Brown's Reflection

By Burt, Robert A. | The Yale Law Journal, April 1994 | Go to article overview
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Brown's Reflection


Burt, Robert A., The Yale Law Journal


Just one week separated the Supreme Court's announcements of its decisions in Brown II(1) on May 31, 1955, and Williams v. Georgia(2) on June 6, 1955. Del Dickson's fascinating account of Williams reveals the two decisions to be mirror images. Through his reconstruction of the Justices' deliberations in Williams, Professor Dickson shows the Court struggling with the same jurisprudential issues as in Brown II and reaching a virtually identical resolution--one that was novel, confusing, and ultimately misunderstood.

The conventional account today of Brown II is that the Justices were so acutely aware of the political vulnerability of their 1954 decision in Brown I--so fearful about the prospects of Southern resistance to school desegregation and the Court's practical impotence in forcing compliance--that they retreated from the high ground of constitutional principle by endorsing the "deliberate speed" implementation formula. Some critics have maintained that the Court committed a strategic error in Brown H; they argue that the white Southern elite would have accepted a clear-cut desegregation order and obtained at least grudging popular acquiescence among its constituents, but the Court's pronounced tolerance for delay opened the way for successful demagogic appeals to massive popular resistance.(3) Others have faulted the Court, regardless of its strategic sense, for allowing its fear of popular resistance to lead it to compromise and thereby abandon constitutional principle.(4) These critics have readily invoked such honored aphorisms as "justice delayed is justice denied" or "fiat justicia ruat caelum," the Latin formula which, as Dickson has ironically observed, is inscribed in marble above the Georgia Supreme Court's bench. Even Alexander Bickel, who praised Brown II as a proper acknowledgement by the Justices of the tensions between "principle" and "expediency" in a democratic polity, seemed to undermine his own approbation by his very terminology.(5)

But the Court's decision in Williams v. Georgia provides a different perspective on the Justices' contemporaneous deliberations in Brown II. Whatever the Justices might have feared regarding elite or popular reception of any order for immediate school desegregation, they had no remotely comparable reason to anticipate resistance to an order for a new trial for Aubry Williams. Just two years earlier, in Avery v. Georgia,(6) the Supreme Court had ruled that the jury selection process later at issue in Williams was unconstitutional; and the state court had acquiesced, setting aside James Avery's death sentence and imposing a prison term instead based on his guilty plea.(7) The next year, the Georgia Supreme Court--though affirming Williams' death sentence on procedural grounds--openly, and apparently ungrudgingly, acknowledged that the racially discriminatory jury selection practice used in Williams' case had "been condemned by this court and the Supreme Court of the United States."(8) The Georgia Court issued its opinion, with this recognition of the constitutional guarantee against race discrimination and the Supreme Court's role in its effectuation, on May 10, 1954--just ten days before the Supreme Court announced its decision in Brown I.

If the Supreme Court thus had no reason to fear that a decision invalidating Aubry Williams' conviction based on race discrimination would be met by Southern white resistance, why nonetheless did the Court hesitate to reach this result? The Court adopted virtually the same approach in Williams v. Georgia as it had in Brown II one week earlier: pointing to the antidiscrimination principle that the state had violated, implying that the Court itself had clear authority to order immediate redress of this violation, but nonetheless declining to exercise this authority while at the same time clearly expressing its hope and expectation that the state would voluntarily repent. If the unusual resolution in Williams was prompted by some motive other than a fear of noncompliance, other than "political expedience" in this sense, that motive might suggest an explanation for the Justices' similar resolution in Brown II.

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