Randolph's confession of dismay is perhaps the greatest compliment ever bestowed upon a Supreme Court opinion. Nothing so grand has ever been said of the Brown opinion by its critics, whether liberal or conservative, even after 50 years. Republicans read Marbury as a Federalist power-grab, but even if one takes their indictment at face value, Marshall neither proclaimed radical legal doctrine nor effected a social revolution by judicial decree. Brown sought to do both, and more, but Chief Justice Earl Warren's opinion lacked the persuasive plausibility that enabled Marshall to silence his critics.
In fairness to Warren and his colleagues, however, it must be admitted that no opinion justifying the result in Brown could have appeased Southern segregationists. Even so, Brown's fame has obscured the constitutional controversy surrounding its birth. It is now widely assumed that only segregationists and their allies were adverse to the decision. In fact, many of the most trenchant early criticisms were voiced by commentators like Edmund Cahn, Herbert Wechsler, and Learned Hand, who had no sympathy for the segregationist cause. They faulted the Court, inter alia, for grounding its decision on badly flawed social science rather than legal reasoning; for its unconvincing treatment of its own precedents and the legislative history of the 14th Amendment; for presuming that it could by judicial decree alter long-standing customs that had grown up in no small part because the Court itself had given them legal sanction; for failing to distinguish between what was desirable as a matter of policy and what the Constitution would permit; for failing, in short, to provide a persuasive, neutral constitutional rationale for what the justices themselves knew was a daring, indeed radical, undertaking. All this from commentators who applauded the Court's purpose.
Despite these shortcomings, Brown has nevertheless become, as Yale Law School Professor Jack Balkin has rightly said, an icon. No matter how often its legal defects are recounted, the Court's opinion manages to rise above them; the whole remains magically greater than the sum of its parts. The reasons are not difficult to understand. Time has both obscured Brown's vexing legal issues and reframed them in starkly moral terms: One either supports Brown, warts and all, or one supports the manifest injustice of racial inequality. History has rendered its verdict, and woe betide those who (to borrow William F. Buckley's memorable phrase) stand athwart it yelling stop. Thousands of articles and hundreds of books have told and retold the tale in emphatically heroic terms: against seemingly impossible odds, Brown ushered in a new birth of freedom for blacks. Inspired by the wise judicial statesmanship of the Chief Justice, a badly divided Court resolved its differences and, like Joshua of old, sounded the horn that brought down the walls of segregation. Brown is the second Emancipation Proclamation, the central chapter in a new Book of Exodus.
Considered as constitutional symbol, Brown is incontestably right, and there can be no caviling about its rightness, especially for those who suffered the evils of legally sanctioned racial oppression. Not surprisingly, virtually every improvement in race relations since 1954 is often credited to Brown's bounty. There is some truth to the attribution, but it is not the whole truth; and in some respects the attribution is quite misleading. Brown remains controversial today, but not because any serious critic wishes to defend the old order. To understand the enduring controversy, one must go beyond mere symbol and consider the case on three distinct levels: its effect on school desegregation; its significance for the civil rights revolution that followed; and, quite apart from the race question, its implications for constitutional jurisprudence generally.
As to school desegregation, brown's consequences are at best unimpressive and at worst a failure. Professor Gerald Rosenberg's exhaustive research into the matter (see, e.g., The Hollow Hope: Can Courts Bring About Social Change? ) tells a dismaying tale. Nine years after Brown was decided, barely one percent of black students in the states of the former Confederacy attended racially mixed schools. Eight years after that, the number had risen to roughly 10 percent. Nearly two decades of judicial decrees, in short, had yielded only marginally benefical results. Significant school integration occurred only after the political branches arrived on the field of battle. By judicious use of carrot (federal money) and stick (withholding funds), Congress and the Executive accomplished what the courts had fecklessly sought to do without benefit of political consensus. Brown's specific contribution to the later formation of that consensus, however, is at best attenuated.
