get Plessy v. Ferguson overruled and to have racially segregated schools declared unconstitutional. This outline also illustrates the scattered and uncoordinated features of even this classic example of interest group litigation. 9 There was a good deal of debate among black activists about whether this strategy was the right one to pursue. There were criticisms of Marshall and the Legal Defense Fund for the way it conducted some of the trials, and there were gradual drops in the commitment of the local plaintiffs and the local support for the efforts to obtain the 8 Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); Sipuel v. Bd of Regents of University of Oklahoma, 332 U.S. 631 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); and McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950). 9 Stephen Wasby, Race Relations Litigation in the Age of Complexity (Univ. Press of Virginia, 1995).

8 8 legal objective. However, the criticism and the doubt did not deter Marshall and it did not deflect the Legal Defense Fund attorneys from their objective. Table 1. Lower Court Actions in the Brown v. Board of Education Litigation Case Court Date Decided Briggs v. Elliott Three judge, Federal June 23, District Court (E.D. South 1951 Carolina) Brown v. Bd of Educ. of Topeka Davis v. Co. Sch. Bd. of Prince Edward County Three judge, Federal District Court (District of Kansas) Three judge, Federal District Court (E.D. Virginia) August 3, 1951 March 7, 1952 Belton v. Gebhart Delaware Supreme Court August 28, 1952 Bolling v. Sharpe Federal District Court April 9, (District of Columbia) 1952 Decision Segregation Constitutional Segregation Constitutional Segregation Constitutional Segregation Unconstitutional Dismissed Vote X Briggs v. Elliott, 98 F.Supp. 529 (E.D. S.C. 1951); 103 F.Supp. 920 (E.D. S.C. 1952). Brown v. Bd of Educ. of Topeka, 98 F.Supp. 797 (D.C. Kan. 1951). Davis v. Co. Sch. Bd. of Prince Edward County, 103 F.Supp. 337 (E.D. Va. 1952). Gebhart v. Belton, 91 A.2d 137 (Del. 1952). Bolling v. Sharpe, unreported (D.C.D.C. 1952). There were several other features of these cases besides the planned litigation strategy of test cases. They were initiated, except for the Delaware case, in federal District Courts. Because they raised federal constitutional questions about state statutes or local ordinances, the District Courts heard these cases using special, three-judge courts composed of a judge from the Court of Appeals, and two judges from the District Court. There were not juries involved, even though evidence and witnesses were presented. That is because of the constitutional nature of the legal questions presented and the statutory provisions governing the three-judge district courts in effect at the time The statutory provision for 3-judge district courts to hear constitutional issues is now virtually a thing of the past. That was the result of the explosion in such constitutional litigation during the post-brown period in the 1960s and 1970s.

9 9 Another unique or striking feature of these cases was the nature of the evidence presented, particularly by the NAACP lawyers, at trial. The evidence is perhaps best characterized by Kenneth Clark s work. He conducted tests of school children in the relevant (school) populations using colored and white dolls in an effort to document the children s reaction to the racial differences of the dolls. The testimony was controversial, but it was successful in establishing a trial record that documented the psychological effects of racial segregation in the schools. While the defenders of segregation discounted this evidence or laughed at it and the district court judges were not persuaded by it in any of the three federal cases, the Legal Defense Fund was building a record for the Supreme Court to consider. It is interesting that only in the Virginia case, Davis v. County School Bd. of Prince Edward Co., did the defenders of segregation, the Attorney General of Virginia, present counter evidence of the impact of segregation. That permitted the three-judge court to base its holding (supporting segregation) on contrary evidence regarding the effect of racial segregation rather than on the principle of stare decisis that was based on Plessy v. Ferguson. In all these cases, the Legal Defense Fund challenged the basic premise on which Plessy was built: separate facilities were constitutional as long as they were equal. The evidence and the challenge presented by the NAACP were that Plessy and its premise were flawed and so Plessy had to be reversed. Clearly, the lower courts (the District Courts) involved in this litigation were reluctant to overrule Plessy v. Ferguson because many of the judges believed in that precedent; they believed in that way of life. In addition, that doctrine was Supreme Court precedent. None of the lower federal courts were anxious to reject the status quo in these cases without explicit direction from the Supreme Court to do that. There was a parallel case challenging racial segregation in the schools of the District of Columbia. This case, however, was handled by a law professor from Howard University, James Nabritt, and it was NOT sponsored by the Legal Defense Fund. The District of Columbia differed from the states because it was governed entirely by the United States Congress. The Fourteenth Amendment and its requirement of Equal Protection did not explicitly apply to the District of Columbia because the District was not a "state," as required by the 14 th Amendment. Nabritt argued that the Fifth

