Scholars Mark 50 Years Since Decision

The Supreme Court that ruled on the historic 1954 Brown v. Board of Education case was “one of the most intensely splintered courts in history,” according to University of Virginia School of Law Professor Michael J. Klarman.

Yesterday evening in a speech titled “Why Brown was a Hard Case,” Klarman described the deep ideological divisions among the justices, who eventually ruled unanimously to end federally sanctioned racial segregation in public schools.

Klarman delivered his talk in Harvard Law School’s (HLS) Austin Hall East to a gathering of about 60 HLS students and professors. The event marked the beginning of the Law School’s week-long commemoration of the 50th anniversary of the Brown decision.

Climenko Professor of Law Charles J. Ogletree, who organized the celebration with HLS Dean Elena Kagan, called the Brown ruling the “most important decision by the U.S. Supreme Court on race relations.” He said it was important for Harvard to mark this anniversary in light of the contributions of HLS alums to the case.

As the vice dean of Howard Law School, Charles H. Houston—the first African American to serve on the Harvard Law Review—trained future Supreme Court Justice Thurgood Marshall and Attorney Oliver Hill, according to Ogletree. Both men played pivotal roles in developing the case against "separate but equal" school facilities. Specifically, Marshall served as chief counsel for the National Association for the Advancement of Colored People (NAACP), which took the Brown case to the Supreme Court.

Ogletree also said HLS alum William Coleman, who graduated at the top of his class, assisted the petitioner in preparing its case.

At yesterday’s talk, guest speaker Klarman highlighted the “deep, personal animosities” among the justices.

“The only thing that the justices agreed about was that they didn’t have a lot of respect for [Chief Justice Fred M.] Vinson,” Klarman said, referring to the Court’s first hearing of the case in December 1952.

Despite their personal differences, many of the disagreements—the Court was criticized for the myriad of separate opinions its justices wrote on the same case—arose as a result of ideological differences, Klarman said.

When Presidents Franklin D. Rooselvelt, Class of 1904, and Harry S Truman put the justices on the Court, they were “largely indifferent to their racial views,” Klarman said.

For example, Justice Hugo L. Black was a Ku Klux Klan member, although not a very active one, in the 1920s, Klarman said. At that time, the Klan had over 4 million members, and Klarman, speaking as if he were in Black’s position, explained the justice’s rationale for being able to hear the case: “I argue cases in front of Klan members; the only chance I have of winning the case is to be a Klan member. My only chance of getting into politics was to join the Klan.”

Throughout his speech, Klarman quoted from Justice William O. Douglas’ conference notes from the case, which included his observations about the justices and how they appeared to be leaning.

Klarman said several of the justices wanted Congress to “solve the problem” presented in the Brown case. However, “that was just wishful thinking,” he said. “In the 1950s, there was zero chance that Congress would pass a law barring school segregation.”

According to Klarman, the justices struggled with the Brown decision because of the conflict between the “perceived long line of precedent” and their personal values.

Between 1865 and 1935, there were 44 challenges to public school segregation that reached the lower federal courts or high state courts, Klarman said. All were unanimously rejected. In 1896, the nation's highest court decided in Plessy v. Ferguson that “separate but equal facilities,” including public schools, were constitutional.

About one year after the Court first heard Brown, the case had to be reargued because the Court could not make a unanimous decision. But in September 1953, two months before the reargument was to begin, Chief Justice Vinson died of a heart attack, and Chief Justice Earl Warren was appointed.

Klarman said one of the justices, Felix Frankfurter, pointed to Vinson’s death as evidence of God’s existence, eliciting laughter from the Law School audience.

But the outcome of the case was in doubt until the end. Klarman said the NAACP prepared two press releases because it was not clear who would win.

Finally on May 17, 1954, the Court ruled that “separate educational facilities are inherently unequal.” Reading from a memo written by Justice Douglas the day the Brown decision was handed down, Klarman said that had the justices ruled on the case when it was first argued before the Court in 1952, "the vote would have been five to four in favor of the constitutionality of segregation in the public schools."

Although widely regarded as a revolutionary decision, Klarman said “it is wrong to see Brown as the origin of the Civil Rights Movement.”

“The justices were capitalizing on a trend that was already underway,” he said. “They saw themselves as piggybacking on those changes.”

During a question and answer session after the talk, Ogletree pressed Klarman on whether Brown was a sound constitutional decision. “It depends on your theory of constitutional interpretation,” Klarman answered.

“If you are strictly committed to the text of the Constitution and the line of precedent, then you can’t defend Brown,” Klarman said. “But if you take into account the morality, then you support Brown.”

When one audience member asked about the merits of Marshall’s argument, Klarman said, “Marshall was a one-man law firm...I am a big fan of Thurgood Marshall, but I don’t think the argument had a large impact on the outcome.”

In the end, Klarman said, “none of the justices relished the idea of being on the side of white supremacy.”

HLS continues its Brown celebration today with a panel discussion in Ames Courtroom titled, “Reflections on the Jurisprudence of Justice Thurgood Marshall: A View from His Law Clerks.” The panel will feature nine HLS faculty members who clerked for Marshall. University President Lawrence H. Summers will deliver opening remarks.

Tomorrow, Ogletree and Bloomberg Professor of Law Martha L. Minow will discuss their new books about the decision.

More information about the upcoming events is available on the HLS website at www.law.harvard.edu.

—Staff writer Andrew C. Esensten can be reached at esenst@fas.harvard.edu.