For a decade or more after the decision was handed down, the Court gave little guidance to lower federal courts as they struggled to comply with the presumed intent of Brown's often opaque silences. Was the decision limited to schools, or did it intend a broader assault on Jim Crow? If the latter, how far did the constitutional mandate extend? By the time the justices got around to answering these and other significant questions, the situation on the ground had changed so radically that no one could say with any clarity what, precisely, Brown's intention had been. Even on the schools question, the Court had not explained what it meant by desegregation. Many lower federal courts eventually read the decision to require not only unitary school systems but racial balance within schools. That, in turn, led to busing orders, which were perceived to be, and in fact often were, draconian in detail. Busing made sense in the rural South, where "neighborhood" schools were rare and where, under the old regime, black and white schoolchildren often passed one another on the roads. But when applied to more urban settings, it was often counterproductive. In many areas suburbanization in and of itself virtually ensured that busing to achieve racial balance would fail.
On these and a host of related issues that arose in Brown's wake, the Supreme Court kept its distance. By the 1970s, unitary school systems had become the legal norm, but demographic change had given them a racial aspect quite different from what had been contemplated in the early 1950s. Today, schools in many if not most inner cities have re-segregated. That is hardly Brown's fault, but it reminds us that the complexities of social reform are often beyond the capacities of courts to understand or remedy. It also suggests that, as far as schools are concerned, Brown's legacy is, to say no more, decidedly mixed.
But was not Brown the catalyst for broader political and social change? Perhaps, but if so, Rosenberg can find no evidence for it. As he argues in a recent article,
Regarding indirect effects, little or no evidence supports the claims that Brown gave civil rights salience, pressed political elites to act, pricked the conscience of whites, legitimated the grievances of blacks, or inspired the activists of the civil rights movement.
Rosenberg's conclusion about the impact of Brown on the 1960s civil rights revolution is massively reinforced by the work of University of Virginia legal historian Michael J. Klarman (see From Jim Crow to Civil Rights). Some years ago, Klarman began to assess Brown's precise legal and political significance. Like Rosenberg, he discovered that subject to be woefully under-addressed in the otherwise comprehensive literature on the case. His research argues, compellingly, that the transformation of racial policy in the 1960s and 1970s resulted not from Brown, but from powerful social, political, and economic trends that had been underway for many decades before the case was decided. If anything, Klarman says, Brown was more a consequence than a cause of racial progress. Brown's indirect or symbolic effects, he adds, derive chiefly from the law of unintended consequences:
The crucial link between Brown and the mid-1960s civil rights legislation inheresâ€¦in the decision's crystalizing effect on southern white resistance to racial change. By propelling southern politics dramatically to the right on racial issues, Brown created a political climate conducive to the brutal suppression of civil rights demonstrations. When such violence occurred, and was vividly transmitted through the medium of television to national audiences, previously indifferent northern whites were aroused from their apathy, leading to demands for national civil rights legislation which the Kennedy and Johnson administrations no longer deemed it politically expedient to resist.
One need not accept every feature of Rosenberg's and Klarman's judgments to understand the challenge they present to Brown's heroic mythology. The thoroughness and rigor of their research, together with their unalloyed support for black emancipation, make them unusually credible students of the subject. Those who take issue with their conclusion that Brown's impact on racial progress is less than meets the eye now bear the burden of demonstrating a comparably compelling counter-thesis.
If Brown's impact on the race question is difficult to measure, its broader influence on constitutional jurisprudence can hardly be overestimated. Proper exposition of the topic would require a treatise (of which more than a few have already been written), but it suffices to say that Brown radically altered our understanding of what it means to have a written Constitution and what the Court's interpretative role should be. On the first question, Brown advanced the notion that constitutional text and tradition may be disregarded if they stand in the way of achieving social justice. On the second question, Brown paved the way for increasingly bold assertions of judicial supremacy, which are by now so routine (and so routinely acceded to) that only close students of the subject realize how radically contemporary practice departs from the pre-Brown understanding of the judicial function.