10 10 Amendment s Due Process Clause was violated by the segregation practices of the District's school system. However, that action was dismissed by the District Court for the District of Columbia on the grounds that the complaint by the parents failed to state a claim upon which relief could be granted. That means the District Court rejected the Fifth Amendment Due Process claim out-of-hand (at the outset), and did not even let the plaintiffs get to trial on the issue. In fact, the dismissal meant no three-judge district court was convened to hear the complaint in Bolling. As these cases were decided by the trial courts, the NAACP began the appeals process. In the case of three-judge district courts, appeal was a matter of right and the appellate route led directly to the United States Supreme Court. That is because of the significant and fundamental nature of the constitutional questions which were presented to these three-judge courts. In the Delaware case, the state, having lost at the trial court level, would have to appeal it or else the NAACP would not have the chance to argue that case before the Supreme Court. 11 That means the NAACP did not control the litigation in Gebhart, except at the initial trial stage. Furthermore, the state s (Delaware's) avenue of appeal was to the state supreme court. The Attorney General of Delaware did just that, but the state s highest court affirmed the Chancery Court, invalidating the segregation policy. 12 That left the next move in the hands of the Attorney General, again representing the losing side in the case, who sought a Writ of Certiorari with the United States Supreme Court. The appellate route for Bolling v. Sharpe in the District of Columbia was to the United States Court of Appeals for the District. However, time intervened and that court was circumvented by Nabritt, at the suggestion of the U.S. Supreme Court, who filed a petition for a Writ of Certiorari with the Supreme Court even though that was out of the ordinary. The sequence of events after the trial involved the Legal Defense Fund filing what was called a Jurisdictional Statement with the Supreme Court for the Briggs and the Brown cases. Davis had not been decided by the three-judge District Court at that time. The Supreme Court noted Probable Jurisdiction in Briggs and Brown on June 9, 1952, and scheduled oral argument for these two cases in early October of 1952, just after the 11 Belton v. Gebhart, 87 A.2d 862 (Dela. Ch.Ct. 1952). 12 Gebhart v. Belton, 91 A.2d 137 (Dela. 1952).

11 11 start of the 1952 Term of the Court (on the first Monday in October). The Jurisdictional Statement in Davis, the Virginia case, was filed on July 12, 1952, and the Court noted Probable Jurisdiction on October 8, 1952, just before the oral argument in Briggs and Brown. The three cases were then combined and oral argument was rescheduled for December 8. Furthermore, the Court explicitly took Judicial Notice 13 of Bolling v. Sharpe, and indicated that if it came to the Supreme Court on a Petition for a Writ of Certiorari, and if the Writ were granted, then it too would be argued on December 8, Informally at about this time, the Chief Justice of the United States, Fred Vinson, through the Clerk of the Supreme Court, asked Nabritt to file a Petition for a Writ of Certiorari in Bolling v. Sharpe. This is peculiar for several reasons. The informal communication between counsel in a case and anyone from the Court is generally not done. However, the Court clearly knew of the District of Columbia case, and Vinson wanted to bring these cases together, before the Court for consideration. It is also peculiar because the Court of Appeals had not reviewed the District Court s dismissal, as it had authority to do, so the Bolling case was NOT in the right form to present to the Supreme Court for a Writ of Certiorari. Nabritt got the hint very quickly and prepared the Petition over the summer. The Supreme Court granted Certiorari to Bolling on November 18, 1952, about three weeks before oral argument was scheduled in the cases, now four (district court) cases. The Bolling case was not consolidated with the state cases, but it was scheduled to be argued immediately after the four state disputes. The Delaware case was dragging along, finally decided by the state Supreme Court on April 28, The Delaware Attorney General lost again, and did petition for Certiorari on November 13, When the Clerk informally called the Delaware Attorney General to inform him that Certiorari was granted and he was to argue the case in less than three weeks, the state attorney demurred, 14 claiming that he could not prepare 13 Judicial Notice is a practice used by courts to acknowledge commonly or widely known facts, without the need to prove them through the submission of evidence. In this instance, Judicial Notice was used only to state publicly that the Supreme Court knew of the existence of Bolling, even though it had not yet been decided by the Court of Appeals or a petition filed with the Court. 14 A Demurrer is a legal pleading mechanism that implies that even if something were the case (here, even if you let Delaware argue Gebhart with the other cases on December 8) then the proposition cannot stand in these proceedings (Delaware cannot submit its brief in time and so the Court would be without the brief before the argument). Demurrer is no longer widely used in any legal proceedings. However, it is used

