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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
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.