Transcripts For CSPAN3 Supreme Court Landmark Case Brown V. Board Of Education 20170809

Arizona. We hear arguments number 18 roe against wade. Quite often in many of our most famous decisions are ones that the court took that were quite unpopular. Lets go through a few cases that illustrate very dramatically and visually what it means to live in a society of 310 million different people who have helped stick together because they believe in a rule of law. Good evening and welcome to landmark cases. Were about twothirds of the way through our 12week series looking at Historic Supreme Court decisions. Tonights a 1954 case of School Segregation, brown v. Board of education. And were going to begin this evening by listening to linda brown on the roots of this case. My memory of brown began in the fall of 1950, in the quiet kansas city of topeka, where a mildmannered black man took his plump 7yearold daughter by the hand and walked briskly four blocks from their home to the allwhite school and tired without success to enroll his child. That trying to enroll their children in schools nearest to their home was long overdue. Many were the evenings my father would arrive home to find my mother upset because i had to take a walk, just like she did many years before and catch a school bus and be bussed some two miles across town. I can remember that walk. I could only make half of it some days, because the cold would get too bitter for a small child to bear. I can still remember taking that bitter walk and the terrible cold that would cause my tears to freeze upon my face. Thats linda brown talking about her experience as a school child in topeka, kansas and how he story led her to the Supreme Court and one of the landmark decisions. Tonight, for the next 90 minutes, well learn more about that case, how it came to the court, and what its implications are. And let me introduce you to our two guests at the table that will help us do that. Tomika brownnaggin is a professor at Harvard Law School and shes an author. And Jeffrey Rosen is at the table tonight, hes the president and ceo has been our partner for this entire series, which we thank you for. And hes the author of numerous books on the Supreme Court, including the Supreme Court, the personalities and rivalries that defined america. Its nice to have you at the table tonight, finally. Its wonderful to be here and congratulations on this great series. Your team has such done such a great job. Its really a thrill. Thank you for your help. Lets talk very big picture on the issue in this case. What was really the heart of what was decided here . Well, the Supreme Court in this case considered the question of whether statemandated segregation in schools is constitutional under the 14th amendment. And thus it was an opportunity for the court to reconsider plessey versus ferguson, which was the 1896 case, in which it had case, which found that segregation on rail cars was within the constitution. And jeff rosen why did this become a landmark decision . Because by overturning plessey, as tameka so well said, the court faced the disdain of this decision and fulfilled the promise of the Reconstruction Amendments. The 14th amendment to the constitution, passed after the civil war, which turns 150 next year, was designed to ensure equality of civil rights. And Justin Harlan, his dissent in plessey versus ferguson thought it was obvious that a fundamental right like the right to travel on railroads was a fundamental civil right. But the basic insight that the Court Finally recognized was that separate but equal is inherently unequal, and to separate people because of their race is stigmatizing and degrading. The fact that it took almost 100 years to recognize what was obvious to anyone in the south as Justin Harlan said in plessey, Justin Harlan said, everyone knows that the purpose of segregation was to degrade africanamericans and the fact that it took so long for the court and the country to recognize that is what made brown such a landmark in the 20th century. So it is known in our society, simply, as brown, but one of those little factoids that people who are learning about this along with us would be surprised, perhaps, is that brown isnt one case, but its really five cases. Explain how that works, the consolidation. So there were a bunch of them. And i have to have my cheat sheet, actually, to get them out, because theyre not well known today, but one of them involved the d. C. Government involving whether the federal government, as well as states, could have separate schools. And to decide that case, it was called bowling versus sharp. The court couldnt use the equal protection clause, because that only buys the states. Instead, it had to use, and im waiting for my chance to bring out my National Constitution center, pocket constitution, it had to use the fifth amendment to the constitution, which prevents congress from depriving any person of due process of law, and the court read into that clause an equal protection component, thats a technical doctrine called reverse in corporation, but basically they said it would be unthinkable that if the states cant discriminate, then d. C. Can. But there were a bunch of other very, sbrergs cases incluintere, including one that was prompted by protests, by the plaintiffs. Here they are. The only win was a case called gephardt versus belton out of delaware. That time the trial court did order that africanamericans be admitted to the segregated schools, the davis decision came out of virginia, which challenged segregation in Prince Edwards county. And finally, there was a case call briggs versus eliot, from South Carolina, which was the first of the cases. But it was 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 specific case, and then give that case its title. Well, i think that in this circumstance, it can consolidon these cases because they raised the same issue with the exception of bowling versus sherrod, which is what jeff spoke about. They were consolidated for convenience and because it made sense to consolidate them and consider this issue, as it was raised in these several states. The naccp strategy involved filing cases in the states where the issues were most stark, as to the reality that they were able to show in brown and that was that separate was never truly equal. That is what the court decided. That Justice Browns decision in plessey, where he said that if there is a harm of separation, of segregation, its only because blacks are putting that construction on it. In brown, the court rightly recognized that really, the problem with segregation in schools and segregation generally, the court went on to stipulate, was that it was a stigma. It was a sign that blacks were considered inferior. One of the things that has made this whole series work for us is your participation. And there are several ways that you can do that. You can phone us and well go to calls in about another 20 minutes. Here are the fuphone numbers. If you begin dialing now, you can get into the queue. 