collapsed before the Supreme Court. Now the court was forced to face the most explosive issue of all: segregation in public elementary schools.

Once that jurisdictional obstacle was hurdled, however, the court added other school segregation cases and combined them for argument until they had a total of five cases: one from the border state of Kansas, one each from rural Virginia and South Carolina, one from North-oriented Delaware, and one from federally administered District of Columbia. Together these cases gave the Supreme Court a detailed picture of racial segregation by law in American public schools. (At the time, state constitutional provisions and laws or local ordinances required the schools of seventeen southern and border states and the District of Columbia to be segregated; in four other states—Arizona, Kansas, New Mexico, and Wyoming—segregated schools were legally permitted on an optional basis.)

The court that was to hear these five segregation cases argued in December, 1952, was judicially unpredictable. At one end were two liberal activists: justices Hugo L. Black, former United States senator from Alabama, and William O. Douglas, former Yale law professor and chairman of the Securities and Exchange Commission. Appointed to the Supreme Court by President Franklin D. Roosevelt, both were quick to use the power of the court in the name of “social justice.”

The rest of the court was enigmatic on the issue of racial segregation in public schools. Indianian Sherman Minton had been an administrative aide to President Franklin D. Roosevelt and a close friend of Harry S Truman, with whom he entered the Senate in 1935. He was appointed to the Supreme Court by President Truman in 1949. Nothing in his writings indicated his position in these segregation cases.

The New York Times described Justice Harold H. Burton, on his appointment to the Supreme Court in

1945, as a “liberal of marked independence.” As a justice, however, he seemed to lean toward a conservative stance; on civil rights he had voted both ways.

Justice Jackson, Solicitor General and Attorney General under Roosevelt, vigorous prosecutor of war criminals at Nuremberg, assumed the mantle of judicial restraint when he was appointed to the Supreme Court in 1941; he was hesitant to overrule state and federal enactments, believing, like his frequent judicial ally Justice Frankfurter, that undesirability could not be equated with unconstitutionality.

At the Senate hearings on his appointment to the Supreme Court in 1949, Justice Tom C. Clark, a Texas protégé of Senator Tom Connally and Representative Sam Rayburn, had been denounced by Negro groups for failing to protect Negro civil rights when he was Attorney General. Yet it was under Clark’s stewardship that the Justice Department began to file amicus curiae (friend of the court) briefs defining the administration’s legal positions; these consistently argued against racial discrimination and became a significant part of later civil-rights litigation. Clark had also, as president of the Federal Bar Association, demanded admission of Negro lawyers, and in 1950 had written a concurring opinion when the Supreme Court quashed a criminal indictment of a Negro on the grounds that Negroes had been discriminated against in the selection of grand jury panels. Clark’s record looked “liberal” in 1952; however, he had not yet had to face the question whether racial segregation in public schools denied “equal protection of the laws.”

Justice Stanley F. Reed came from the border state of Kentucky and had been Solicitor General under Roosevelt, arguing for the validity of NRA, TVA, the Wagner Act, and other of the President’s measures. Appointed to the Supreme Court in 1938, he had become somewhat conservative but had also written a vigorous defense of Negro voting rights in 1944. How Reed came to write that 1944 opinion reveals not a little of the political consideration that goes into a major decision of the Supreme Court.

At conference on January 15, 1944, the Supreme Court decided to declare the Texas exclusion of Negroes from primary elections unconstitutional. Felix Frankfurter was assigned to write the opinion. The case was called Smith v. Allwright.

”… That afternoon,” a Frankfurter memorandum reads, “Bob Jackson came to see me. … He thought it was a very great mistake to have me write the Allwright opinion. For a good part of the country the subject—Negro disenfranchisement —was in the domain of the irrational and we have to take account of such facts. At best it will be very unpalatable to the South and should not be exacerbated by having the opinion written by a member of the Court who has, from the point of view of Southern prejudice, three disqualifications: ‘You are a New Englander, you are a Jew and you are not a Democrat—at least not recognized as such.’ ”

Frankfurter replied that he saw Jackson’s point ; Jackson was free, Frankfurter said, to suggest to the Chief Justice—Harlan Fiske Stone at that time—that the opinion be reassigned. When Stone later asked Frankfurter to suggest a name, Frankfurter declared that “the job required, of course, delicacy of treatment and absence of a raucous voice and that I thought of the Southerners Reed was the better of the two for the job. He agreed to that. …”

Thus, on April 3, 1944, in the case of Smith v. Allwright, the Texas white primary was invalidated. Justice Reed—Southerner, Protestant, and Democrat —spoke for the majority : “The United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any State because of race.”

