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

Preface

THIS book, which examines the Supreme Court's strategies in handling race relations cases from the 1954 decision in Brown v. Board of Education to the end of the 1960s, has two premises. The first is that shedding more light on the crucial American institution of the Supreme Court may dispel myths about it, but surely will not destroy its effectiveness.1 We are convinced that the study of the Supreme Court has been hindered by scholars' unwillingness to probe very deeply into the Court's workings, thereby reinforcing the Court's own secretiveness about how it operates. Those persons who still believe that the Court acts only to find and not make the law have difficulty thinking about the nation's highest court in terms of strategy, a concept which seems to them to suggest crass politics rather than principled judging. To elucidate the components of the Court's strategies, or even to try to infer them from often obscure data, seems to those persons to be highly indelicate. Even those who realize that the Court is a policy-maker, not merely a discoverer of preexisting law, often hold back from examining the Court openly. Our second premise is that, operating in a complex political environment, the Supreme Court cannot avoid politics in the broadest sense. The Court has at least a rough idea of what it wants to do and where it is going, and to be effective must undertake the difficult task of reacting to its environment. Thus, recognizing that the Court does not avoid politics entirely does not make the Supreme Court into something it is not; it remains a court.

Because attorneys' positions may serve as a limit on what judges can do, we look at the lawyers' arguments, but that attention is subordinated to the judges' strategies. Thus we have not devoted time to detailing the activity within the NAACP or the Department of Justice as the desegregation cases were argued.2 This does not mean that lawyers' strategies are unimportant; because of the NAACP's involvement in many cases, such strategies obviously were significant in the desegregation cases. Lawyers' strategies are especially critical as to the decision whether to bring a case initially or to appeal a lower court ruling. Even so, the cases brought to the Supreme Court are often a function of the types of cases the justices have recently accepted or rejected. This fact suggests the importance of the judges' strategies, which become even more important once the decision to proceed has been made. Furthermore, even in cases producing major constitutional doctrine, the lawyers did not necessarily pursue the case in order to achieve that doctrine but rather to win for their clients.3 They

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