2027488901. Please be careful when youre dialing those numbers, as well. Mountain and pacific time zones. You can also send us a tweet. If you do, make sure you use the hashtag landmark cases. Well see it in our twitter stream here and well mabke sur comments are in. And finally, theres a discussion already underway on our facebook page. Cspan is the facebook site. We have this video posted and theres comments coming in under that. You can be part of that discussion, as well. We look forward to what you have to say about this case and to hear your questions about it. Were going to spend a little bit more time on the history that goes into this case. I do want to learn a little bit more about plessey versus ferguson, 1896. You mentioned it was a transportation case. It was. And this was a time when jim crow was not yet up and running, so a allow requiring segregation was not welcomed universally by the railroads themselves. It was challenged as a violation of the equal protections law, and as tameka well said, Justice Brown held for the court, as long as the cars are equal, theres no problem, because equality is all facilities is all the constitution roiequires and any information of inferiority is the problem of africanamericans. Justice john marshal harlan, one of the greatest dissents of the 19th century, this is a kentucky former slave state. Hes a knownothing, turned abolitionist. He said, i would rather be right than be consistent. Hes the one when hes writing the decision, dissenting from the courts decision to strike down the Civil Rights Act of 1875, his wife puts the pen that chief justice tawny had used to write the dread scott decision and realizes this is the pen that suddenly has writers block. The words fle. This is one of the great defenders of the promises of the Reconstruction Amendments. And in miss spectacular dissent, he basically says that everyone knows that the real purpose of the separation was not for the convenience of both parties, but to degrade and stigmatize africanamericans. And then he said, in respect to civil rights, the constitution neither knows or tolerates classes among citizens. The constitution is color blind. There is no cast here. But theres an odd preface to his decision, which is jarring by modern terms. He says, the white race at the moment is preeminent, so it will continue to be, if it maintains its traditions. But in respect to civil rights, there is no the constitution is color blooiind. He was continuing this distinction that lincoln and other reconstruction people at the time maintained between civil and social rights. He was saying, you have to give civil rights to everyone, but were not mandating social equalities. That has a uncomfortable tone for us. I think thats right. Its almost as if what Justice Harlan is saying is that its overkill to dirty up the constitution with these kinds 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. So a question can i say one thing on this, because its so important and interesting. The big this dissent is so important that Thurgood Marshal reads it before he argues brown v. Board of education. Hes inspired by harlans dissent. But as we know, nowadays, the huge question is whether harlan said the constitution is color blind, did he mean that all racial classifications are impermissible, and its saying something now or is it just with respect to civil rights, fundamental rights that they cant racial classifications. Is he saying only classifications that affirm a cast system. And this is the big debate over affirmative action. Is really the entire history of everything the equal protection clause means is set up in this dissent. That actually gives rise to the next question, which is the legacy of that decision. And its so hard to compress the next 50 years into a couple of sentences. But we really must, for time. Did the plessey versus ferguson, which legalized separate but equal, it was a transportation case, it changed society. Did it give rise to the jim crow laws or did it happen anyway . Thats a very hard question, but its probable that after 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 little to actually resist jim crow as it arose. So i wouldnt say i would be very interested if tameka agr disagrees, it certainly could have come out the other way. I would not ascribe to the Supreme Court that kind of power at that time. It was pretty late in the day. The politics of the situation that jeff described 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, thus 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. So i need to fast forward to 1940s america, where things are actually starting 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 desegregation the desegregation, in the sports world, Jackie Robinson integrated baseball in 1947. So how are things beginning to shift in society in the 1940s. Well, you put your finger on something thats really important. That is the impact of the war, in terms of africanamericans serving in the war. But then, coming home to this country and being mistreated, including because of the segregation laws, by virtue of a law, but also experiencing terrible incidents 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 we are 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 migrated in substantial numbers to the north, which meant that they were a force in politics, which was important to changing a sense of