With All Deliberate Speed

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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.