The justices in 1954 could not have been fully conscious of either implication. They were, all things considered, a fairly conservative lot: New Deal liberals to a man, but far from seeing themselves as an all-powerful council of Platonic lawgivers. Their memory of what happened to the Court when it challenged Franklin Roosevelt's administrative state in the 1930s was too vivid for that. Brown presented, so they thought, readily distinguishable issues. The sine qua non of judicial power after 1938 was that the Court would not question the constitutionality of federal economic and social welfare legislation or, save when they raised issues of federal preemption, of similar gestures in the states. The protection of non-economic rights was an altogether different matter. Following the Court-packing imbroglio, the justices by gradual degrees persuaded themselves that they were uniquely empowered to protect civil and political rights, especially against state and local government action. Their weapons of convenience were the incorporation doctrine, which applied the Bill of Rights against the states, and an expansive interpretation of the 14th Amendment's Due Process and Equal Protection Clauses. The elaborate judge-made formulas and mechanisms now used to measure the constitutionality of government action—"fundamental rights," "strict scrutiny," "compelling state interest" and the like—had not yet been articulated in 1954; all that would come later. But their inchoate presence was felt when the justices decided to take up the cause of school desegregation.
The justices knew that overturning school segregation would require them to take liberties with the Constitution. Such reservations as they may have had on that point, however, were soon overwhelmed by their desire to do good. That perhaps explains why Warren's opinion in Brown is thin and unpersuasive in its specifically legal justification. Rather than address head-on what they understood to be serious constitutional obstacles, the justices resolved instead to ignore or work around them. The want of a coherent legal rationale disposed them, in turn, to write what was in effect a plea to the conscience of the nation. From the perspective of 1954, the important point is that most of the justices did not see themselves as precipitating agents of radical constitutional change across a broad front. Least of all did they realize that they were setting forces in motion that would in time establish judicial supremacy.
The Court's Dilemma
The central legal issue in brown presented the Court with an exquisite dilemma: on one side was an apparently settled body of constitutional understanding which upheld the validity of segregated schools; on the other was the argument that "separate-but-equal" was a misbegotten constitutional doctrine that perpetuated racial injustice. It is sometimes said that the Court might better have resolved this conflict by invoking the concept of a "colorblind" Constitution, made famous by Justice John Harlan's dissent in Plessy v. Ferguson. Harlan's position, however, was not without its own difficulties. For all the rhetorical force of his Plessy dissent, and for all the nobility of its sentiment, Harlan himself knew (and acknowledged in a number of other opinions) that the 14th Amendment had not embraced the broad concept of colorblindness. And whatever one might say about particular sponsors of the 14th Amendment, it was clear that a right to attend racially neutral schools was not among the new federal rights ordained by Congress or ratified by the states.
The Court resolved this dilemma, we now know, by sidestepping the issue altogether ("[W]e cannot turn the clock back to 1868 when the [14th] Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written."). It thereby avoided the inconvenience of having to address its prior precedent (which explains why Plessy was inferentially, but not explicitly overruled), but only by severing constitutional text from its original meaning. The phrase "living Constitution" had not yet been embraced, but its premises, surely, were hatched in Brown. Thereafter, by gradual degrees, it became the rubric by which original meaning and settled precedent were set aside in the interest of achieving justice. Once the idea of a living Constitution took root, there was very little to stop the judiciary from becoming what one senior federal judge later called a "floating constitutional convention."
Little of this, as I say, appears to have been present in the minds of the justices in 1954. Indeed, we know enough about what induced individual justices to act to say that, had they foreseen where Brown would lead, a majority may never have come together. Nevertheless, in the aftermath of Brown, the Court willy-nilly convinced itself that if constitutional precedent and tradition could be ignored or rewritten for the sake of achieving racial justice, the same formula could be applied to any number of other pressing social problems. In the two decades following Brown, the Court fashioned, without benefit of formal amendment, a substantially new constitutional order. In ways that would have been thought shocking (even to many Brown justices) only a few years before, the Court wrote a new national code of criminal procedure; contrived a theory of representation wholly at odds with that of the original Constitution; conjured a right to privacy out of thin air and used it, inter alia, to eviscerate every abortion law in the nation; substantially altered both the speech and religion clauses of the 1st Amendment; and in general second-guessed on novel and dubious constitutional grounds a large body of state law and custom. If there is a subject on which the Court now feels ill-disposed to opine, or about which it is reluctant to lay down detailed constitutional mandates, it is hard to think of what it might be.