where africanamericans belong in society. You mentioned the movements in sports, which was very important. All of which was to say that fri africanamericans were gaining stature and they also were beginning more so than ever to think in terms of resisting the jim crow laws. So Thurgood Marshal is going to become an important player in this case. Later on, he becomes the first africanamerican appointed to the Supreme Court. But in 1940, what was he doing . He has finded the nasp Legal Defense fund in order to launch a fund dpens 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 forces that tameka has so well described. He knows that the presidency is turning against segregation, because of the cold war and its really bad, the russians are saying, look, if these hypocritical americans who are segregating, and so truman desegregates the military, and the truman and eisenhower administrations both are supporting desegregation, but then Thurgood Marshal looks at the country as a whole and says, theres still segregation in Public Schools is deeply entrenched. A majority of 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 plessey versus ferguson should be overturned. Instead, he says he attacks unequal facilities in the texas case, sweat versus painter, where he says hes not even providing an education to africanamericans, and this separate law school youve set up is pay tently unequal, in the mclaughlin case, hes literally demeaned my having to sit separately within the school. Hes humiliated, and that is clearly unequal, after having established those two precedents, finally theres the big debate about whether to recall that plessey had been overturned and Public School segregation had been attacked. Lets take a look at this map, which will show you what the Public School system looked like in terms of segregation in the early 1950s. You look on your screen, the reddish pink areas, segregation in those states in the south was required. The orange states, segregation locally determined. The blue states, no segregation laws, and the green states in the northeast and midwest, segregation was strictly prohibited. So that was the situation going into this defense of by Thurgood Marshal of using, rather, the legal system to approach segregation in schools. And thats really at the heart of this case. Were going to listen to Thurgood Marshal next talking about the legal system and his thoughts on how to use the courts to address this problem in america. The importance of law and determining the condition of the negro. He was emancipated by law. And then his franchise and segregated by law. And i submit to history of the negro in this country demonstrates the importance of getting rid of 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 marshal chose the law. Can you talk more about that . Sure. Well, as jeff said, the strategy that was implemented by Thurgood Marshal and charles ham illtilt houston, it was daring and risky in the minds of others at that time, who were equally committed to black freedom. People like a. Phillip randolph, ralph bunch, baldwin at the aclu were skeptical of using the courts and the law to achieve emancipation, social change for africanamericans. Partly, this was because people like a. Phillip randolph were interested in an interracial labor movement, as the path to equality. There were those like ralph bunch, who thought that while the courts are only as good as the personnel on the court. And it can 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 rights . And then there were those who said that even if Thurgood Marshal and the Legal Defense fund were able to prevail, segregation excuse me, discrimination could continue, notwithstanding the change in the law, which is perhaps the most profound criticism that could be made. And i have to say, that all of those critics really were on to sympathetic. And thats really the difference between constitutional law in theory and on the books and on the ground. Ultimately, all of these people were saying that individuals are the face of the law that people experience on an everyday basis. And they were skeptical that individuals would really come through in the way that marshal imagined. Next, well learn how the story of the brown family made its way to a federal course. But before we do that, lets start mixing in your comments. First, jeff rosen, is kathy baylen on twitter wh, who asks,d brown actually overrule plessey. Did scotus ever say they were overruling it . Brown did overrule plessey. It was applied to schools and then in subsequent cases, the court applied it to desegregate swimming pools and other public facilities and so forth. But the main question was, should plessey be overturned and brown overturned. I will say, with i think 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 plessey, inconsistent with what were saying, then we pull what we pull back from the be a consensus court. And theres another thats exactly right. And 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 the chance to resist, first warren says whatever may have been the state of Public Education, at the time of the 14th hamidmeamendment, n really important. But there was the famous footnote 11 in which the court coming off of a some funds in the trial court cited the famous doll studies of Kenneth Clark that had found that africanamerican children had lower selfesteem and were more likely to choose white dolls than africanamerican dolls. And this was controversial and led the people who were resisting the decision to say that it was based on bad social science. Today i think toe meeko is rimi clearer overturning of plessy might have made it tougher. Court was wrong to rely on socialological evidence. The purpose and intent in effect of segregation is to degrade and therefore, plessy is overturned. Roberto youre on, good evening to you. Good evening. Calling from ann arbor, michigan. Thanks. I want to congratulate you and the National Capital center and mr. Rosen for a wonderful series and im really enjoying this thoroughly. Ill get to my questions. Hello . Were listening. My first question is, did the framers believe that seg gase w gags segregation of equal protection under the law and could the