In 1952, in addition to these seven justices, there were two crucial men on the court that was to hear the school segregation cases: Chief Justice Fred M. Vinson and Felix Frankfurter. But Vinson died before the school segregation cases were decided, and so what he would have done can only be a matter of speculation.

He was succeeded by Earl Warren, three-term governor of California and Republican candidate for Vice President in 1948. A hearty, amiable man on the surface, he was expected to be, as one of his biographers put it, “the colorless manager of a team of all-stars.” No one, including President Dwight D. Eisenhower, who appointed him, expected a courageous, reforming chief justice. Justice Frankfurter wrote his impressions of Warren to a young English friend at the time of the appointment : … He has not had an eminent legal career, but he might well have had had he not been deflected from the practice of law into public life. He brings to his work that largeness of experience and breadth of outlook which may well make him a very good Chief Justice provided he has some other qualities which, from what I have seen, I believe he has. First and foremost, complete absorption in the work of the Court is demanded. That is not as easy to attain as you might think, because this is a very foolish and distracting town. Secondly, he must have great industry because … for about nine months of the year it is a steady grind. Further, he must have the capacity to learn, he must be alert to the range and complexities of the problems that come before this Court. … One more requisite. … Intent, open-minded, patient listening is a surprisingly rare faculty even of judges. The new Chief Justice has it, I believe, to a rare degree.

Warren seemed, like most of the court, judicially unpredictable. He had never been able to live down his major role as California attorney general in sending Japanese and Japanese-Americans in the state to detention camps at the outbreak of World War II. But beyond

this questionable moment in his career, there was a bold record as crusading district attorney in Alameda County and a progressive governorship during which Warren battled annually against a hostile legislature for social legislation and reforms.

The other crucial man on the Supreme Court in 1952 was Felix Frankfurter. Appointed to the Supreme Court in 1939 by Roosevelt, Justice Frankfurter had eagerly joined in the decisions invalidating legal segregation prior to the Brown case. He had, however, consistently laid a light restraining hand on his brethren.

He was a sworn enemy of racial discrimination; he had served on the legal committee of the NAACP from 1929 until he was appointed to the Supreme Court (when he scrupulously severed connections with all organizations). He was, however, aware of the potential for divisiveness in racial discrimination cases before the court. He wrote in a note to Justice Wiley B. Rutledge regarding a 1948 case of racial discrimination on an excursion boat :”… Considerable practical experience with problems of race relations led me to the conclusion that the ugly practices of racial discrimination should be dealt with by eloquence of action but with austerity of speech. …” Likewise, when Chief Justice Vinson’s draft opinion in a 1950 case involving segregation in graduate schools was circulated among the justices for suggestions—as is customary on the court—Frankfurter urged restraint in the rhetoric. The opinion, he said, ought to accomplish “the desired result without needlessly stirring the kind of feelings that are felt even by truly liberal and high-minded southerners. … One does not have to say everything that is so. … The shorter the opinion, the more there is an appearance of unexcitement and inevitability about it, the better. …”

The school desegregation decisions of 1952-1955 were broken into two parts. The first was whether racial segregation in public schools was constitutional or unconstitutional; inherent in this question was whether it was the business of the court or the business of Congress to deal with the problem. The court struggled nearly a year before making up its mind on that question.

The second part of the decisions was the question of remedy: How and when was desegregation to be achieved? This question was not answered for a full year after the court declared racial segregation in public schools unconstitutional, in May of 1954. The delay—which gave the South a breathing spell—was used to forge a compromise between immediate wholesale desegregation and gradual adjustment to the court’s decision; between Negro rights and southern hostility. That year was full of judicial pondering and introspection that scotch any notion that the court arbitrarily exerted its power.

The segregation cases had been argued the first time in December, 1952. Lawyers—mostly from the NAACP—argued for the Negro plaintiffs that state school segregation laws denied to Negroes the equal protection guaranteed under the Fourteenth Amendment of the Constitution. Attorneys for the southern school districts

countered that school segregation involved no constitutional rights; it was, they said, strictly a state legislative matter. The court listened, waited six months, and then in June, 1953, scheduled the cases for reargument the following term, with counsel for both sides instructed this time to address themselves to five specific questions.

The first three questions concerned the original intent of the framers of the Fourteenth Amendment regarding racial segregation in public schools.