Because Brown seems to have set all this in motion, or at least to have given modern judicial supremacy its apostolic benediction, we tend to forget what a close-run thing that decision was. We also tend to forget the substantial reservations that some members of the Court (in the early going, perhaps even a majority) had about the constitutional justification for the Court's action. These were essentially five in number:
- 1) Not only was there no evidence that the drafters or ratifiers of the 14th Amendment intended to ban school segregation, but the 1868 Congress (and all of its successors) had authorized and funded segregated schools in the District of Columbia. Nor was segregation confined to the states of the former Confederacy: segregated schools enjoyed the benefit of legal sanction outside the South as well.
2) The Court's own precedents over many decades had given their constitutional blessing, not only to segregated schools but, more generally, to "separate-but-equal" as the controlling test for 14th Amendment compliance in many other areas where race was a factor.
3) Custom had settled in and around these constitutional principles and precedents. Whatever moral judgment one might make about such habits, and in the absence of a new political consensus to the contrary, were not such legally sanctioned customs entitled to great respect?
4) Even assuming that a credible legal argument against segregation could be mounted on equal protection grounds, wasn't Congress the constitutionally appropriate instrument for change? Whatever fuzziness might exist at the edges of the 14th Amendment's legislative history, the intent and language of Section 5, authorizing congressional enforcement, seemed perfectly clear. Congressional involvement, moreover, would give more reliable protection to new rights the Court might announce but was limited in its power to secure.
5) The Court's own institutional interest had to be considered. What good would be accomplished if, in the effort to emancipate blacks, division among the justices merely mimicked the political division of the country? Moreover, what would happen if the states refused to implement the Court's instructions? In the face of significant opposition (which everyone on the Court anticipated), what weapons other than judicial orders might the Court invoke? Doing nothing was bad enough, but even worse was the prospect of trying, but failing, to effect by judicial decree the emancipation so long desired by blacks. The nation would be riven, those sorely oppressed would continue to suffer, and the Court (and with it, the rule of law) would be weakened.
Such were the major concerns animating the justices after the first oral argument in December, 1952. Justice William O. Douglas's notes from the first conference indicate that, had a vote been taken at the time, there were probably five votes to sustain Plessy. Whether or not Douglas's assessment was correct, it is clear that the Court was badly divided. It is also clear that those who wished to overrule Plessy had no coherent legal theory to justify the result. The other side seemed equally uncomfortable in having to defend "separate-but-equal." The lack of a clear majority and the discomfiture on both sides no doubt explain why a formal tally was not taken. In any event, the personal and legal reservations of the justices were sufficiently strong afterwards that the Court ordered a second round of oral argument on the meaning of the 14th Amendment and, assuming that hurdle could be overcome, on the scope and efficacy of a judicial order to desegregate the schools. In the interim, Chief Justice Fred Vinson, who supported Plessy, died ("the first indication that I have ever had," Felix Frankfurter acidly remarked, "that there is a God"). Earl Warren's arrival changed everything. The logjam broke, and on May 17, 1954 Brown v. Board of Education entered the United States Reports—and the history books.
Justice Jackson's Memorandum
The legal, personal, and political reservations of the justices even after the second oral argument are nowhere better revealed than in the draft memorandum prepared by Justice Robert H. Jackson, a powerful and persuasive member of the Court, and one of the most eloquent justices in history. Although cited in various chronicles of the Brown decision, and selectively excerpted in one anthology, it has never to my knowledge been published in full. E. Barrett Prettyman, Jr., Jackson's senior clerk at the time, indicates that the justice made repeated changes in the draft between January and March of 1954 but never circulated it to his colleagues. The final version was dated "4/15/54" by Jackson's long-time secretary, Elsie Douglas. Prettyman, however, says that Jackson gave what turned out to be the final version to him for comment on March 15. The justice was hospitalized on March 30 following a heart attack and had the March 15 draft in hand when the Chief Justice visited him to share his own draft of what became the Court's opinion. It is probable, therefore, that Elsie Douglas meant to inscribe March 15, rather than April 15, as the date of the Jackson memorandum.