brown decision have been made using religious interpretation . And the final question is, when the fifth amendment was passed, obviously it didnt have an equal protection clause. So in the bowling versus sharp case, could that case have been decided using religious interpretation . Read michael mcconnells great article, originalism in the desegregation decisions, in the virginia law review, the best attempt to create an originalist defense of brown. Heres the bottom line. There were those in congress and in 1868, john bingham was among them who thought that basic civil rights had to be available to all and wouldnt have allowed segregation there, at the same time, Felix Frankfurter commissioned his law clerk to write a study. Its clear that the people in 1868 who proposed the hamidment, ratified it in 1868 and proposed it in 1866 did not think that schools had to be desegregated. People stood up and said dont worry this isnt going to apply to schools. In order to say that schools are covered as an originalist matter, you have to move to 1875 when the congress was more liberal this is a problem for originalists. If you think what matters is what the framers and ratifiers thought, then brown is hard to just fi as a matter of original interpretation and no current justice has done a great job in explaining why it is consistent with original understanding. Were going to run out of time. Well get back to that later. Felton is watching us in silver spring, maryland. Youre on. Good evening. Yes. My were listening. My comment is, do you think that after hundreds of years of segregation, adverse Economic Impact on black families that they had in the past, deserve some type of reparation through the Justice 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. The, 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. If one could consequenvince reparations were appropriate. How would one 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 frostberg, maryland. Hi, robert. Good evening, ladies and gentlemen, how are you doing . Yes, maam, im a vietnam veteran. And one of the things that have just devastated me is first of all, democracy is never lost anywhere on earth and has been respected everywhere. Imperial colonial supremacy and caste racism has been, last century was driven out of every, all over the world. Just driven out of their lives. So intolerable to people. And now i fought in a war where we were driven out of that colonial mentality and caste racism. Here we talk about brown versus topeka kansas and the education system. It is so insane that we still hold on to this stupid prejudice we had at the civil war over this insanity. And yet, my country with all the beautiful principles that it has, and people have learned to respect it all over the world, yet we keep on holding on to what was driven out all over the world last century. Whether its armed revolution or nonviolent revolution, people are tired of that caste racism, theyre tired of it everywhere on earth. Thank you. Thank you. I will say thank you for your service. The second thing i will say is 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 our constitutional system. And 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 every day practice. And partly, thats reflection of the fact of something that i said before. Which is, that something that frankly the court was concerned about. At various times. And that is, the ability of law to change peoples hearts or every day practices. In order for there to be social change in the way and Race Relations in a way that you aspire to rightly. Really has to occur not only institutionally, but interpersonally. So i want to show a piece of video next this was used in one of the lower court cases in davis versus County School board of Prince Edward county here in virginia. Its interesting, because it documents the differences between white and black schools in this county in virginia. But whats interesting is both sides, the plaintiffs and the defendants used these pictures stating that they supported their positions. So lets watch. These photographs are exhibits in the court case Dorothy Davis versus the school board of Prince Edward county. The davis case was wrapped into the brown v. Board case before the Supreme Court. What were looking at here are the exteriors of the schools. Heres a white school in Prince Edward county, virginia. Notice that its brick, twostory structure in a neighborhood, landscaping, and sidewalks. While here, we have several buildings that compose a single school. Some of which are brick, some of which are tar paper and its in a rural setting. Now we move inside to the classrooms. Here we have white school in Prince Edward county, notice that the students seem relatively comfortable. While we can take a look at the africanamerican school, children are wearing coats. Theres a very large heater in the middle of the room. Thus showing us just how cold it was in these rooms. Moving on to other parts of the buildings. Here we have a home ec class in a white school. Notice much of the furniture and appliances are relatively new and modern. While in the africanamerican schools, 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 these facilities were unequal. Whereas on the defendants side, they wanted to show that these facilities were just about equal. So as were looking at those, we have to talk about how one of those cases, the brown versus board of education of topeka, made its way into the federal courts. First of all, is the brown in this case, the linda brown we saw earlier . It is linda brown. And she was the daughter of oliver brown. Who was, he was in topeka, he was a welder in the shops of the sante fe railroad. I have to look for the facts. He was also a parttime preacher. In some of the pictures you see they had him wearing his collar. He chose to wear his collar, which adds another dimension to this case. But he was brought into the case, he was approached by the naacp. He didnt seek them out of the one reason that the naacp and Thurgood Marshall chose the brown case and not those other cases was to avoid a dispute about whether or not the facilities whether equal. The fact that both sides in the prince georges case had