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With All Deliberate Speed
Behind-the-scenes records reveal how the Supreme Court reached its fateful desegregation decisions
February 1973 | Volume 24, Issue 2
On May 17, 1954, the Supreme Court of the United States destroyed the legal basis for racial segregation in public schools. As it almost had to be in a case that stirred elemental passions, the decision was unanimous. It was also, as Chief Justice Earl Warren had told the other justices ten days earlier it must be, “short, readable by the lay public, non-rhetorical, unemotional, and, above all, non-accusatory.”
As the Chief Justice read the historic and potentially divisive opinion the nine justices—Justice Robert H. Jackson had left his hospital bed to be present —sat expressionless and calm, the rare picture of august solidarity belying three years of judicial soulsearching that had led to this moment.
Former Chief Justice Warren has said publicly that Brown v. Board of Education, as the segregation cases came to be known, was not the most significant decision of his sixteen terms on the Supreme Court. Warren singles out the reapportionment decision of 1962, which altered the nation’s voting patterns, as the “Warren Court’s” most significant decision—and events may yet bear out his judgment. But the 1954 desegregation decision, which still is attended by controversy, not only altered the nation’s educational patterns but also eroded a way of life and touched people’s most sensitive nerves.
Like most cases that come to the Supreme Court, Brown v. Board of Education was begun in a small way by quite ordinary people. Linda Brown, of Topeka, Kansas, in 1951 a fourthgrade student at a public elementary school for Negroes a long walk and a bus trip from her home, wanted to attend a nearby public elementary school for white children. She was turned away. Her father, the Reverend Oliver Brown, and twelve other parents sued the Topeka Board of Education in the local federal court. A special three-judge panel heard the case and decided that since Negro and white schools in Topeka were substantially equal, the Negroes were not discriminated against and they could not attend white schools. The Browns and the other parents appealed to the Supreme Court.
Since the Constitutional Convention of 1789 the issue of race had either been compromised or evaded, except during Reconstruction. No branch of government had been willing to confront it squarely, and as Justice Jackson commented during the oral argument of Brown, “I suppose that realistically the reason this case is here is that action couldn’t be obtained from Congress.” Beginning in the late 1930'3, the Supreme Court had begun gradually but steadily desegregating American life; restrictive covenants that insured residential segregation, the white primary, segregated education in graduate schools, Jim Crow laws—these and others had collapsed before the Supreme Court. Now the court was forced to face the most explosive issue of all: segregation in public elementary schools.
The justices were not unworldly men, however avidly they sometimes seemed to cultivate an aura of monasticism. Before appointment to the Supreme Court each of them had held some public office. During their deliberations they were grimly aware that their decisions—whether they would hear the case or not hear it; whether, if they did hear it, they declared racial segregation in public schools constitutional or unconstitutional—presaged resentment at best, and probably resistance, from a large segment of the population.
They spent an extraordinary amount of time discussing the problem, examining it from historical, legal, political, and social perspectives. When the Brown case first reached the Supreme Court late in 1951, the justices spent seven months discussing whether they would even hear it. Finally, on June 7, 1952, they agreed that the court could note probable jurisdiction; the vote was unanimous with the exceptions of Justice Jackson, who voted to “hold,” and then-Chief Justice Fred M. Vinson, for whom the docket book shows no vote.
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.”