In any event, Jackson, like most of his brethren, had been deeply troubled by the deliberations in Brown. Although by the early spring of 1954 a decisive majority favored overruling Plessy, Jackson was not at all satisfied, even after the second round of briefing and oral argument, that the Court could deliver a persuasive rationale for altering so well-settled a rule. He was equally worried about the ability of the judiciary to enforce its decision. Although Jackson began the memorandum as an outline for a concurring opinion, parts of it read as if he were trying to convince himself (and others) of the rightness of the Court's decision. Like Warren's opinion, it makes a great effort to be conciliatory in tone; its legal argument, however, is strikingly different from that finally adopted by the Court, especially on the critical 14th Amendment question. We do not know whether Jackson changed his mind on the merits, bowed to the Chief's alternative rationale for the sake of unanimity, or was simply too ill to see his task to completion. Whatever the reason, after his meeting with Warren in Doctor's Hospital, he pursued the matter no further. He returned to the Court on May 17, when the Brown cases were handed down, and died later that fall.
The memorandum is an altogether absorbing document no less for what it reveals about the Court's dilemma than for what it reveals about Jackson himself. It contains four sections. The first is by way of prologue, in which he acknowledges that resolution of the case "would be simple if our personal opinion that school segregation is morally, economically, or politically indefensible made it legally so." Segregation, however, is not only "deeply imbedded in social custom in a large part of the country" but it rests "on an almost universal understanding that it is constitutionally permissible." Jackson then indulges in a bit of armchair sociology, noting that separation of races, religions, and nationalities, whether voluntary or imposed, has been a common feature of almost every society (including the Northern states). He attributes the apparent universality of the phenomenon to "an instinct for self-preservation."
In the South, however, the custom had acquired a particularly stringent and oppressive form. "The white South harbors in historical memory, with deep resentment, the program of reconstruction and the deep humiliation of carpetbag government imposed by conquest." Its resentment, he adds, was compounded because "the North made the Negro their emotional symbol and professed beneficiary, with the natural consequence of identifying him with all that was suffered from his Northern champions." The South's disposition on race, in short, "involves more than mere racial prejudice." He has no power to discern, Jackson adds, whether a judicial decree to end segregation will mollify or exacerbate racial tension in the South.
But I am satisfied that it would retard acceptance of this decision if the Northern majority of this Court should make a Pharisaic and self-righteous approach to this issue or were inconsiderate of the conditions which have brought about and continued this custom or should permit a needlessly ruthless decree to be promulgated.
The prologue concludes by frankly acknowledging that the present litigation has forced the Court to raise questions about the limits of judicial power "as far-reaching as any that have been before this Court since its establishment."
The second section of the memorandum surveys the legislative history of the 14th Amendment and prior judicial interpretation of its meaning. Its opening paragraph bluntly presents the central question that has hovered in the background, inadequately answered, ever since Brown was decided:
Layman as well as lawyer must query how it is that the Constitution this morning forbids what for three-quarters of a century it has tolerated or approved. He must further speculate as to how this reversal of its meaning [can be accomplished] by the branch of Government supposed not to make new law but only to declare existing law and which has exactly the same constitutional materials that so far as the states are concerned have existed since 1868 and in the case of the District of Columbia since 1791. Can we honestly say that the states which have maintained segregated schools have not, until today, been justified in understanding their practice as constitutional?
The answer may perhaps be found in the "majestic and sweeping generalities" of the Due Process and Equal Protection Clauses, which are "capable of being read to require a full and equal racial partnership in all matters." But not without more: since neither clause "specifically mentions education or segregation," and barring any explicit prohibition of segregated schools, a definitive answer "can only be supplied by interpretation."
How is this to be done? The customary habit of turning to original meaning, which he supports, encounters special difficulties in addressing the 14th Amendment. Its legislative history, Jackson says, "yields for me only one sure conclusion: it was a passionate, confused and deplorable era." Sponsors and opponents glossed the proposed language to suit their own advantage, in the former case quieting fears and in the latter exaggerating consequences. Taken all in all, there is little indication that much thought had been given to the specific issue of segregated education, and even less that anyone believed that the Reconstruction amendments "were designed to be a solution."