the gall after seeing those photographs, actually to present them saying they were equal. Was confusing according to marshall. Thats why he picked a school where there was no allegation of separate but equal facilities. He was stressing the fact, that linda brown, as she said in the incredibly moving introduction, the her tears freezing up. The fact that she had to walk six blocks to a school bus and take a long bus ride to this segregated school. Where there was another Elementary School seven blocks from her house, in which she could have walked directly to. For her and for her father was an indignity and an outrage was selfevident and didnt rely on exactly whether the facilities were equal or not. It was filed in the u. S. District court, february 28, 1951. The arguments before the court naacp was represented by Robert Carter and jack greenberg. Arguing for Topeka School board, Lester Goodell and it was a threejudge panel, Walter Huxman, arthur mallet and dallas hill and judge Walter Huxman wrote the opinion. Can you tell us about that opinion that we should know about . The important aspect of that opinion i would say is that although the judges rejected the application of sweat and mclaren, 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 merit was adverse to the naacp. But in terms of that little finding of fact, theres a little nugget in there. That was very helpful. So jeff rosen, could you explain then once again how it actually, these cases made it to the Supreme Court . Were justices looking for a case to decide this . What was the process where these five cases were consolidated and the court agreed to hear them . I dont know that the justices were looking for it but there was a disagreement among the lower courts, which increases the possibility that the court will take the case. It was very important that the president had both the truman and eisenhower administrations had filed briefs, phillip elman, wrote a brief that he considered the most important of his entire career, he was a clerk for frankfurter. He wept through the courts previous precedent and showed how they compelled the result in brown. I think to a certain extent the court felt that it couldnt avoid it. But then something very dramatic happened. I dont know if this is the time to tell the story. Probably not. Lets take two more calls. And then were going to talk about what the Supreme Court looked like in 1952. Because in fact, this court case was heard twice by two different courts. And well talk about the drama that caused that court to be different the Second Time Around. Gary is in tampa, florida. Hi, gary, you are on the air, welcome to our program. Caller thank you, im aware there were impeach earl warren signs on southern highways. What im curious about was brown versus board of education, an issue saying in the 1956 president ial campaign or the 1960, or the 1964, 1968, et cetera. I dont remember reading about it that it was a specific issue raised in any debates. And im just curious to hear some feedback. Well i dont know that i can talk about president ial debates in brown versus board of education. But i can say that it was a, it was made a highly salient issue in politics. Certainly in the south where there was deep resistance to brown. So if it wasnt debated in formal terms, it was certainly something that was talked about, warren was a focus of you know, he was a person from which one wanted a pound of flesh, right . He was the representation of brown and the court and the sense that the court had been activist. In a way that it had never been before. So 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 campaigns. And later on, after the court had actually started to enforce the decision. Josh here in algona, iowa, youre on cspan, welcome to landmark cases. Caller i want to say that cspan will expand on their 12 historic cases and do another 12 historic cases here in a little bit. Lets do it. Caller my question was absolutely. My question was, did justice hugo black, who had been a member of the kkk, and also the majority opinion in koramatsu, redeem himself by voting to end School Segregation . Such a great questioning. And as you say, hug or black is appointed to the court by roosevelt. Its reported hes in the klan, theres an outcry. He gives a radio address. He stands before the mics and says, i did join the klan, i therefore resign. I never rejoined. This is all i have to say about the goes bravo, justice blackth and he was allowed to go on. The outcry which led to protests around his house must have made a deep impression on him. He joined some pathbreaking opinions recognizing racial equality in criminal procedure cases the. And during the brown case hes the one southerner, in the initial vote and well tell the story in a little bit. Who actually was very keen to vote to strike down segregation. Some have speculated it was in fact to redeem the stain of his klan membership. Hes also the only southerner who says at the conference 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. So he really is bringing his political wisdom to bear. Theres one final story thats interesting. Walter tellinger, a former solicitorgeneral was a clerk for hugo black. And at one point he asked the justice, you know, so justice black, why did you join the klan . And theres a silence among the other clerks. And black paused and said son, if you were running for a senate in alabama in the 1920s, you would join the klan, too. I think he felt the need to redeem himself and perhaps he did some of that with brown. Your questions is a nice segue into our just brief discussion of what the court looked like in 1952. The chief justice was fred vinson. If you watched our series last week, you will remember that fred vinson was a truman appointee. And in some cases described as a truman crony. And he was joined on the court by justices hugo black, harold burton, tom clark, william douglas, Felix Frankfurter, robert jackson, Sherman Minton and stanley reed. Last week we heard that vinson did not do a very effective job at bringing coalitions together. In 1952 was it still very very divided and was he having a difficult time bringing together two groups within the court that really didnt see