12 12 the brief in that length of time. The Clerk informed the state s attorney that his case was still scheduled to be argued December 8! He could submit his brief later, within three weeks of the grant of Certiorari, on November 24, That practice is certainly odd. The Court was trying to combine these cases in order to weigh all of the issues and arguments and resolve the constitutional questions in a coordinated way. There is one last, peculiar part to the pre-decision phase of these cases. No one in Kansas wanted to defend Topeka's segregation policy. The Kansas Attorney General took the position that it was up to the local school board to defend its policy because the state statute only permitted (did not require) cities to segregate. So, if Topeka segregated its schools, that was its choice, and the School Board should defend that policy. The Topeka School Board, newly elected after the trial in Brown, voted 3-2 NOT to defend the early Board s segregation policy. The new Board wanted to desegregate its schools. 15 (This did raise a subsequent question of whether the Brown case was moot, because the Topeka School Board was doing exactly what the NAACP had originally requested it to do desegregate.) The Supreme Court essentially ordered the Kansas Attorney General to participate in the case, Because of the national importance of the issue presented, and because of its importance to the State of Kansas, we request that the State present its views at oral argument. If the State does not desire to appear, we request the [United States] Attorney General to advise whether the State s default shall be construed as concession of invalidity. 16 With this sharp, public rebuke, the Kansas Attorney General responded, indicating that Kansas would be there for the oral argument in Brown. An assistant Attorney General was assigned the task of preparing the brief and arguing the case. The assistant (Paul Wilson) had never been to Washington, D.C., before his trip there to argue for racial here to describe the way the state Attorney General approached the Court s invitation to argue its case within a few weeks of the filing of the petition for Certiorari. 15 The attorney for the School Board wrote the clerk of the Supreme Court in early October, 1952, within a week of the originally scheduled oral argument and said: the Board... does not desire to file a brief in the above case and will not present oral argument at the time the case is set of argument. This was very troubling to the defenders of segregation in the other cases, Briggs and Davis. It is also largely unheard of in Supreme Court litigation that one side does not wish to participate U.S. 141 (1952).

13 13 segregation in Brown v. Bd. of Education in early December, but his brief and arguments were professionally done. 17 The written briefs on the merits were presented to the Court at various times. Over the summer of 1952 the NAACP submitted its briefs in the cases of Briggs and Brown. The brief for Kansas in the Brown case was hand carried to Washington just two days before oral argument. That submission was the last made before the presentation of the cases, except, perhaps for the state of Delaware. 18 However, it is important to note that there were a number of additional briefs filed in these cases. These were submitted by friends of the court, amicus curiae. The point of these briefs, by non-parties, is that they involve groups and interests concerned with the outcome of the case, they are affected by the case, and they have a perspective different from the views articulated by the parties in the case. Today, the Court has amicii in a large proportion of its cases, but it was relatively uncommon in the early 1950s to have these outside participants. There were 24 amicus briefs in the Brown case. Nineteen of those attacked the constitutionality of segregation. These obviously supported the position of the Legal Defense Fund. Perhaps the most important amicus brief involved the United States Government and the Solicitor General. The U.S. Government and state governments, as well, have a standing invitation from the Court to submit such briefs whenever their interests require it, and the United States Government is probably the most important amicus participant when it chooses to do that. In the Brown cases, the government submitted such a brief. A primary difficulty for the Government was to determine its position on the segregation issue. That was not a foregone conclusion for several reasons. First, the Department of Justice was split over segregation, a number of southerners in the Department either favored segregation or preferred no official governmental position. This position was counter to the Truman Administration's policy against racial segregation. Second, there was no Solicitor General in place during this period. Rather, there was an Acting Solicitor General for nearly 13 months, and that individual, though very competent, did not believe he alone could decide on the Government s position. Lastly, this period 17 For a rich account of the Brown case from the perspective of the state of Kansas see: Paul E. Wilson, A Time to Lose: Representing Kansas in Brown v. Board of Education (University Press of Kansas, 1995). 18 It is not clear when the Delaware brief was filed with the Supreme Court.