The matter is rendered even more problematic when one passes from words to deeds, for the same Congress that gave birth to the Reconstruction amendments, and every Congress since, approved segregated schools in the nation's capital. While some states that had previously maintained segregated schools voluntarily abandoned the practice in the decades following the Civil War, there is no evidence that they were under any constitutional compulsion to do so. "Plainly," Jackson concludes, "there was no consensus" among any of the ratifying states "any more than in Congress" that the 14th Amendment was intended to ban segregation. Federal and state judicial precedent, moreover, strongly confirms this view. In short, he cannot find "in the conventional material of constitutional interpretation any justification" for concluding that segregated schools "can be judicially decreed, up to the date of this decision, to have violated the 14th Amendment."
The third section of the memo is entitled "Does The Amendment Contemplate Changed Conditions?" Jackson's answer is twofold: first, to the extent the Amendment may be deemed to apply to segregated education, Section 5 ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this Article.") contemplates that Congress should take the lead role, with "a wide discretion" to address changes of condition. Second, while the Court is not altogether precluded from acting, in virtue of its authority to decide specific cases, the exercise of its power must be attended with great caution. There follows an extended commentary on the limits of judicial power, in which Jackson expresses great skepticism about the judiciary's ability to effect substantial social reform. Because the courts have no power to control any person not before them in litigation, he doubts whether "a pronouncement that segregation is unconstitutional will be any more self-executing or any more efficiently executed than our pronouncement that unequal facilities are unconstitutional."
The Court may strike down legislation supporting segregation in the schools, "but any constructive policy for abolishing it must come from Congress." Congress has the power of the purse and can create appropriate administrative mechanisms to ensure that a policy of desegregation is carried out. The judiciary possesses neither capacity and, unlike Congress, has no way of discerning or forming political consensus. A decree by the Court, in short, "does not end but begins the struggle over segregation." Because the courts are limited in their ability to effect change, Jackson says,
I will not be a party to thus casting upon the lower courts a burden of continued litigation under circumstances which subject district judges to local pressures and provide them with no standards to justify their decisions to their neighbors, whose opinions they must resist.
In similarly strong language, Jackson then chastises the Justice Department for attempting to thrust the entire burden of school administration upon the courts: "The Department offers us no standards, and none exist in law, to determine when and how school systems should be revamped." Such an exercise, he continues, exceeds the power and capacity of the judiciary, which is properly limited to deciding cases and controversies between particular parties. Then this:
Nothing has raised more doubt in my mind as to the wisdom of our decision than the character of the decree which the Government conceives to be necessary to its success. We are urged...to supply means to supervise transition of the country from segregated to nonsegregated schools upon the basis that Congress may or probably will refuse to act. That assumes nothing less than that we must act because our representative system has failed. The premise is not a sound basis for judicial action.
In the final section of the draft memorandum ("The Limits and Basis of Judicial Action"), Jackson returns to the telling question he raised in the opening paragraph of the second section: given all he has said about the seemingly settled meaning of the law and widespread reliance upon that meaning, how is it possible for the Court to rule against school segregation without doing violence to the Constitution? His attempted solution, at once simple and elegant, invokes the then universally accepted canons for applying the Equal Protection Clause. Equal protection, he says, has never been understood to prevent the state from making "reasonable classifications" among its citizens; nor does it require that "identical treatment" must be accorded to all. Rather, it requires that
the classifications of different groups rest upon real and not upon feigned distinctions, that the distinction have some rational relation to the subject matter for which the classification is adopted, and that the difference in treatment between classes shall not go beyond what is reasonable in light of the relevant circumstances.
Jackson adds that the Court need not alter these traditional criteria in order to find segregated schools unconstitutional.
The states err not because they rely on incorrect equal protection principles, but because they rely on factual assumptions concerning blacks that no longer obtain. However reasonable it may once have been to recognize class distinctions based on race, social conditions have radically changed:
Indeed, Negro progress under segregation has been spectacular and, tested by the pace of history, his rise is one of the swiftest and most dramatic advances in the annals of man. It is that, indeed, which has enabled him to outgrow the system and to overcome the presumption on which it was based.