eye to eye . Well, i think the basic problem with vinson, was that his colleagues didnt republican respect him very much. Thus, he did not have the Institutional Authority that was necessary to try to bring the justices together is what i would say. The division that i think is most important to perhaps talk about is the rivalry between jackson and frankfurt 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 something to say about this, but the thing to say about the first combination was that there was a belief in judicial restraint and concern about the justices issuing holdings that were Legal Holdings and not political. And so, a lot of concern about how to actually deal with plessey. Plessey was a precedent that was on the books for a very long time. And Justice Jackson and justice frankfurter were concerned about how to justify a decision to overturn plessey. Can i just pick up on that . Tomiko so well describes that. And they become manifest in the first conference over brown. So as tomiko says, the colleagues dont respect vinson. Frank furtherer, vinson had threatened to punch frankfurter in the nose, because he was the harvard professor always condescending to him. So the initial vote is Something Like four votes to strike down segregation, black, douglas, minton and burton. Three votes to possibly uphold, vinson from kentucky, stanley reed from kentucky and tom clark from texas. Two who seem undecided, frankfurter and jackson. Who for the reasons that tomiko said are in favor of judicial restraint. Dont like segregation, they are new deal democrats, they dont think the courts should be stepping in here. So the initial vote is taken, and looks like the segregation is going to win and then all of a sudden before the court can decide the case, vinson drops dead of a heart attack. So on the funeral train, on the way home from the funeral, it was said that this is the first indication i had there is a god. Not a nice man, frankfurter. But then the court reargues the case and warren comes in and you probably want to wait and hear what happens the Second Time Around. I do. First i want to get the attorneys on the docket for our viewers, theres a familiar name. The defendant attorneys included john davis, who has been in now three of our landmark cases. Who was john davis and why was he at the helm of so much of our 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 can call him a strict constructionist, he said i definitely dont believe in a living constitution. Although i do think the constitution can occasionally adapt as the Commerce Clause shows. But he really did feel like he was defending southern traditions. For him this is an easy case. He says look the court repeatedly affirmed segregation, plessey is on the books. The text doesnt forbid segregation. The original understanding clearly allowed segregated schools. He thought he was going to win easily and for him hes so invested in the case, that after the oral argument drg i want all the readers to read this, the end of oral argument davis has tears in his eyes. Thurgood marshal says thats how he was invested. In maintaining segregation. And on the other side was Thurgood Marshal as we mentioned. Robert carter was part of the naacp legal team. Spotswood robinson, arguing the virginia case. Lewis redding. Jack greenburg argued part of the delaware case. George hayes and james naybrit. I want to show another video because you talked about the impact of this social experiment case. The doll case. Ologior on the justices thinking on this. So we have a video about kenneth and mamie clark, who had conducted this 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 doctors kenneth and mamie clark used in the doll studies. The doll test 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, 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 wellknown part of the brown case, was they showed Young Children black and white dolls and they would ask the children, show me that doll thats nice. Give me the doll thats the best. Give me the doll that looks like you. And more often than not, the black children showed the doll as the doll, the nice doll was the white doll. The doll that was the best was the white doll. When he 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 looked troubled. As 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 chose the white doll that looked like them. Because they 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 its decision . Was this an unusual thing that this became part of their chinking . Thats a good question. You know Justice Brandeis in practice had introduced the reliance on social science into lawyers practice. And so it was not the first time in brown versus board of education that the court relied on the social science. I think, though, that what made this different was that 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 in all of the things that we would think about today. In terms of reliability of social science. So although it wasnt altogether new. But on the other hand the extent to which the brown opinion ends up relying on the doll studies and on the idea that black children feel inferior because of segregation, i think was profound. So we left the story with the death of the chief justice. Now was it because of the chief justice death that they decided to rehear the case . Or was that already going to be reheard . That is an important question, i dont want to get it wrong. They did decide to rehear it because frankfurter asked for a rehearing. Was it right after he had granted the rehearing or before . Im not sure about that detail. Whether he, what role his death played in the rehearing. But the court couldnt come to a decision after hearing the first round of oral arguments . They chose not to. And frankfurter. They could have voted, frankfurter who tried to take credit for everything, he said he had special insight into south because he had taught southern students at law school, so he knew how they would react. He said if we commission this paper about the original understanding of desegregation that will give us sometime and maybe allow a consensus to happen. So vinson dies, frankfurter says theres a god and then earl warren is