Transcripts For CSPAN Landmark 20240703

Quite often in our most famous decisions are ones that the court took that were unpopular. Lets go to a few cases that illustrate very dramatically and visually what it means to live in a society of 310 million different people who stick together because they believe in a rule of law. Good evening and welcome to landmark cases and 2 3 of the way of 12week series looking at Historic Supreme Court zigs. Brown v. Board of education and listen to linda brown on the roots of this case. My memory of brown began in the fall of 1950. In the quiet kansas town of topeka, where a mildmannered man took his 7yearold daughter by the hand and walked briskly to the allwhite school and tried without success to enroll his child. That parent in topeka child to enroll their children was long overdue. Many evenings my father would arrive home to find my mother upset because i had to take a walk like she did many years before and catch a school bus and debus two miles across town. I can remember that walk. I can only make half of it some days because the cold would get too bitter. I can still remember taking that bitter walk and the terrible cold that would cause my tears to freeze upon my face. She is talking about her experience as a school child in topeka, kansas and tonight for the next 90 minutes, we will learn about how it came to the court and let me introduce you to our guests. A Harvard University where she teaches constitutional law and history. Welcome. And a Constitution Center in philadelphia and president and c. E. O. And has been our partner for our entire series and author of numerous books on the Supreme Court. Nice to have you at the table. Wonderful to be here and congratulations on this great series. Its a great thrill. Let eye talk very big picture on the issue in this case. What was the heart of what was decided here. Welshing the Supreme Court in this case considered the question of whether the state mandated tools that was constitutional under the 14th amendment and opportunity for the court and 1896 in which it had found that segregation on rail cars was within the constitution. Why didnt this become a landmark decision . By overturning plessy, the court faced the disdain of this decision and reconstruction amendment, the 14th amendment which turns 150 next year was designed to ensure equality of civil rights and Justice Holland thought it was obvious that the right to travel on railroads separate but equal is inherently unequal. To the factthait took almost 100 years to recognize what was obvious to anyone in the south, as Justice Harlan said in plessy, he said everyone knows the purpose of segregation was to degrade africanamericans. The fact that it took so long for the court and the country to recognize that is what made brown a landmark of the 20th century. It was known simply as brown, but what some people would be surprised to learn is brown isnt one case, but five cases. Explain how that works, the consolidation. I have so get out my cheat sheet. One involved the d. C. Government, so whether the federal government as well as states should have separate schools. Couldnt use the equal protection clause because that only binds the states. Instead it had to use the fifth amendment to the constitution which stops congress from deny anything person due process of law. The court read into that clause, they said it one unthinkable that if the states cant discriminate that texas can. There were other interesting cases including one prompted by protests. By the plaintiff. Here they are. The only winner in naacp was again hart vs. Belton out to have delaware. At that time the trial court did order that africanamericans be admitted to segregated schools. The davis decision came out of virginia which challenged segregation in Prince Edwards county. Finally there was a case calls griggs vs. Elliot in South Carolina, the first of the cases. There were human stories behind each of those cases and its almost a coincidence that linda brown, who so movingly spoke, became the face of all five cases. How does the court decide to enjoin cases like this into one case . They raise the same issue as the one case. They were consolidated for convenience and because it made sense to consolidate them and consider this issue as it was raised in the states. The naacps strategy involved filing cases in the state where the issues were most stark as to the retail that they were able to show in brown and that was that separate was never truly equal. Thats what the court decided. That Justice Browns decision in plessy, where he said that if there is a harm of separation, of segregation, its only because they put that on it. In brown the court realized the problem is segregation in schools and generally, the court went on to stipulate, it was a stigma. It was a sign that blacks were considered inferior. One of the things that made this poll one of the ways this is made better is your participation. You can phone us, well go to calls in about 20 minutes. If you begin dialing now you can get into the cueue. Please be careful when youre dialing those numbers as well. Mountain and pacific time zones. Then you can send us a tweet if you do, use the hashtag landmarkcases. We have this video you just saw posted, there are comments coming in ush that. We look forward to hearing your thoughts on this case. Lets talk more about the history of the case. I want to learn more about plessy vs. Ferguson, 1896. You mentioned it was a transportation case. It was. This was a time when jim crow was not jet up and running. So a law requiring segregation was not welcomed universally by railroads themselves. It was challenged as a violation of the equal protection clause. As tomiko well said, Justice Brown held for the court as long as the cars are equal theres no problem because equality is all the constitution requires and any imputation of inferiority is the problem of africanamericans. Justin John Marshall harlan, who had one of the greatest dissents of the 19th century, that is kentucky former slave state, hes a knownothing turned abolition us, saying, id rather be right than be consistent. Hes the one who when he writes the decision to strike down the Civil Rights Act of 1875, his wife puts the pen that chief justice toney had used to write the dred scott decision, he realized this is a pen who, if somebody has writers block, it makes the word flow. It is a spectacular dissent in plessy vs. Ferguson that says everyone knows the real purpose of separation was not for the convenience of both pears but to stigmatize africanamericans. He said with respect to civil rights the constitution neither knows nor tolerates classes among citizens. Theres no caste here. Theres an odd preface to his decision which is jar big modern terms. He said the white race at the moment is preeminent and so it will continue to be if it maintains its traditions. But in respect to civil rights theres no the constitution is color blind. He was continuing a distinction many held. You have to give civil rights to everyone but were not mandating social equality. That has an uncomfortable tone for us. I think that right. Its almost as if what Justice Harlan is saying is, its overkill, to dirty up the constitution with these kind of racial classifications. You can read the preface to that wonderful part of his opinion where he says the constitution is color blind as in a way saying that because of social conditions, its not necessary, really, to stipulate in the law, to have our constitution besmirched by this practice of segregation. This is so important and interesting, this dissent is so important. Thurgood marshall reads it before he argues brown v. Board of education. Hes inspired by harlans dissent. But as we know, nowadays, the question is when harlan said the constitution is colorblind, did he mean all racial qualifications are impermissible, or sit he saying its just with respect to civil right, fundamental rights, that the constitution cant have classifications. Or is he saying no classifications or only classifications that affirm a caste system . This is what affects affirmative action. That gives rise to the next question which is the legacy of that decision. Its so hard to compress the next 50 years into with a couple of sentences but we must for time. So did plessy vs. Ferguson that legalized separate but equal, did it give rise to jim crow laws or would they have happened anyway . Thats a hard question but its probable that the compromise of 1876, when