Any prior handicap attributed to inheritance and environment "has been too widely overcome today to warrant these earlier presumptions based on race alone." That some Negroes may not be so advanced is beside the point, for the evidence is otherwise compelling. The Court is therefore justified in concluding
that mere possession of colored blood, in whole or in part, no longer affords a reasonable basis for a classification for educational purposes and that each individual must be rated on his own merit.
Jackson then takes judicial notice of a second critical fact: In contrast to the mid-19th century, public education is "now regarded as a right of a citizen and a duty enforced by compulsory education laws." Providing or withholding public education can no longer be considered, as it once was, a matter of grace. In short, not only do racial classifications now lack a reliable foundation in fact, but earlier legal presumptions about public education have radically changed. Lacking the factual and legal foundations on which they once rested, segregated schools are therefore no longer constitutionally defensible. That conclusion involves "neither novel nor radical doctrine," for it is well understood
that statutes once held constitutional may become invalid by reason of changing conditions, and those held to be good in one state of facts may be held to be bad in another. A multitude of cases, going back far into judicial history, attest to that doctrine. In recent times, the practical result of several of our decisions has been to nullify the racial classification for many of the purposes as to which it was originally held valid.
I am convinced that present-day conditions require us to strike from our books the doctrine of separate-but-equal facilities and to hold invalid provisions of state constitutions or statutes which classify persons for separate treatment in matters of education based solely on possession of colored blood.
Jackson concludes the memorandum with remarks on the necessity for fashioning a "reasonably considerate decree" to enable the states to reorder educational systems in accordance with the new rule. "I favor, at the moment, going no farther than to enter a decree that the state constitutions and statutes relied upon as requiring or authorizing segregation merely on account of race or color, are unconstitutional."
The Road Not Taken
We do not know for sure what prompted Justice Jackson to withhold his draft. Prettyman reports that after meeting with Chief Justice Warren, Jackson, "although disappointed that it [Warren's draft opinion] did not rely more on law, seemed overwhelmingly relieved that it contained none of the attributes he had feared, and delighted that it was an opinion he could join." Jackson accordingly abandoned whatever thoughts he had once entertained about issuing a concurrence.
With the benefit of hindsight, that is unfortunate. Had Jackson issued a polished version of his argument as a concurrence, the unanimous front Warren and others desired would have fractured. The appeal for unanimity was a strong argument at the time, but we now know the Court's united front failed to accomplish its intended purpose. Unanimity was bought at a price, and the price was that, by begging so many contentious issues, Warren's opinion merely postponed serious argument about Brown's constitutional plausibility. The Court's unity was thus a false unity. Had Chief Justice Warren's opinion been the only alternative to maintaining the shameful pretense of "separate-but-equal," one might be forgiven for supporting it despite its considerable defects. But, as Jackson makes clear, it was not the only alternative. His draft not only presents a more compelling constitutional argument on the merits; it is a vastly superior expression of judicial craft.
For one thing, it is refreshingly candid about the nature of the Court's dilemma, which was hardly a state secret. The Court's opinion, by contrast, has about it an irreducible wink-and-nod quality, as though trying to mask the radical presumption that the Court was uniquely qualified in its understanding of the race question and uniquely suited to effect a wise resolution.
If the justices hoped to persuade the nation by such an approach, they were sadly mistaken. Even James Reston of the New York Times, a liberal's liberal, was puzzled and unconvinced by the Court's rationale, saying that it read more like a sociological treatise than a legal opinion. To this day, Brown's argument lacks persuasive legal force even as its symbolic message has triumphed in the court of public opinion. The latter triumph, however, was prompted less by what Brown said than by the contumacy of the Southern strategy of "massive resistance." Bull Connor's dogs did more to rouse the national conscience than any utterance by the Supreme Court between 1954 and the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. In the interim, Brown inadvertently gave Southern opposition undeserved credibility. By severing its argument from the binding authority of existing constitutional text, critics argued, Brown mocked the very idea of a written Constitution. Segregationists, to be sure, were unlikely to be assuaged in the short term by anything the Court said, but Brown's rationale created the impression that the decision was simply made-up law.