That amendment, passed by a Republican Congress in 1866 in the heat of post-Civil War passion, says nothing about racial segregation in public schools; but neither does it say anything about housing or transportation or juries, areas in which the Supreme Court had, by 1953, already used it to invalidate discriminatory practices. Like the rest of the Constitution, the Fourteenth Amendment is a vessel into which judges had, over the years, poured many meanings. Its crucial first section merely said: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” Section 5 gives Congress the power to enforce the amendment’s provisions “by appropriate legislation.”

Now in 1953 the Supreme Court wanted to know: Did the authors of the Fourteenth Amendment in fact intend desegregation of public schools either at the time of their writing or in the future? Exhaustive research by the court and the contending parties never revealed a clear answer to that.

Questions four and five asked how desegregation might be achieved, prompting observers to speculate that the court—still headed by Chief Justice Vinson—had already decided to declare racial segregation in public schools unconstitutional.

For the scheduled rehearing the court extended an invitation to the Attorney General of the United States to participate in oral arguments. A Frankfurter memorandum of June 8, 1953, explained that the new administration under Eisenhower “may have the responsibility of carrying out a decision full of perplexities; it should therefore be asked to face that responsibility as part of our process of adjudication. …” When the rearguments were heard in December, 1953, their significant portions turned out to be those dealing with the question of a remedy for segregation if deemed warranted.

NAACP lawyers, led by Thurgood Marshall, later to be appointed to the Supreme Court himself, urged immediate admission of Negro children to the schools of their choice, but reluctantly acknowledged that the Supreme Court had the power to effect instead a gradual adjustment. The southern states, whose chief attorney was John W. Davis, 1924 Democratic Presidential candidate, argued that the Supreme Court had the power to order a gradual process, but no effective way of mandating the details. “Your Honors do not sit, and cannot sit, as a glorified Board of Education for the State of South Carolina or any other State,” John Davis declared.

At this stage of the proceedings the government’s position was anomalous. The brief filed by the Eisenhower administration did not urge the court

to hold public school segregation unconstitutional, although its overall tenor supported such a holding. Some of the lawyers who worked on it have said that an original version did include a direct call for the court to declare public school segregation unconstitutional but that it was diluted by either Attorney General Herbert Brownell or President Eisenhower. Brownell has denied this, saying that the brief never contained such a call. But he agreed —and advised Eisenhower—that if J. Lee Rankin, the Assistant Attorney General who was to argue for the government in court, was asked during oral argument for the administration’s position, he would answer that the court should hold public school segregation unconstitutional—which was what Rankin actually did.

On the question of how desegregation could be accomplished, the government suggested remanding the cases to the lower courts, where, in the light of local conditions, decrees would be formulated and a gradual adjustment be made.

Shortly after this December reargument and four months before the Supreme Court would officially declare public school segregation unconstitutional, Justice Frankfurter addressed himself, in a memorandum for his associates, to the questions of how and when. He explained, in a covering note, that he was thinking out loud and that “sometimes one’s thinking, whether good or bad, may stimulate good thoughts in others.” He added parenthetically that “the typewriting was done under conditions of strictest security.”

Whether the court was already thinking in terms of two decisions rather than one and had reached unanimity is not known. The memorandum’s cautious restraint seems to indicate, however, that Frankfurter, in an attempt to achieve unanimity, was articulating the concerns of whatever recalcitrant justices remained, and perhaps trying to point out that implementation, while it had major difficulties, was not impossible. Because it introduces the concept of “with all deliberate speed,” it is one of the most important pieces of writing on the segregation cases prior to their being decided.

Although, Frankfurter told his brethren, the court had before it only five individual cases, “we are asked in effect to transform state-wide school systems in nearly a score of states,” and it was not going to be easy. First the court must define, Frankfurter wrote, exactly what the required result was. For the first time in the written discussions, the word integration was used; it has since become the heart of much of the controversy surrounding school racial problems. “Integration,” Frankfurter said, “that is, ‘equal protection,’ can readily be achieved by lowering the standards of those who at the start are, in the phrase of George Orwell, ‘more equal’.… It would indeed make a mockery of the Constitutional adjudication designed to vindicate a claim to equal treatment, to achieve ‘integrated’ but lower educational standards.”

As to the time factor, the court does its duty, he explained, “if it gets effectively under way the righting of a wrong. When the wrong is a deeply rooted state

policy the court does its duty if it decrees measures that reverse the direction of the unconstitutional policy so as to uproot it ‘with all deliberate speed.’ ” This was a phrase Frankfurter had used previously in at least three decisions. Like integration, it became a controversial issue in the desegregation process.