the Republican Party in exchange for winning this contested election got out of the business of enforcing reconstruction, would not have had the force of will to actually resist jim crow as it arose. So i wouldnt say id be interested, i wouldnt say plessy caused jim crow but it could have out the other way and might have stopped it. I think thats exactly right. I would not ascribe to the Supreme Court that kind of power at that time, it was pretty late in the day. But the politics of the situation are really important. But it nevertheless is an important indication from the court and an indication from the court to which there was no great outcry in the public, suggesting that by this time there had been a consensus reached that the south would do what the south would do in terms of Race Relations. I need to fast forward to 1940s america. Things are beginning to move in a more positive direction. Notably the effect of the war and the contributions that africanamericans made during the war. In 1947, there was the desegregation of the armed forces, in the sports world Jackie Robinson integrated baseball in 1947. How are things beginning to shift in society in the late 1940s. You put your finger on something thats really important and thats the impact of the war. In terms of africanamericans serving in the war, the then coming home to this country and being mistreated including because of the segregation laws, being mistreated by virtue of the law but also experiencing terrible incidences of violence. And the juxtaposition of the soldiers having fought hitler and his creed with their treatment here in this country where they felt as if they were experiencing the same kind of ideology in this country was enough to make the soldiers vital in the struggle for civil rights. Other things that were happening were that africanamericans had mie grated in substantial numbers to the north which meant they were a force in politics. Which was important to changing a sense of where africanamericans belong in society, you mentioned the movement in force which was very important. All of which was to say that africanamericans were gaining stature and they also were beginning more so than ever to think in term of resisting these jim crow laws. So Thurgood Marshall is going to become an important player in this case later on in his life he becomes the first africanamerican appointed to the Supreme Court, but in 1940 what was he doing . He has founded the naacp Legal Defense and Educational Fund in order to launch a Legal Campaign against segregation. And he does so with a strategic brilliance that has come to be seen as decisive in the brown victory. He looks at Public Opinion. He sees the force of the the forces that tomiko has so well described. He knows the presidency is turning against segregation because of the cold war and its really bad. The russians are saying look at these hypocritical americans who are segregating. So truman desegregates the military and truman and eisenhower administrations both are supporting desegregation. But then Thurgood Marshall looks at the country as a whole and says theres still segregation in Public Schools, deeply intrenched, most states have it. He wants to start smaller, first by attacking segregation in Law School Admissions and graduate School Admissions and then after having won those victories attacking schools. He doesnt initially argue that plessy vs. Ferguson should beever turn. He attacks unequal facilities, where in sweatte t vs. Payton, where he said youre not even providing an education. A garage call watt school is forced to sit separately in school, hes humiliated. And that establishes press depps and then theres the big debate over whether plessy should be overturned and Public School segregation should be attack. Lets look at the map which will show you what the Public School systemed like in terms of segregation. The reddishpink areas, segregation in those states in south was required. The orchg states the orange states, it was locally determined. The blue states there were no segregation laws. And in the green states segregation was strictly pointed. That was the situation going into this defense, Thurgood Marshall using the legal system to approach segregation in schools. Were going to listen to Thurgood Marshall next talking about the legal system and how to use the courts to address this problem in america. The importance of law in determining the condition of the negro. He was emancipated by law and then enfranchised and seg regated by law. I submit the this shows the importance of striking down hostile laws and seeking the security of new, friendly laws, federal, state, and local. Other Civil Rights Activists would choose different methods to make the case. Thurgood marshall chose the law. Can you talk more about that . Sure. As jeff said, the strategy that was implemented by Thurgood Marshall and Charles Hamilton houston, the blueprint was, it was gradual. It was brilliant, ultimately. It also was daring and risky in the minds of others at that time who were equally committed to black freedom. People like asop randolph, ralph funt, and others at the aclu were skeptical of using the courts and the law oto achieve emancipation, social change for africanamericans. Partly this was because people like rab doff were interested in an interracial Labor Movement as the path to equality. There were those like ralph bunch who thought the courts are only as good as the personnel on the court. It could be expected that the judges would reflect the Racial Attitudes of the majority of the population. Therefore why think that the courts would be a good venue for vindicating africanamerican lives . Then there were those who those who said even if thurgood march that will and the Legal Defense fund would prevail, segregation could continue knot withstanding changes in the law which is perhaps the most profund criticism that could be made. All those critics were onto something thats the difference between constitutional law in theory, on the books an on the ground. Ultimately all these people were saying that individuals are the face of a law that people experience at an everyday basis. And they were skeptical that individuals would really come through in the way that marshall imagined. Next we learn how the story of the brown family made its way to a federal case. Before i do that, lets get some of your comments. Kathy on twitter asks, did brown overrule plessy . It was limited to education, did scotus say they were everruling it . Brown did overrule plessy. It was applied to schools an in subsequent cases the court applied it to desegregate swimming pools and other public facilities. The main question was, should plesy be overturn and brown overturned it. I have to say what the caller may be getting at is the way in which the opinion was written. And the fact that in the opinion, justice warren, writing for the court, used language saying, to the extent that theres anything in plessy inconsistent with what were say, then we pull back from the principle of plessy. It wasnt the kind of robust lang of overruling that you might see in other cases, and i think that was by design. It was a strategy for the court to try to be a consensus court. And theres another thats exactly right, there were other parts of the opinion that by failing clearly to say, segregation was wrong at the time of plessy and is wrong now because its stigmatizing and degrading, gave critics of brown a chance to resist it. First warren says, whatever may have been the constituent of Public Education at the time of the 14th amendment, now its really important and it has to be given to everyone on equal terms. But there was the famous footnote 11 in which the court, coming off the trial court cited the doll studies of Kenneth Clark that found that africanamerican children had lower selfesteem and were likely to choose white dolls than africanamerican dolls and this was controversial and led people resisting the decision to say it was based on bad social science. Today there are those, i think tomiko is right, that a clearer overtowrchg plesy may have harder to resist brown and made it harder for critics of that footnote today, including Justice Clarence thomas, who said its wrong to rely on sociological evidence. He would have preferred that they just say, the purpose was to denigrate and it is overturned. We have a caller. I want to thank you for a wonderful series, im enjoying this authoritiry. Now to my questions. My first question