It Could Have Gone the Other Way: At the Time, the Justices Had Doubts That Brown Was Rightly Decided

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In the fifty years since it was decided, Brown v. Board of Education has become a legal icon. The rightness of this famous decision invalidating racial segregation in public schools is no longer open to debate. Conservative legal commentators and prospective judicial nominees still criticize many landmark decisions of the Warren Court, but not Brown. No constitutional theory or theorist failing to support the result in Brown will be taken seriously today.

Such was not always the case. A Gallup poll taken the summer after Brown revealed that nearly half of all Americans opposed the decision. In the 1950s, eminent judges and law professors--including the great jurist Learned Hand--questioned whether it was rightly decided. Perhaps most surprisingly, the Justices who decided the case had grave doubts themselves whether invalidating school segregation was legally justified.

In a memorandum dictated the day Brown was decided, Justice William O. Douglas observed that a vote taken after the case was first argued in 1952 would have been "five to four in favor of the constitutionality of segregation in the public schools." Justice Felix Frankfurter's head count was only slightly different: He reported that a vote taken at that time would have been five to four to overturn segregation, with the majority writing several opinions.

Brown was hard for many of the Justices because it posed a conflict between their legal views and their personal values. The sources of constitutional interpretation to which they ordinarily looked for guidance--text, original understanding, precedent and custom--indicated that school segregation was permissible. By contrast, most of the Justices privately condemned segregation, which Justice Hugo Black called "Hitler's creed." Their quandary was how to reconcile their legal and moral views.

Frankfurter preached that judges must decide cases based on "the compulsions of governing legal principles," not "the idiosyncrasies of a merely personal judgment." In a 1940 memorandum, he noted that "no duty of judges is more important nor more difficult to discharge than that of guarding against reading their personal and debatable opinions into the case."

Yet Frankfurter abhorred racial segregation. In the 1930s he served on the legal committee of the NAACP, and in 1948 he hired the Court's first black law clerk, William Coleman. Nonetheless, he insisted that the Court could invalidate segregation only if it was found legally as well as morally objectionable.

Frankfurter had difficulty finding a compelling legal argument for striking down segregation. His law clerk, Alexander Bickel, spent a summer reading the legislative history of the Fourteenth Amendment, and he reported to Frankfurter that it was "impossible" to conclude that its supporters had intended or even foreseen the abolition of school segregation.

To be sure, Frankfurter believed that the meaning of constitutional concepts can change over time, but as he and his colleagues deliberated, public schools in twenty-one states and the District of Columbia were still segregated. He could thus hardly maintain that evolving social standards condemned the practice. Furthermore, judicial precedent, which Frankfurter called "the most influential factor in giving a society coherence and continuity," strongly supported it. Of forty-four challenges to school segregation adjudicated by state appellate and federal courts between 1865 and 1935, not one had succeeded. On the basis of legislative history and precedent, Frankfurter conceded that "Plessy is right." (Plessy v. Ferguson was the 1896 "separate but equal" decision upholding the constitutionality of state-mandated segregation on railroads.)

Brown presented a similar dilemma for Robert Jackson. In a 1950 letter Jackson, who had left the Court during the 1945-46 term to prosecute Nazi war criminals at Nuremberg, wrote to a friend: "You and I have seen the terrible consequences of racial hatred in Germany. …