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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
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.