Tentatively, Frankfurter preferred some gradual process of desegregation. “The Court does not know,” he wrote, “that a simple scrambling of the two school systems may not work. It surely cannot assume that scrambling is all there is to it. … One is surely entitled to suspect that spreading the adjustment over time will more effectively accomplish the desired end. …”

However, he warned, before the court could fashion a decree, it faced an enormous and complex fact-finding task, made more difficult by the various interpretations that could be applied to facts “different in kind than courts usually consider” and “embedded in deep feeling.”

“Physical, educational, budgetary, and time factors” must be considered; there would be problems for both teachers and students, and “problems caused by shifts in population which these readjustments may well induce.” All these must be ascertained in a complex framework where “the spread of differences in the ratios of white to colored population among the various counties in different States is very considerable.”

Awareness of these difficulties accounts for the fact that a remedy for segregated schools did not appear in the May 17, 1954, decision. The justices simply declared racially segregated schools unconstitutional, and the last paragraph of the unanimous opinion read: Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. We have now announced that such segregation is a denial of the equal protection of the laws. I n order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on questions 4 and 5 [the questions of how] previously propounded by the Court for the reargument this Term.

The Attorney General of the United States as well as the attorneys general of the states requiring or permitting segregation in public education were invited to participate as amici curiae. Undoubtedly the court hoped that by inviting participation of the states—most of them southern—that permitted or required segregation, the South itself, at least on an official level, would accept the inevitability of change and join in devising an acceptable remedy.

The justices knew they had touched sensitive nerves, but they were probably not prepared for the widespread resistance their decision drew, largely in the South. Emotion outran reason; invective submerged valid legal debate. Deep South prosegregationist states such as Alabama, Georgia, and Mississippi did not accept the court’s invitation to participate in reargument lest they endow

the May 17, 1954, decision with recognition. Vacationing in Massachusetts, Frankfurter mused on the problem and, in a letter to Warren, recommended that the court gather data on what “administrative, financial, commonsensical and other considerations legitimately enter” the normal school-districting process so as to have some frame of reference in dealing with southern redistricting. “The Southern States are fever patients. Let us find out, if we can, what healthy bodies do about such things in order to guard against attributing to the fever conduct and consequences that are not fairly attributable to fever. …”

Following Frankfurter’s suggestion, Chief Justice Warren circulated among the justices in November, 1954, a seventy-nine-page Segregation Research Report containing background information to be referred to by the justices in thinking about implementing their decision of the past May. It included a survey of normal school-districting practices, a summary of southern reaction to the May 17 decision, analyses of previously desegregated schools, proposed plans to abolish public schools, discussion of court jurisdiction over school districting, and maps of school districts showing distribution of white and Negro students. The report pointed up the complexity of the how problem facing the Supreme Court: How could nine justices, sitting in their marble palace in Washington, with their limited knowledge of local problems, devise a formula that could be applied to such a diversified collection of school districts? The when was equally a problem: ” ‘Forthwith’ would either be given a meaning short of immediacy or introduce a range of leeway to render it imprecise,” Frankfurter said in a memorandum of February 10, 1955. “And it would most certainly provoke resentment. Yet any limitation allowing a specific number of years in which to achieve compliance could well be treated as a grace period during which nothing need be done.”

The segregation cases were reargued from April 11 to 14, 1955. On the last of those days, Frankfurter wrote to his colleagues: “Hamilton Basso is, as I dare say you know, a very perceptive Southern writer, and carries weight, I believe, both North and South. A letter of his in last Sunday’s New York Times has for me the persuasiveness not of novelty but of emphasis.”

Basso’s letter, which Frankfurter reproduced, was an urgent cri de coeur for understanding of the South’s present defiant temper. Segregation, it said, like slavery the century before, “was the foremost preoccupation of the Southern mind” in the press and in conversation. Out of a confusion of opinion, ranging from “logical argument to irrational bitterness,” Basso wrote, “that which most clearly emerges is a feeling of deep resentment over what is looked upon as outside pressure. … It [the South] has gone far toward convincing itself that it is going to be ‘pressured’ in a quick reorganization of its whole society … and that the rest of the country is almost callously indifferent to the difficulties implicit in such a course.”

Two days later,

on April 16, 1955, the justices met in conference, still searching—against the background of angry resistance —for answers to the questions they had asked in court. Chief Justice Warren opened the discussion with his admission that he himself had not reached a fixed opinion; perhaps the brethren could talk it over, as they had the original desegregation decision.

There were, Warren began, some things the court should not do. The Supreme Court ought not to tell the lower courts what to do; it should not fix a definite date for completion of desegregation nor even suggest to a lower court that that court should set a date, nor should the Supreme Court dictate any procedural requirement. Clearly, Their Honors were not going to sit as a “super school board.”