14 14 covered the end of the Truman Administration and the beginning of the Eisenhower Administration. That meant there were policy changes in the offing. During the election, (prior to November of 1952), the Truman Administration did not wish to take any position on these cases for fear the cases would become a campaign issue, or the position of the government would embarrass the Democratic presidential candidate, Adlai Stevenson. The Truman Administration submitted an amicus brief after the November election which argued segregation was inherently discriminatory, but also indicated the Court could invalidate specific state segregation plans individually if it found any of them to fail on the equality requirement, leaving the doctrine of segregation in place, although invalid in these particular cases. This moderate approach probably reflected what the Solicitor General s office believed to be a realistic way to win the cases. Arguing for the extreme position that Plessy must be overruled, and the separate-but-equal doctrine be entirely rejected, was much less likely to prevail. Thus, half a loaf was better than nothing, from the U.S. Government s view. The Solicitor General requested permission to participate in the oral argument scheduled for early December. That was declined by the Court, probably because the Chief Justice believed there was already quite enough pressure on the Court to invalidate Plessy v. Ferguson. Allowing oral argument by an amicus is rare, and there is no public record of the Court s rejection of the Government s request to argue the case. The oral argument of the Brown cases began about 1:30 on December 9, 1952, with Robert Carter for the NAACP arguing the petitioner s case in Brown v. Board of Education. The Court had allotted ten hours for oral argument in these five cases. That was usual practice of the day, and Brown, itself, absorbed only one fifth of the time. Argument is timed closely, despite the interruptions or questions raised by the justices. The Court broke for lunch partway through Carter s argument and then resumed half an hour later. After the Assistant Attorney General for Kansas finished with his half hour, the Court went immediately to the second case, Briggs v. Elliott from South Carolina. That was argued by Thurgood Marshall for the NAACP, and John W. Davis for

15 15 Clarendon County, South Carolina. 19 The argument of these two attorneys in the South Carolina case is considered the high point in the ten hours of discussion. The oral argument ended in these cases at about ten minutes to four on the afternoon of December 11, At the close of that argument, the public view of the Court ends. The remainder of the Court s work on cases is done behind closed doors, in Conference or in the justice s individual chambers. In these desegregation cases, the Court s Conference on Saturday 13, 1952, undoubtedly involved discussion of the cases. It did not produce a vote or a recorded decision, however. Like many cases before the Court, particularly controversial ones, there was no decision announced in the case during the remainder of the Term. In June, 1953, just before the Court adjourned for the Summer, Chief Justice Vinson announced that a variety of cases, including the five desegregation cases, were carried over to the next term, the fall of The Court did two things that were unusual in the desegregation cases when it announced the orders carrying them over. First, the Court specified a series of questions of the parties. The parties were to brief their responses to these questions for oral argument the next Fall. This is not unheard of, but it is very rare that the Court does this. The questions are quite significant ones that suggest some of the questions or issues that were causing the Court (or some of the justices) concern. The questions were: 1. What evidence is there that the Congress which submitted and the State legislatures and conventions which ratified the Fourteenth Amendment contemplated or did not contemplate, understood or did not understand, that it would abolish segregation in public schools? 19 Thurgood Marshall, at the time, was an energetic, committed, and young attorney trained at Howard University. Only later did his public visibility rise, largely as a result of the Brown litigation, to the level of prominence afforded by serving as a judge on the U.S. Court of Appeals for the 2 nd Circuit, as U.S. Solicitor General for Lyndon Johnson, and then as an Associate Justice of the United States Supreme Court. John W. Davis, on the other hand, was the most famous and prominent attorney to participate in the entire Brown litigation. Davis was the 1924 Democratic Presidential candidate. He had served as U.S. Solicitor General himself during the Wilson Administration. He had also been U.S. Ambassador to England. He had argued numerable cases before the Supreme Court, and only six months before Brown, he had prevailed in his arguments in Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952) a landmark case involving the fundamental issue of inherent or implied executive power to seize the steel mills. 20 One of the unique aspects of a carried-over case is that oral argument is rescheduled. It is as if the Court wishes to have its memory refreshed or the justices need to be reminded of what the case was about after the summer adjournment. The Brown cases involved a clear indication of why these were carried-over.