appointed by dwight eisenhower. Who is earl warren . Hes the former governor of california, the republican candidate for Vice President in 1948 when tom dewey ran. And hes a tall, blonde, 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 koramatsu case. And as attorney general of california, he had supported that. It wasnt until the end of his life, in his memoirs in 1976, he finally expressed remorse for the japanese internment and he wept when he reflected on what he had done. He was nevertheless a very, very moderate, remember this with is a time when the Democratic Party had been the party of segregation. And the Republican Party was the party of lincoln. So for earl warren to be in favor of civil rights at the time was not unusual. He had won the one the first Supreme Court seats, he had wanted it. Dwight eisenhower promised it to him. And vinson dies and warren said give me the seat. And eisenhower said i didnt promise to give you the seat of the chief justice. And warren said, this is the first seat open. So he held eisenhower to the deal. Eisenhower says it was the worst damn fool decision he ever made. So the second set of oral arguments were heard december 79, 1953. The court again ill read the justices, chief justices, earl warren, black, clark, frankfurter, jackson, minton and reed. What was the length of oral arguments the Second Time Around . And did they differ very much . The oral arguments the Second Time Around were focused on these questions about original intent. And the trouble there, jeffrey has already explained what the problems were. The framers of the 14th amendment were not social integrationists, in the way we think of today. So the question that was put before 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 of children in Public Schools deprive minority children of equal protection of the laws under the 14th amendment . I would like to have you tell the story. Because the chief justice decided that for this decision to work, it had to be unanimous. How did they get to unanimity. This is a riveting decision. And a riveting story of how they got there. One of the great examples of judicial statesmanship in american constitutional history. So the arguments are heard. As tomiko described. And the justices have their vote in a private conference. And warren begins by saying this is an easy case. This is an easy case, its obvious that segregation has the intent and purpose and effect of degrading africanamericans. And they take a vote. And its not entirely clear what the first vote was, but its at least 63, maybe 72. And there are two major holdouts. Robert jackson, the great advocate of judicial restraint, as tomiko said and stanley reed from kentucky, an ardent segregationist. So jackson is in the hospital. Hes had a heart attack. And warren visits him and basically says its a very important for the court that this be unanimous. And jackson cant see in the original understanding or the text or 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 stanley reed, the last segregationist. And warren goes to visit reed in his chambers and says stanley, 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. For the good of the court and the country youve got to make it unanimous. And reed who is an institutionalist agrees to make it unanimous. Warren then reads the decision to a spellbound courtroom. He says the question is does segregation violate the 14th amendment . We believe it does. Thurgood marshall looks up at stanley reed, he cannot believe that this ardent segregationist voted to strike down segregation and he looks up and said stanley reed, you voted . And stanley reed nods, an electric moment and a real testament to warrens statesmanship that he was able to create unanimity. Let me read a little bit of chief Justice Warren who wrote the opinion for the court in what he had to say. We conclude that in the field of Public Education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiff and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the 14th amendment. Im going to let that stand and take some more calls because our time is evaporating quickly. Lets go to christopher watching in brooklyn, new york. Youre on. Caller so majority of white people were against segregation. And i actually, i saw, 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. Dennis in palestine, texas youre on. Go ahead. Youre on. Last time for dennis, were going to move. On to ron watching us in east chicago, indiana. Good evening, ron. Caller i want to real quickly say wow, this program and this discussion and this show is so vital for our survival. Kudos and congratulations to your program which is so vital for the survival of america. My question is what do we need to do to keep this going . This discussion has to keep going. You know, our neighborhoods have been robbed of our history and you guys are doing a phenomenal job. Whether people agree with you, disagree with you, weve got to keep it going. Especially during the president ial election. I love you, i want to keep it going. Thank you very much. God bless you, bye. Thats very kind of you, appreciate the good comments there. Before we leave, i want to get one other thing on the record. Which you mentioned earlier, the cold war. And in fact in at least in the first case, the government filed an amicus brief, that made reference to 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 is seems to be a determined impact on the outcome by the justices realization about the politics or policy impact of what theyre reviewing. So help people understand how the Court Functions and what it says is an insulated study of the law environment. What we keep seeing instances where politics does impact the decision. You know its so important, to focus on this. We think of brown as a countermajority decision, an unpopular decision imposing a rule of equality at the time when most of the country was in favor of segregation. Because of the map you showed earlier. Because it was so pervasive. But in fact, 54 of the country supported desegregation at the time brown came down for the reasons that weve been discussing. It was an international embarrassment. After world war ii, it was derided as a kind of