is, did the framers believe that segregation was a violation of equal protection of the laws . Given the fact that the Nations Capital was segregated . And with this in mind could the brown decision have been made using a religious interpretation . And the final question is, when the fifth amendment was passed, it didnt have an equal protection clause. In the bowling vs. Sharp case, could that case have been decided using that interpretation. Those are great questions. Read michael mcconnells great article, originalism in the deseg regaition decision, its in the virginia law review themselves best attempt to create an originalist defense of brown. There were those in congress in 1868, and john bingham was among them, who thought basic civil rights have to be available to all and wouldnt have allowed seg retbaition there. At the same time, felix linkletter had his law clerk write a long study, its clear that they did not think that schools had to be desegregated. People stood up in congress and said dont worry, this isnt going to apply to schools. So in order to say that schools are covered as an originalist matter you have to move to around 1875 when the congress was more liberal. This is a problem for originalists because if you think whats really important is what the framers said, its hard to justify brown. No one has done a great job explaining how it is originalist. Now from silver springs, maryland. Do you think that after hundreds of years of segregation and its adverse impact on black families, today and in the past, deserve some type of reparation through the wrusties system for black American Families . Thank you. Well that question has been debated by a lot of people and i think that there are certainly good arguments to that effect. I think most people come to the conclusion that there are two problems, one of which is politics. And the other of which is a concern about how one would actually assess the damages, one could convince the right people that reparations were appropriate, how would one actually go about figuring out what was owed . Now, one might say that, well, just give it a shot. But its a question thats been debated a lot. But really the problem is a political problem. And next is robert. Good evening, ladies and gentlemen. How are you doing . Yes, maam, im a vietnam veteran. And one of the things that has devastated me is first of all democracy is never lost anywhere on earth, its respected everywhere. Imperial colonialism has been driven out all over the world, just driven out of their lives because its so intolerable to people. Now i fought in a war where we were driving out that colonial mentality. Here we talk about brown vs. Topeka, kansas, and the education system. I mean, it is so we hold on to these stupid prejudices, we had a civil war, and yet my country, with all the beautiful persons it has, that is respected all over the world, we keep on holding on to what was driven out all over the world last century. People are tired of racism. Theyre tired of it everywhere on earth. Thank you. Thank you. First, i will say thank you for your service. The second thing i will say is that you make a fantastic point which is that the u. S. Has been able to export democracy to many places, and there are many nations that look up to us for our system, for constitutional system. Yet it is true, i would say, that there still is a chasm in many instances between what i call before law on the books and our aspirations as a country and as a people and everyday process. And partly thats reflection of the fact that of something i said before which is that, its something that frankly the court was concerned about at various times, and that is the ability of law to change peoples hearts, or everyday practices. In order for there to be social change as a way, and Race Relations in a way that you aspire to, rightfully, it really has to occur not only institutionally but interpersonally. So i want to show a piece of video next. This was used in a lower court case you described earlier, davis vs. The County School board of Prince Edward county here in virginia. Its interesting because it documents the differents between white and black schools. But whats interesting is both sides, the plaintiffs and defendants, used these pictures to say they supported their decision. Lets watch. These photographs are exhibits in the court case Dorothy Davis vs. The school board of Prince Edward county. The davis county was wrapped into the brown v. Board case before the Supreme Court. What were looking at here are the expeerors of the cools. Heres a white school in Prince Edward county, virginia. A brick, twostory structure, landscape, sidewalks. Here we have several buildings that compose a single cool, some of which are brick, some are tar paper, and its in a rural setting. Now we move inside to the classrooms. Here we have a white school in Prince Edward county. Notice that the students seem relatively comfortable while we take a look at africanamerican school, children are wearing coats. Theres a very large heater in the middle of the room. Showing just how cold it was in the rooms. Moving on to other parts of the buildings. Heres a home ec class in a white school. Much of the furniture and appliances are relatively new and modern. While in the africanamerican school, its a much different story. Its in a basement. The materials are much older. And also you can tell, much more worn. These exhibits were submitted by both the plaintiffs and the defendants, to show on the plaintiffs side that they were unequal, whereas on the defendants side they wanted to show that the facilities were just about equal. As were looking at those we have to talk about how one of those cases, the brown vs. Board of education of topeka, made its way into the federal courts. First of all, the brown in this case, is that linda brown we saw earlier . It is. She was the daughter of oliver brown, who was a when he was in topeka, he was a welder in the shops of the railroad. He was also a parttime preacher. In some of the pictures he was wearing a collar. He chose to wear his collar. It was very powerful. But he was approached by the naacp, he didnt seek them out. One reason the naacp and Thurgood Marshall chose the brown case and not the other cases is to avoid a dispute about whether the fa till silties were equal. The fact that the defendants in the Prince Georges County had the gall to say they were equal. 10 they went with the brown case. Did you hear what she said about her tears freezing up as she walked to school. The fact that the she had to walk six blocks to a schools but, then take the schools but to a segregated school, when there was another school seven blocks from her house which she could walk directly to, for her and her father was an indig any any an indignity and and outrage, and didnt depend on whether the facilities were equal or not. It was filed in 1951. The argues before the court, naacp there was a three judge panel. Judge huxman wrote the opinion. Is there anything about the opinion we should know about . The important aspect of that opinion, i would say, is that although the judges rejected the application of sweatt and mcclaren, which were two cases where the naacp had prevailed, it did include a finding of fact indicating that segregation of schools was harmful. Which was incredible. For the naacp its precisely the issue that was so controversial before the Supreme Court. So it was a decision that on the merits was adverse to the naacp. But in terms of that little finding of fact, that little nugget in there, that was very helpful. So could you explain then once again how it how the cases made it to the Supreme Court. Were the judges look for a case to decide this . What was the procedure for the five cases being consolidated and the court agreeing hear them. I dont know the court was looking for Something Like this. But there was disagreement among the lower courts which increases the odds theyll take them. Both president truman and eisenhowers administrations had filed briefs. I think to a certain extent the court felt it couldnt avoid it. But then something very dramatic happened. I dont know if this is the time to tell the story . Probably not. [laughter] lets take two more calls and then well talk about what the Supreme Court looked like in 1951 and 1952. Because this case was heard twice by two different courts. Well talk about the drama that caused that court to be different the Second Time Around. Gary is in tampa, florida. You