16 16 2. If neither the Congress in submitting nor the States in ratifying the Fourteenth Amendment understood that compliance with it would require the immediate abolition of segregation in public schools, was it nevertheless the understanding of the framers of the Amendment a) that future Congresses might, in the exercise of their power under section 5 of the Amendment, abolish such segregation, or b) that it would be within the judicial power, in light of future conditions, to construe the Amendment as abolishing such segregation of its own force? 3. On the assumption that the answers to questions 2(a) and (b) do not dispose of the issue, is it within the judicial power, in construing the Amendment, to abolish segregation in public schools? 4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system note based on color distinctions? 5. On the assumption on which questions 4(a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(b) a) should this Court formulate detailed decrees in these cases; b) if so what specific issues should the decrees reach; c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees; d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so, what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees? 21 The second striking thing the Court did in carrying over the cases, was to invite the U.S. Solicitor General to participate in the oral argument U.S (1953). The detail and the direction of these questions suggested to some observers that the Court had decided the cases in favor of the claims of the NAACP, but that the Court was concerned about how to achieve desegregation.

17 17 The Attorney General of the United States is invited to take part in the oral argument and to file an additional brief if he so desires. 22 This is hardly an invitation so much as a command. It is also puzzling given the previous denial by the Court of the Solicitor General s request to participate in the oral argument of the cases. However, it may be more understandable when the specified questions are considered. The Court clearly wanted the Solicitor General s views on these issues because the questions obviously went to the substance of the cases from the Court s vantage point and focused on the power of the federal government under the 14 th Amendment to deal with racial segregation. Additionally, the Government s view on remedies (the decrees addressed in Questions 4 and 5) was clearly important to the Court and dependent upon the Eisenhower Administration's views on these questions. The disclosure of the government s views could occur in the Government s Brief. However, the oral argument would permit the justices to benefit from asking the Solicitor General questions about their written answers to the questions. Certainly this result of the Court's initial deliberation on the case the continuation of the case, the specific questions to be briefed and the expanded oral argument after the haste of developing and preparing for the cases was disappointing and anticlimactic to everyone concerned. The attorneys now had to return to the drawing board so to speak. They had to undertake extensive historical and legal research. They had to draft new briefs, that addressed the questions on which the Court wanted oral argument in October. These efforts would take the parties a good deal of time, effort, and money. And the attorneys did not know what the outcome of these research efforts would be, in terms of each side s positions in the cases. The questions really reflected two problems with the cases after the initial oral argument and court deliberations. First, the Court was troubled about the intention of the Fourteenth Amendment regarding racial segregation in schools. Coupled with that puzzle, the Court indicated that it wanted the litigants views on whether the Court had U.S. 973 (1953). In fact, this invitation produced another delay in the argument. Eisenhower s new Attorney General at this time, Herbert Brownell, and his associates could not prepare the brief by the deadline because they could not agree on the government s position in the case. The end result was a compromise position in which the government did not urge blanket invalidation of public school