What appealed to Warren at the time, rather than a formal decree, was an opinion citing factors for the lower courts to consider, with some Supreme Court guidance; it would, he explained, be rather cruel to shift back and let them flounder. There were two ground rules to be observed: (1) these were class actions—that is, as the May 17, 1954, decision had declared, they affected everyone similarly situated, not only the plaintiffs—and (2) the lower courts should be entitled to consider physical factors but not psychological attitudes.

Adhering to conference protocol, the other justices spoke in turn, from the most senior (Black) to the most junior (John Marshall Harlan, who had replaced Robert Jackson on Jackson’s death). There was little agreement among them except as to the fact that the final opinion should be unanimous. Justice Black expressed the feeling when he declared that if a unanimous opinion were humanly possible, he would do everything he could to achieve it. Nonetheless, the Alabaman differed with Chief Justice Warren. He knew, he said, every southern district judge on anyone’s list, and not one of them was going to be for desegregation. Black advised saying and doing as little as possible; nothing was more important than that the Supreme Court should not issue what it could not enforce. He advised reiterating the unconstitutionality of racial segregation in public schools, formulating a decree affecting only the five cases before the court, and enjoining school boards from refusing to admit these specific Negro students.

Perhaps no one except the justices themselves will ever know exactly how the Warren-Black points of view were reconciled. However, the unanimity so necessary to this kind of decision was in some way achieved, and six weeks after the April 16 conference, on May 31, 1955, Chief Justice Earl Warren read the Supreme Court’s unanimous opinion, outlining that court’s plan for desegregating the nation’s schools. It was very much a Warren opinion, conforming to the points he had made in the April 16 conference.

The court showed that it was not “callously indifferent” to the difficulties of reorganizing southern society, as Hamilton Basso had said the South believed most of the nation was. The

decision in fact gave every opportunity to the South to itself solve whatever problems accompanied desegregation—and in its own good time.

As the 1954 decision had been clearly for the Negro plaintiffs, this 1955 decision was clearly for the defendant school boards. Together, the two decisions were an attempt to balance the claims of the two parties, to reconcile “public and private needs.”

The court solved the how of desegregation by attempting to be neither so vague as to invite “confusion and evasion” nor so specific that the court would become the nation’s school board. The burden of desegregating was placed on the local school boards, with the lower courts required to consider “whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.”

But the lower courts were not left to flounder. As Warren had suggested in the April 16 conference, they were given general guidelines: they were to adjust and reconcile “public and private needs”; they could consider “problems related to administration, arising from the physical conditions of the school plant, transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a non-racial basis”; and there was to be no gerrymandering. However, as Chief Justice Warren had also said in the April 16 conference, psychological factors were to be disallowed, and the opinion reaffirmed it: “the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.”

The crucial question of when was reserved until the last paragraph. It was not going to be the beginning of the next school term, as NAACP lawyers had urged. Frankfurter had warned the court in a memorandum against requiring a deadline, because, he said, it would have to be an arbitrary deadline and would be considered “an imposition of our will without the ascertainment … of the local situation. And it would tend to alienate instead of enlist favorable or educable local sentiment.” Instead, the phrase in Frankfurter’s January, 1954, memorandum appeared in the final decision: “the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. …”

In the years since the desegregation decisions most observers have credited Chief Justice Warren with welding the various individuals together to achieve unanimity. Warren modestly denies it: “It was the most self-effacing job ever written there. … Everyone there was so cooperative and so helpful,” he has said, going on to give credit to the three Southerners on the court—Clark, Reed, and Black—”not because they developed the legal philosophy of it, but because they had the courage to do what was done.” It was, Warren points out, “tough for them

to go home” for a time.

Justice Frankfurter had made the same observation, but with an added dimension, in a note he wrote to Justice Reed three days after the 1954 decision. It read: History does not record dangers averted. I have no doubt that if the Segregation cases had reached decision last Term there would have been four dissenters—Vinson, Reed, Jackson and Clark—and certainly several opinions for the majority view. That would have been catastrophic. And if we had not had unanimity now inevitably there would have been more than one opinion for the majority. That would have been disastrous. It ought to give you much satisfaction to be able to say, as you have every right to say, “I have done the State some service.” I am inclined to think, indeed I believe, in no single act since you have been on this Court have you done the Republic a more lasting service. I am not unaware of the hard struggle this involved in the conscience of your mind and in the mind of your conscience. I am not unaware, because all I have to do is look within. As a citizen of the Republic, even more than as a colleague, I feel deep gratitude for your share in what I believe to be a great good for our nation.