are on the air. Welcome to our program. Thank you. While i am aware that there were impeach warren signs on southern highways, what im curious about was brown vs. Board of education in issue, say in the 1956 president ial campaign or the 1960 or 1964, etc. I dont remember reading about it, if itas a specific issue raised in debates. Im curious to hear some feedback. I dont know that i can talk about president ial debates in brown vs. Board of education but i can say it was a it was made a highly controversial topic in politics, especially in the south where there was deep resistance to brown. If it wasnt debated in formal terms it was certainly something that was talked about, oand warren was a focus focus, he was a person from whom wanted a pound of flesh. He was the representation of brown and the court in the sense that the court had been activists in a way that it had never been before. I think its clear that brown was an issue in politics generally. Im sure that at various moments it was an issue in president ial politics. Certainly it became an issue in president ial politics during the Nixon Campaign and later on after the court had actually started to enforce the decision. Youre on cspan, welcome to landmark cases. I want to say quickly, i hope cspan will expand on this program and do another 12 historic cases here in a little bit. My question was did justice hugo black, who had been a member of the k. K. K. And also the majority opinion in another case, redeem himself by voting to end School Segregation . Thats a great question. As you said, hugo black is he was appoint by roosevelt, soon after hes appointed it was reported he was in the klan. Theres an outcry. He gives a radio address. Check it out on youtube. He stands before the mic and said i did join the klan. I therefore resign. I never rejoined. This is all i have to say. Everybody went, youve answered all our questions. He was allowed to go on. But the outcry that led to protests around his house must have made a deep impression on him. He joined some path breaking opinions recognizing racial equality in criminal proceedings. And in the brown case hes the one southerner in the initial vote who is very keen to vote to strike down segregation. Some speculated it was to redeem the stain of his klan membership. Hes also the only southerner who says at the drches, theres going to be blood and people are going to die and we should announce a clear rule and get out of here because the court cannot solve this. He really is bringing his political wisdom to bear. Theres one final story thats interesting, walter dallinger, former solicitor general, was in court for hugo black. At one point he asked the justice, you know, so, justice black, whied did you join the klan. Theres a silence among other clerks. He said son, if you were running for senate in alabama in the 19 20s you joined the kl youd join the klan too i think he felt the feed to the need to redeem himself and perhaps he did with brown. Thats a nice segue into the question of what the court looked like in 1952. The chief justice was fred vincent. If you watched our series last week, he was a trumanappointee, sometimes described as a truman crony. He was joined by justices hugo black, harold bergman, tom clark, william douglas, Sherman Minton and stanley reid. So last week we heard that vincent did not do a very effective job at bringing coalitions together to a very, very divided court. In 1952, was it still very, very divided . Was he having a difficult time bringing together two groups of within the court that really didnt see eye to eye . I think that the basic problem with vincent is that his colleagues were did not respect him very much. And thus he does not have the Institutional Authority that was necessary to try to bring the justices together is what i would say. The decision i think is most important to perhaps talk about is the rivalry between jackson and frankfurter on the one hand and hugo black and douglas on the other. And what that represented in terms of how the justices thought about the constitution. Im sure jeffrey will have more to say about this. But the thing to say about the first combination is that there was a belief in judicial restraint. And a concern about the justices issuing holdings that were Legal Holdings and not political. So a lot of concern about how to actually deal with plessy. Plessy is a precedent that was on the books for a very long time and Justice Jackson and justice frankfurter were concerned about how to justify the decision toover rule plessy. Can i just pick up on that . Tomiko so well describes the issues on the court and they become manifest in the first conference over brown. So as tomiko says, the colleagues dont respect vincent. Frankfurter vince enthreatened to punch frankfurter in the nose, because he was a harvard professor who disrespected him. So it was four votes to strike down segregation. Black, douglas, minton and vernon. Three votes possibly to uphold it, vincent from kentucky. Reaves from kentucky. And tom clark from texas. And two who seem undecided. Franklin and jackson. Who are in favor of judicial restraint. They dont like segregation, theyre new deal democrats, but dent think the court should be stepping in. The initial vote is taken, looks like the segregation is going to win. Then before the court decided the case, vincent drops dead of a heart attack. On the funeral train on the way home from the funeral, frankfurter said this is the first indication ive ever had that there is a god. [laughter] but then the according to reargues the case, warren comes in. You probably want to wait to hear that. I want to get the attorneys on the docket for our viewers. Because theres a familiar name. The defendant attorneys including john davis who has been now three of our landmark cases, who was john davis and why was he at the helm in so many of these important cases . He was the president ial candidate, unsuccessful president ial candidate, turned one of the great appellate lawyers of his age. Courtly, silver haired, fit. You could call him a strict constructionist. He would say, i dont believe in a living constitution but i do think the constitution can adapt. But he felt he was defending southern traditions. For him its an easy case. He said the courts have repeatedly afirmed segregation. Plessy is on the books. Text doesnt forbid segregation. The original understanding aloud segregated schools. He thought hed win easily. For him, hes so invested in this case that after the oral argument, this is in richard cleugers great book which i want all our watchers to read, simple justice, gives the wonderful human story. At the end of the oral target, he had tears in his eyes. Thats how invested he was in maintaining segregation. And on the other side, Thurgood Marshall, i want to get some other names in here. Robert carter, part of the naacp legal team. Robinson, arguing a virginia case with us, reading. Jack greenberg argued part of the delaware case. George hayes. Jame nabrick. I want to show another video next. You talked about the impact of this social science experiment, the doll case. We have a video about the test and well talk more about its impact on the justices deciding this case. Lets watch. The doll test was integral to the brown v. Board of education because it clearly demonstrated that separate was not equal. And separate was not good. In fact, separate was an injustice. What were looking at here are the dolls that the doctors used in their doll studies. The doll tests were a series of studies that mamie clark and Kenneth Clark did to try to determine racial awareness in young children. With the implication being that in a segregated society, if children are aware of race, and the differences in race, and the differences in how different racial groups are treated, that it would impact how they felt about themselves. What they did that actually became very well known, part of the brown case, was they showed young children, black and white dolls and they would ask the children, show me the doll thats nice. Give me the dl thats the best. Give me the doll that looks like you. And more often than not, the black children showed the doll the nice doll was the white doll. The doll that was the best was the white doll. When they got to that last question, give me the doll that looks like you, thats when the children would pause and be a bit more confused or troubled, and dr. Clark would say, because they had said in many cases, this is the bad