18 18 the judicial power to invalidate racial segregation in the schools, even if the history on the Amendment was unclear, indeterminate, or confusing. The second of the Court s quandaries was how to fashion and implement a decision invalidating school segregation, if that was the Court s determination. The Court was clearly thinking about the real-world problems of gaining compliance with a decision in these cases. Neither of these sets of problems were easy to resolve, and the second of them produced decades of confusion and conflict. In the end, when the parties returned for oral argument, now set for December 7, 1953, the answer to neither of these fundamental questions was clear or direct. The help the litigants gave the Court was less than conclusive for either side on either issue the question of education under the 14 th Amendment or development and implementation of a remedy. While that is often the case with difficult and fundamental questions, it only postponed the Court s need to address the real issues and resolve those in some way satisfactory to the parties. The Court does (and certainly can) ask for specific help of the parties to cases about various kinds of problems or concerns. However, the end result is that the Court must still decide the legal issues and fashion a resolution that is consistent with the answer that the Supreme Court develops to the issues. In addition, when the reargument was scheduled, the center chair on the Court was occupied for a new Chief Justice. Fred Vinson died a month before the argument was to take place, and Eisenhower had appointed Earl Warren, Governor of California, to a recess appointment. That meant, when the Senate reconvened, it would have to confirm the nomination, but in the meantime there was a new Chief Justice of the United States. At the reargument on December 7, Warren had been interim Chief Justice for one week. The ten hours of argument extended over three days, again. The justices heard and questioned attorneys on both of the fundamental issues that were addressed in the briefs. The gist of the history of the Fourteenth Amendment was that there was no clear indication of the intention of its framers regarding school segregation. The NAACP certainly argued that the intention was to eliminate segregation and that would include schools as well as other governmental and public institutions. The opponents could find segregation. Furthermore, the government urged the Court to implement any invalidation as suggested by Question 5(d), with careful attention to local idiosyncrasies and circumstances.

19 19 no legislative history or anything else to support the NAACP's conclusion. In the end, the Court gave up trying to determine the intent of the Fourteenth Amendment. The arguments over the issues of remedies ranged from those parties advocating immediate and complete desegregation to those arguing for the most gradual and idiosyncratic decrees fashioned by individual schools and local officials, under wide latitude to the schools granted by the district courts. The most troubled argument in this regard was probably given by the Virginia Attorney General who was visibly shaken at the very thought of such matters. T. Justin Moore finally indicated that officials must be given... the broadest possible discretion to act along reasonable lines.... He further argued that the courts should not direct a course of action for the schools to take, but rather allow school officials to develop and present plans for compliance that would accommodate their local needs. The U.S. government s position at oral argument was unique. The government s written brief had been such a compromise that Justice Douglas asked for an explicit indication of the new administration s position on racial segregation at oral argument. Orally, the assistant attorney general indicated that in the government s view segregated schools violated the Fourteenth Amendment. With that definite position articulated, the government then disassembled over how to implement such a ruling. There, local conditions were crucial to compliance. The government believed that federal district judges should be allowed great flexibility in the kinds of decrees they developed and the time tables that were to be followed even if the decision reached the conclusion that desegregation must be implemented nation-wide. The Kansas case presented an interesting problem because the Topeka School Board still did not want to defend desegregation. In fact, by the time of this second oral argument, two of Topeka s schools had been desegregated. That clearly raises the question of whether the Topeka case was moot and no longer contained a legal controversy between the parties. In the end, the Court continued to consider Brown v. Board of Education and that case was decided along with the other segregation cases, but there is a question about whether that was necessary. On May 17, 1954, some five months after the oral argument, the Supreme Court announced its decision: We conclude that in the field of public education the doctrine of

20 20 separate but equal has not place. Separate educational facilities are inherently unequal. The deliberations of the Court, after the close of oral argument, took a good deal of the Court s time in the early months of While the holding in the cases is certainly no secret, the process by which the decision and the unanimous vote were reached is a very complicated and interesting story. Table 2, below, indicates something of the predisposition of the justices during the various phases of the Brown litigation. The fact that the justices were not all in agreement, at any time except at the end is important to understand. It says much about the Court as a deciding body, the members of the Court as negotiators and politicians, and the consequences for the parties. Table 2. U.S. Supreme Court Votes at Various Stages, on the Issues in the Brown Litigation Justice Cert. Vote a Tentative Vote on Merits b Initial Vote on Merits c Final Vote on Merits d Vinson O Warren + + Black + + O + Reed + + Frankfurter + + Douglas R. Jackson + Burton Clark Minton Totals Blank cells indicate the individual did not participate at that stage. a This vote was recorded and made public in Justice Burton s papers. See, S. Sidney Ulmer, Earl Warren and the Brown Decision, 33 Journal of Politics 697 (1971). See also, Kluger, Simple Justice, at At this point of this discussion, Kluger indicates that Justice Clark s recollection some years later was that the vote to grant cert. was probably unanimous. There is no other evidence to indicate a unanimous vote for certiorari. + = for the grant of certiorari; = against the grant; O = not voting or absent;