Desegregation from Brown to Alexander: An Exploration of Supreme Court Strategies

By Stephen L. Wasby; Anthony A. D'Amato et al. | Go to book overview

Chapter 4

The Implementation Round and Brown II

THE time consumed in the third round of argument was longer than in either of the other two.1 Because argument was limited to matters of implementation, both the lawyers' presentations and the justices' questions were far better focused. They were also more complex because of emphasis on detail. Yet the basic posture of the parties can be identified. Kansas, Delaware, and the District of Columbia said, in effect, "We've made progress; so leave us alone." The NAACP, looking to past examples, said, "If progress has been made there, it can be made elsewhere." The South's position was that a requirement of prompt desegregation would mean that resistance would be great, that there would be no schools at all, and that desegregation would take many years. The NAACP retorted, "If the South says, `Never,' there is no need for gradualism." In the deluge of proposals made to the Court, several problems were discussed frequently. They were the uses to which the lower courts should be put, the specifics the Supreme Court itself should enunciate, and the element of time. There were suggestions that the cases be remanded to the lower federal courts, that to supervise implementation those lower courts should retain jurisdiction of the cases, and that a special master be appointed to review lower court rulings and make recommendations to the Court. Suggestions were also made that the Supreme Court say specifically that existing segregation statutes were unconstitutional and that school attendance not be based on race or color. Some persons wished the Court to write a detailed decree, while others wanted no more than a call for action in accord with the opinion. Throughout the disagreement as to what provisions might be included in a decree, were one to be written, ran the recurring theme that the Supreme Court and the lower federal courts were equity courts with wide latitude to fashion remedies. On the question of time, suggestions varied from demands for a "forthwith" decree, perhaps allowing only for "ad

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