doll. This is the nice doll. And so remembering that they had said this is the bad doll, they now had to show the doll that looked like them and it was particularly difficult for them and some children, some black children, would do and some children chose the white doll that looked like them because couldnt embrace, after having said this is bad, not nice, they couldnt embrace it. How often does the court rely on social science in making a decision . Was this an unyawcial thing . Thats a good question. Justice brandeis in practice had introduced social science into lawyers practice. It was not the first time in brown vs. Board of education that the court relied on the social science. I think, though, that what made this different was first, over time, and im sure it was true then too, there was some question as to how reliable the doll studies were. It really was sort of a simple kind of experiment and one could raise questions about the methodology and all the things that we would think about today in terms of reliability of social science. It wasnt altogether new but on the other hand, the extent to which it ends up relying on the doll study and the fact that black children feel inferior because of segregation was, i think, profound. We left the story with the death of the chief justice. Was it because of the chief justices death that they decided to rehear the case or was it already going to be reheard . Thats an important question. Frankfurter had asked for a rehearing. Im not sure if he did before or after that request. Im not sure what el what role his death played. But the court couldnt come to a decision after the first hearing . They could have, they chose not to. They could have voted. Frankfurter had special insight into the south because he taught southern students at harvard law school. He said if we commission this paper about the original understanding of desegregation thatll give us time and then vincent die, frankfurter says, there is a god. Then earl warren is appointed by dwight eisenhower. Who is earl warren . Hes the former governor of california. Republican candidate for Vice President in 1948 when tom doohy ran. He was is a tall, blond, allamerican, moderate republican. This is someone who really made civil rights one of his callings in california and called for the people to be brought together. He does have one stain on his legacy, a very important stain. And that is supporting the japanese internment that you talked about so vividly in the other case. As governor in california, he supported that. It wasnt until in his memoir in 1976 that he expressed remorse for that and he wept, regretting what he had done. But he was a very, very moderate, this was a time when the Democratic Party had been the party of segregation. And the Republican Party was the party of lincoln. For warren to be in favor of civil rights was not up usual. He had wanted the first Supreme Court seat, eisenhower promised it to him. He said vincent dies, warren says give me the seat. Eisenhower said i didnt say id make you chief justice. The justice, warren, black, frankfurter, johnson, reed. What was the length of oral arguments the Second Time Around . Did they differ very much in the arguments made during the first time . The oral arguments the Second Time Around were focused on these questions about original intent. And the trouble there, jeffrey already explained what the problems were. The framers of the 14th amendment were not social integrationists in the way that we think of today. So the question that was put before the lawyers, the naacp lawyers struggled a bit, and the problem was that the answer was not going to be found in the questions that had been put before the lawyers and the court. The seminal question before the court in this case, does racial segregation in Public Schools deny children equal protection under the laws. I would like to have you tell a story. The chief justice decided for this decision to work it had to be unanimous. How did he get to unanimity . This is a riveting story. One of the great examples of judicial statesmanship in american constitutional history. So the arguments are heard. As tomiko so well described. The justices have their vote in a priefs conference. Warren says this is an easy case. This is an easy case. Its obvious that segregation has the intent and purpose and effect of degrading africanamericans. They take a vote. Its not entirely clear what the first vote was, but its at least 63. Maybe 72. There are two major holdouts. Robert jackson, the great advocate of judicial restraint, as tomiko says, and stanley reed, from kentucky, and ar dent segregationallist. Jackson is in the hospital. Woren visits him and says its important for the court that this be unanimous. Jackson who cant see in the original understanding or text of the precedent or tradition a reason for brown, nevertheless is a new dealer who thinks that its important and hes going to join. And then finally it comes down to the last segregationist. Warren goes to visit reed in his chambers. He says its going to look bad for the court and bad for you if this is an 81 decision with the one dissenter being a segregationist from the south. Youve got to make it unanimous. Reed, who is an institutionalist and cares about the court as an institution agrees to make it unanimous. Warren reads the decision to a spellbound courtroom. He said, the question is does segregation violate the 14th amendment . We believe it does. Thurgood marshall looks up at stanley reed. He cannot believe this ar dent seg regailingsallist segregationallist voted for this. He says you voted for its a real testament to this. Warrens statesmanship to get this unaniecision. Let me read part of the decision. We conclude that in the field of Public Education, the doctrine of separate but equal has no place. Separate education facilities are inherently unequal. Therefore we hold thathe plaintiff and others similarly situated for whom the actions have been brought are, by reason of the segregation complaint, deprived of the equal protection of the laws guaranteed by the 14th amendment. Im going to let that stand and take some more calls. Our time is evab waiting quickly. Christopher, watching in brooklyn, new york. Youre on. So majority of white people were against segregation. And i actually, i saw your preview of the baby situation. The white baby looks like an angel and the black baby looks like an ape. And death to the were going to move on from here. Palestine, texas, youre on the air. Go ahead, please. Dennis. Youre on. Last try for dennis. Were going to move. All right. On to ron, watching us in east chicago, indiana. Good evening. I want to real quickly say wow, this program and this discussion, this show is so try tall for our survival. Kudos ancon garagelations to your programs. So vital for the survival of america. My question is, what do we have to do, what do we need to do to keep it going, this is a discussion that has to keep going . Our neighborhoods have been robbed of our history and you guys are doing a phenomenal job, whether people agree with you or disagree with you, weave got to keep it going. Especially during this president ial election. I love you, i wanted you to know that. Thank you very much. Thank you. Very kind of you. Appreciate the good comments there before we leave this i want to get one other thing on the record which is, you mentioned earlier the cold war and in fact, at least in the first cates, the government first case, the government filed an amicus brief about the United States reputation being damaged by segregation. Often we hear the court saying its insulated from Public Opinion. Yet this is one of several cases in this landmark series where wars were going on or in this case the cold war where there ia determined impact on the outcome, the justices realization about the pl ticks or policy impacts of what theyre reviewing. Help people understand how the Court Functions and what it says is an insulated study of the law environment but we keep seeing instances wherele to pick where politics does impact the decision. Its so important to focus on this. We think of brown as a countermajoritarian decision, an unpopular decision, at a time when most of the country was in favor of segregation because of the map you showed earlier. But in fact, 54 of the country supported desegregation at the time brown came down. It was an International Embarrassment after world war ii. It was derided as Something Worthy of defeating nazis to have