Jackson's approach, by contrast, makes a noble effort to connect the result to longstanding and well-understood equal protection criteria. His forthright summary of the 14th Amendment difficulty is faithful to the historical record; it masks nothing while bowing to the Amendment's presumptive authority. He is equally forthright about the necessity of building a bridge between the Amendment's original meaning and the conclusion reached by the Court in the school desegregation cases. Jackson lays the foundation by invoking traditional equal-protection standards, planting the axiom that lawful class distinctions must rest on real, not feigned criteria. This allows him to launch a frontal assault against unspoken but prevalent assumptions about Negro inferiority and incapacity. That, too, is wonderfully honest and direct, and for that reason alone stood a better chance of blunting and exposing racial prejudice than the embarrassing psychological blather about feelings of inferiority adduced by the Warren opinion. The second part of Jackson's changed-circumstance argument—the rise of public schooling to the status of a constitutional right—was far more persuasively and plainly put than the references to education contained in the Court's opinion.
Jackson's equal-protection analysis was, as he undoubtedly knew, a bit of a stretch, but it was a perfectly plausible response to those who argued that the "separate-but-equal" rule was permanently cast in constitutional stone. Jackson's argument in effect recasts separate-but-equal from an unchangeable constitutional mandate to a prudential rule whose wisdom presupposes a particular understanding of certain facts. If the factual suppositions change, so can the prudential rule that was contrived to accommodate them. His approach, in short, allows us to honor the unchanging principles of the Constitution and at the same time to acknowledge the changing circumstance in which those principles must be applied. Contrast that approach with Brown's cavalier dismissal of the 14th Amendment conundrum, and its equally cavalier presumption that the Court was empowered to invent a new constitutional principle because the old one stood in the way of what it sought to do.
Jackson's memorandum is notable, too, for its emphasis on congressional action as essential to any program of racial reform. His argument here is both legal and political: he rightly notes that the 14th Amendment gives Congress the lead role in redefining the content of the "majestic and sweeping generalities" of the Due Process and Equal Protection Clauses. The Court has an important role, too, Jackson says, but the judicial power is limited to particular cases and controversies, where it can bind the parties before it. Any broader role for the courts is decidedly secondary to that of Congress, which by its very nature reflects even as it helps to shape popular sentiment.
Once again, Jackson's argument prompts us to reflect on important matters that Brown did not deign to entertain. It recognizes that judicial power must be limited both because courts cannot as a practical matter accomplish certain goals, and because their constitutional authority rests ultimately, and rightly in Jackson's view, on the consent of the people. Contrast his practical and constitutional humility with the countervailing presumption, not to say effrontery, of the Brown opinion. The latter exhibits almost no understanding of judicial restraint, whether considered as a principle of constitutional propriety or as a principle of institutional practicality. On the contrary, it magnifies the Court's constitutional authority and entertains utopian expectations about judicial capacity to alter longstanding legal habits and social customs. Jackson's fears on both the practical and constitutional points have proved to be remarkably prescient.
We cannot know, of course, whether a Jackson-type opinion would have fared better than Brown itself. It is entirely possible that the South would have dug into "massive resistance" against his argument as it did against the Brown opinion. But Jackson's approach has manifestly superior virtues, both legally and politically. He understood, as the Brown opinion never stooped to acknowledge, that any long-run change in school policy would require the political assent of Congress. Even if his appeal to congressional power had been deflected by that body in the short run, no one would have been in any doubt about where the ultimate responsibility lay. Declaring new rights is easy when compared with the labors of giving them practical effect. The Jackson memorandum is a model of judicial self-restraint even as it reminds us that the Court's duties sometimes propel the justices into the middle of the political thicket. What Jackson would have done after the South rose in its wrath, no one knows. But his argument, precisely because it honored the form and structure of the traditional Constitution, provided a stronger foundation to counteract Southern legalisms than anything offered by the Brown opinion. It offered a much more persuasive rationale for the rest of the nation as well.