this kind of justice of segregation and inferiority. Opinion was shifting quickly. It was the fact that the senate was controlled by a group of southerners who refused to bring desegregation bills to the floor that in some sense was thwarting Public Opinion and the fact that the truman and eisenhower administration,izen hawr was no big fan of quick desegregation. But his administration does support striking down desegregation. For all these reason, the court is aware of what the congress is thwarted from doing, its aware of what the executive is trying to do, it knows about jack ry robinson. In that sense, brown far from thwarting the general rules that the court has tended over time to follow Public Opinion, surprisingly supports it. So to the mico and then the macro. We listen to linda brown about her familys reaction when they heard the decision. Time stood still as the highest court of the land pondered over brown vs. Board of education. Until an afternoon in may of 1954 when i was at school, my father hat work, and my mother at home doing the family ironing and listening to the radio. At 12 5 p. M. , the announce 12 52 p. M. , the announcement came. The courts decision on ending segregation was unanimous. That evening in our home there was much rejoicing. I remember seeing tears of joy in the eyes of my father as he embraced this, repeating, thanks be unto god. So we move from linda brown to societal changes. What was the reaction in the country at the brown decision . Thurgood marshall was treated as mr. Civil rights, as a hero, as an icon. There were many africanamericans who were very excited about the decision. Very hopeful. About the decision. The court was viewed over time as a hero, a protector of minorities because of the decision. The country, to a lot of people, seemed to be moving in the right direction. On the other hand, there were those who thought the decision was outrageous. That it was judicial activism. That the court has not followed the law. Hadnt been faithful to its imperative as an institution, that the court had put itself in the position of being a legislature. There was a lot of pushback against brown vs. Board of education. Some of that pushback occurred in the congress of the United States and id like to have you talk a little bit about the massive resistance movement. Weve got two statements, one from a member of the house, one from a member of the senate, who were involved in this. First is John Bell Williams who made a house floor speech on may 17, 1954. He said among other tng the time is at hand when states must reassert their Constitutional Rights or suffer their own destruction. If states are to preserve their sovereignties, if they areo preserve the constitution, they must declarehe black monday decision the brown decision to be illegal and invalid and of no force and effect within the territorial limits of their respective jurisdictions. Then senator harry bird of virginia, who organized the massive resistance movement, says, the unanimous decision of the supreme cou t abolish segregation Public Education is not only sweeping, excuse me, but will bring implications and dangers of the greatest conseqnce. It is the most serious blow that has yet been struck against the rights of the states in a matter of vitally affecting their authority and welfare. They authored whats called the southern manifesto and it was signed by 19 senators and more than 80 representatives, all of them southern democrats. What was the effect of this . The effect of that which you summarized so vividly, can you imagine calling it black monday and signing this southern manifesto . Was precisely to encourage Southern States to resist in the ways that the man tes toe demanded. And the resistance, as tom kirvetion o suggested, was powerful. People across the south set up private academies to educate their kids. In 1959, Prince Edward county, virginia, closed its entire Public School system rather than obey a court order to integrate. And it was closed for five years. The Public Schools in South Carolina were closed for a great period of time. Norfolk, charlottesville, warren county, schools were all closed by state officials. And then finally, the resistance culminated in this next dramatic to allowing integration is so great that president eisenhower has to call in the National Guard. We can talk about that great case if you like. Susan let me take some calls. This is dennis in palestine, texas. You are on the air. Hi, i just want to say Jeffrey Rosen is correct that richard krogers Civil Justice is fantastic work and was an epiphany for this southern boy who had only heard one part of the argument for most of my childhood and even into college. I wanted to ask about a law clerk for Justice Jackson by the name of William Rehnquist who, at his confirmation in 1971, the issue came up that he had in fact written a dissent for Justice Jackson in the brown case when it came before the warren court, and he said that they were just covering their bets and he did not really feel that way. I just wondered if either of your guests have checked to see the veracity of justice rehnquists comments. At his confirmation some 20 years later. Jeffrey you summarize it very well. It was an important controversy. The memo was quite vivid. The law clerk said basically, the fact is that southerners dont like black people and will never admit them and the truth is, i believe that plessy versus ferguson was good law. As you say, chief justice rehnquist, throughout his career maintained he had been writing in jacksons voice. That jackson had asked him to express his own thoughts because jackson was undecided. All we know is that Justice Jacksons secretary disputed rehnquists account and said that he had never asked for competing opinions to be written in his voice and, according to her, rehnquist was expressing his own views. I think that is the most direct evidence we have on the point. Susan maurice is in memphis. You are on. Good evening to all of you. The 14th amendment does not apply to the federal government. Although i think we feel that certain fundamental projections are so important that they appear twice so that the fifth and 14th amendments each have a due process clause. The equal protection of the law is a more explicit safeguard of prohibited unfairness than due process of law. But i would not assert that that implies the two are always interchangeable phrases. How do you feel about the assertion that the concepts of equal protection and due process are not mutually exclusive . Tomiko well, i think you are referring to the controversy over bowling versus sharp where the court reads an equal protection component into the fifth amendment. There is a lot of discussion about exactly how the court does this, how the court explains it. I dont think the court goes very far toward an explanation. The fact of the matter is that there was not going to be any way that you would get one holding in the four cases involving the state and a different holding in the case involving the district of columbia, therefore, we get this equal protection component read into the due process clause. As to how appropriate that was, i tend to think that there is an understanding of due process that makes it a very robust concept. The due process clause is the basis the court ends up using for fundamental rights analysis. So i would say that, you know, they are not the same, but there is an appropriateness to reading that component, the equal protection component into the fifth amendment under those circumstances. Jeffrey absolutely right. If i could just add one quick Justice Harland, who wrote that dissent in plessy, believed that exemption from class legislation or unfriendly legislation based on race was itself a privilege and immunity of citizenship and the court read the clause out of the 14th amendment as you will know if you watched the excellent slaughterhouse episode. So that argument is no longer available but for some of the framers of the constitution, it might have been a close case. Susan a quick comment to mr. Putnam on twitter. What does the brown v. Board decision due to the legacy of the justice . Jeffrey it vindicated him as one of the great prophets of the 19th century. Susan next is chuck. You are on. Yes, we can hear you, go ahead. Hello . Susan go ahead. Although you say that brown reversed the plessy decision, isnt it true that railroads continued to ignore the brown decision and continued segregating Passenger Rail cars until the Civil Rights Act . Tomiko it is not just railroads, it is all kinds of Public Institutions that dont exactly comply with brown. The letter of brown forthwith. So it takes a very long time as you say for brown to actually be implemented. As jeffrey pointed out, there is a cooper versus aaron decision where the court speaks to the issue of School Desegregation. The problem is that unless there is, in the early years after brown if there is not these dramatic instances of resistance to the decision, then the School Districts are able to proceed in whatever way they see fit. For a very long time. It is not until the mid, really the late 1960s, after the Civil Rights Act, that brown is implemented in any substantial way. Susan our next piece of video is Thurgood Marshall, giving an interview to mike wallace on cbs on president eisenhower and what he thought of the president s decision and response to the desegregation of schools. This was taped on april 16, 1957. Lets watch. [video clip] i do not think that president eisenhower has done anywhere near what he could have done. I wonder whether it is too late. I dont think it is too late. I think the president should have sharply, after the decisions, at least by now, have gotten on a Television Network or radio and spoken as the chief executive of this government to the good people of the south, urging them to support the decision of the Supreme Court, as the law of the land, whether they believed in it or not. And, to use the full influence of his position as president to bring about peaceful solution to this problem. I think he was obliged to do that and i think that his failure to do so does not help us at all, especially when we realized that as a result of the failure of the good forces to take over, we have allowed other forces like the White Citizens Councils and the klan to threaten and intimidate good people. Moral leadership should come from the Top Executive of the government, it is his responsibility. Susan five months after that decision, president eisenhower sent federal troops in to enforce the desegregation in little rock, arkansas. Walk us through president eisenhowers legacy. Jeffrey cooper v. Aaron is as if brown was not dramatic enough cooper v. Aaron is also incredibly dramatic. You have a court order to integrate central high school. You have students who are being turned away by mobs. You have the governor standing at the schoolhouse door saying he is never going to allow the students to come in and you have president eisenhowers decision to send the National Guard to ensure the admission of these schoolkids. And then you have a Supreme Court which is so afraid that its rule to integrate the schools will not be obeyed, because they are not sure what eisenhower will do, that each of the justices signs the decision in ink, on the decision itself. This is never done before all of the justices to prove their unanimity sign it. It seems like a show of strength but it is a sign that they are scared to death that he is not going to follow through. There is language of judicial supremacy that almost overstates the case. This court is supreme in its interpretation of the constitution, seeming to suggest that the president or congress has no role. That was not what John Marshall asserted. Basically, these are nine men, and thats what they were then, who literally dont know what the president will do. The fact that he did send the troops, and despite his grumbling about earl warren, did ultimately say the Supreme Court has made the decision, i have to enforce the law, helps mitigate eisenhowers legacy. They are interesting revisionist histories that say behind the scenes, eisenhower was aware of shifting politics but he was more supportive of desegregation than he appeared in public. Susan i want to show one more video. This is actually earl warren taped in 1969 in an interview. He is talking about his frustration to the resistance against the brown decision. Your thoughts on this. [video clip] in some parts of the country, one couldnt help being impatient when they would see the orders of the court flouted and justice not obeyed in any sense of the word, and where illegal things were changed in form but not in substance and carried on, of course, one feels frustrated at that. But when the American People as a whole recognize that we have, in the past, been wrong in depriving certain minorities of their Constitutional Rights, when we make the decision to say that they will in the future have these rights, then i think were are on the way to solving most of our domestic problems. Susan well, a couple of things to say. First of all, i agree that there is a revisionist scholarship on eisenhower that puts a different spin on his views. However, there is cooper versus aaron, where he sent in the guard. Those are important. At the same time, i think the problem for eisenhower as it relates to School Desegregation is there is a sense that he is supportive of states rights and that is what Thurgood Marshall is talking about. There is a sense that he is not really supportive of the principle of desegregation as a personal matter. So there is a story about how, at a white house dinner, he was overheard saying that the people of the south who were resistant were not bad people, they simply were concerned about the little white girls sitting beside overgrown black boys in the classroom. I do think there was not that personal commitment to brown versus board of education and he, in that sense, was on the wrong side of history. Earl warren, on the other hand also a politician, and not a man who certainly when he was appointed was respected as a great legal thinker, his skills were political. He understood that having the office of the presidency behind the Supreme Court, having all three branches acting in the same way as we had after 1964 was really the only way that the decision would be enforced. Susan let me take a call from ken in new jersey. You are on. Caller hi, thank you. I have two questions. Number one, it is my understanding that despite what you said earlier, that eisenhower said that appointing warren to the Supreme Court was one of his worst decisions. It is my understanding that at the time that he appointed warren, he intentionally appointed him because of this case and he wanted that to have that kind of a decision. I would like to hear your comments on that. And secondly, it is also my understanding that when eisenhower sent troops into arkansas, it was also the first time that the president , that the executive has stood behind the Supreme Court, especially since president jackson in 1828. And i would like to hear your comments. Jeffrey i love the fact that you bring up jackson, and he did famously say in the cherokee indians case, he said perhaps apocryphally, John Marshall has made his decision, now let him enforce it, confirming hamiltons adage that the Supreme Court has neither person nor sword. I had not heard that eisenhower appointed warren because he wanted a positive decision. Brown, the fact that he resisted the appointment at all seems to call that into question. I agree with tomikos counter that despite revisionism, on the whole, he was on the wrong side. I would be interested if any viewers have a cite for that, please tweet it in. I have not heard that particular story. Susan we have 10 minutes to talk about the 60 years of legacy, which is impossible to do. We want to start with its legal lecy. We have four citations of brown, in 1964, reyldversus sims, in 1967, loving versus virginia, which was racial integration in marriages, San Antonio Independent School district versus rodriguez in 1973, and planned parenthood v. Casey in 1992. If you look at its legal legacy, what has it left the country with from that perspective . Tomiko the most important legal legacy of brown, i think goes back to the point that it established the idea that the Supreme Court can be interventionist to protect individual rights in the most profound way. It was cited in various cases where the issue wasnt school on that point. I will also say that brown has a mixed legacy, in part because it can be interpreted in so many ways. So you cite san antonio versus rodriguez. There is a discussion of that decision by Justice Powell who writes about the case which holds that education is not a fundamental right, that is inconsistent with Thurgood Marshall and a lot of peoples understandings of the consequences of brown versus the board of education. So, when it came to the question of what it meant for education itself, brown was not Persuasive Authority on that point. And there are other examples one could point to. Susan when talking about the integration of schools, bob hepburn on twitter, so far you have not mentioned the hedge from the Supreme Court, using the phrase, integrating with all deliberate speed, so how did this come into play . How instructive was the court in actual rollout of desegregation . Jeffrey thank you for noting that. Its really important. The language came from Felix Frankfurter who always had something up his sleeve. He says, i know from English Common law and principles of equity, that when you are not sure that a decree will be immediately enforced, you can give the parties a little bit of discretion and tell them they dont have to do it immediately. This principle was resisted by hugo black, who actually unlike frankfurter who said he taught southern law students, actually was from the south. Black said, you give the south any room, it is going to be worse. Frankfurter put in that language and there was lots of other hedges in that decision. Giving weight to public and private considerations, they should make a prompt and reasonable start, the courts can consider problems related to administration, but the court did say the vitality of the constitutional principles cannot be allowed to yield simply because of disagreement with them. The bottom line is, with all deliberate speed was a huge pass to the south, basically saying, go ahead, we are not going to be on you if you resist. As tomiko absolutely essential point that she made, it was not until not only the passage of the Civil Rights Act, in 1964, but the guidelines in the department of health and education and welfare just a few years later that threatened to withhold federal funding to schools that did not desegregate, only then did meaningful desegregation occur, so it took more than one decade after brown actually to achieve its promise. Susan the court seems to continue to struggle with at least at the University Level with affirmative action cases, another one scheduled for this term. What has been the societal legacy of brown versus board of education . Tomiko another big question. I would point to parents involved which was a case about k12 education and whether School Districts could voluntarily desegregate. There, the court struck down the policy at issue, which, in louisville, had been adopted, a desegregation policy, adopted after the School System was no longer officially under court order, by consensus, large consensus of the community, it wanted to continue with its Integration Program in schools. It was considered a Model Community for integration. And the court impeded that, saying that the principles established in the affirmative action cases regarding diversity really dont apply in the k12 context. And then, as you mentioned, there is the continuing controversy over affirmative action. The court is going to hear the fisher case again. It will rule on the merits and it doesnt look good to proponents of affirmative action. And it may not be a sweeping holding but the nature of the conversation that the court is having is really goes back to that word some would say of judicial supremacy. The court, in the affirmative action context, is saying that it needs to be satisfied that there arent raceconscious alternatives to these raceconscious policies, and there are university officials, educational officials who would argue that they need to be in that position of exercising discretion about composing their student bodies. Susan here is a little bit of chief Justice John Roberts and the parents involved decision, it was heard in 2007. Versus seattle. Some of what he wrote is this before brown children wer where they could go to school based on the color of their skin. Districts have not carry the heavy burden of densating that we should allow this for different reasons. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. Jeffrey there is as tomiko so well says a huge debate right now that the meaning of brown. Is it a ban on racial classifications, as chief Justice Roberts seems to suggest . Or is it a ban on racial subordination . Does it demand blindness or colorblindness . Or just prohibit casteaffirming laws that degrade . The court is divided on this question. The division can be found in the brown opinion and in brown two, which did not resolve whether it was demanding equality of opportunity, the end to formal segregation, or equality of results actual integration. This continues to this day. All i can say is, with cspan, the national Constitution Center will be hosting a series of debates and conversations on all of these questions, including a great one on the fisher case next week. With our partners in intelligence square. The fact that even years after brown, 60 years after brown, we still havent resolved its central meaning suggests that the meaning of the reconstruction amendments continues to be contested and debated. Susan my last piece of video is Thurgood Marshall. Marshall was the architect of the naacps Legal Defense strategy, which decided to attack the segregation of schools as a process to change in society. Thurgood marshall as you know went on to be appointed to the Supreme Court as the first africanamerican justice, serving from 19671991. Here is Justice Marshall in 1988 at the National Bar Association meeting. He is accepting an award, and he talked a bit about the state of Race Relations postbrown. [video clip] Justice Marshall i dont care about the constitution alone or the declaration of independence or all of the books together. It is not that important. What is important is the goal toward which you are moving, the goal that is the basis of true democracy, which is over and above the law, and is something that wont happen, but you must pray for it, and work for it. And that goal is very simple. That goal is, that if a child, a negro child, is born to a black mother in a state like mississippi or any other state like that, born to the dumbest, poorest, sharecropper, is by merely drawing first breath in a democracy, there and without any more, is born with the exact same rights as a similar child born to a white parent of the wealthiest person in the United States. No, it is not true. [applause] of course, it is not true. It never will be true. But i challenge anybody to take the position that that is not the goal that we should be shooting for and stop talking about how far we have come and Start Talking about how close we are. Susan and with that thought, we have about a minute left for your comments. On the brown v board decision in 1964 and really what its significance has been on american society. Tomiko it is a decision that was important in constitutional law. It is generally considered the most important constitutional law case of the 20th century. And that is rightly so. It is a paradox though. Because of all the things we have talked about, brown was not considered to be a conlaw case that was actually based in law. Right . There are many questions about what the court uses to make its decision, but over time, it is accepted as the right principle. The court did the right thing, that is important. It sets a high bar, High Aspirations for us. And as Justice Marshall said, so many times, we are still climbing toward its goal. Jeffrey jefferson and the declaration of independence promised that all men are created equal, yet he owned slaves. It took lincolns new birth of freedom at gettysburg to make the promise of declaration something closer to a reality. The civil war amendments, the 13th, 14th and 15th amendments tried to enshrine that in the constitution but it took one century after that for brown to begin to make the promise of the declaration and the reconstruction amendments a reality, but we certainly have not come close to achieving that promise for the reasons we have been discussing. Susan our thanks to tomiko brownnagin and Jeffrey Rosen for being with us for this installment of landmark cases, looking at the 1954 decision of brown versus the board of education. Thank you for being part of our audience. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] most people come here to make a better life if not for them for their kids. My italian grandparents never spoke english. I never had a conversation with them and yet they made america great. Tonight, a debate over the question, should the u. S. Shut its borders . 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