Something Worthy of the defeated nazis to have this kind of justice of segregation and inferiority. And opinion was shifting quickly. It was really 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 both the truman and the eisenhower administration, eisenhower is no big fan of quick desegregation. He said warren was a big mistake. But his administration does support striking down desegregation. For all these reasons, the court is aware of what the congress is doing. Its aware of what the executive is trying to do it knows about Jackie Robinson. And in that sense, brown surprisingly, supports it. So to the micro, and then to the macro. Well listen next to linda brown, talking about her familys reaction when they heard the courts decision. Lets watch. Time stood still as the highest court of the land pondered over brown versus board of education. Until an afternoon in may of 1954, when i was at school, my father at work, and my mother at home doing the family ironing and listening to the radio. At 12 52 p. M. , the announcement came. The courts decision on ending segregation was unanimous. That evening in our home was much rejoicing. I remember seeing tears of joy in the eyes of my father, as he embraced this, repeating thanks be unto god. There were many africanamericans who were very excited. About the decision, very hopeful. About the decision. The court was viewed as over time as a is 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 that the decision was outrageous. That it was the mother of judicial activism. That the court had not followed the law that it hadnt been faithful to its imperatives as an institution. That the court had put itself in the position of being a legislature. There was a lot of pushback against brown versus 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 and 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 the time is at happened when the states must reassert their Constitutional Rights or suffer their own destruction. If states are to preserve their constitution. They must declare the black monday decision, brown decision to be illegal and invalid and of no force and effect of the territorial limits of their respective jurisdictions. Senator harry bird of virginia who organized the Massive Resistance Movement said the unanimous decision of the Supreme Court to abolish segregation in Public Education is not only sweeping, but will bring implications and dangers of the greatest consequence. Its the most serious blow that has been struck against the rights of states in a matter vitally affecting their authority and welfare. They authored what is called the southern manifesto. It was signed by 19 senators, and more than 80 representatives, all of them southern democrats in congress. What was the effect of this . The effect of that, can you imagine as you said, calling it black monday and signing this southern manifesto, was precisely to encourage Southern States to resist in the ways that the manifesto demanded. And the resistance as tomiko 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 a 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 the next dramatic case. Central high school, little rock, arkansas, the resistance to allowing integration is so great. That president eisenhower used to call in the National Guard we can talk about that great case, if you like. Were going to take some calls, this is dennis in palestine, texas, youre on the air, hi, dennis. Caller i want to say Jeffrey Rosen is correct. That richard krugers simple justice, is fantastic work, was an epiphany for this southern boy, who had only heard one side 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 hearing 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 in 71, that he was, that was just, on they were just covering their bets, so to speak. He wanted to, he did not really feel that way. And 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. You remember this very well. It was an important controversy, the court was quite pivotal. The fact is southerners dont like black people and are never going to admit them and the truth is, i believe that plessey 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 he, jackson, was undecided. Justice jacksons secretary disputed rehnquists account and said that jackson had never asked for competing opinions to be written in his voice. And according to her, rehnquist was expressing his own views. I think thats the most direct evidence. Maurice is in memphis. Caller good evening to all of you. The 14th amendment does not apply to the federal government. Though we i think we feel certain fundamental protections are so important that they appear twice. So the sixth and the 14th amendments each have a due process clause. The equal protection of the laws is a more explicit safeguard prohibited unfairness than due process of law. I would not assert that that implies that 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 . Well, i think youre referring to the controversy over bowling versus sharp where the court reads an equal protection component into the fifth amendment. Theres a lot of discussion about exactly how the court does this. How the court explains it. I dont think the court goes very far towards an explanation. That 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 states 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. Its the due process clause is the basis that the court ends up using for fundamental rights analysis. So i would say that you know, theyre not the same, but theres an appropriateness to reading that component, the equal protection component into the fifth amendment under those circumstances. Tomiko is right. Justice harlan, who wrote the dissent in plessey, believed that class legislation or unfriendly legislation based on race was itself a privilege and immunity of citizenship and the court read the immunity clauses, as you know if you watched the slaughterhouse episode. That argument is no longer available. For some of the framers of the 14th amendment, that might have been a less close case. A comment that said what did the brown v. Board to the legacy of john harlan, notable for his plessey dissent . It vindicated him as one of the great prophets of the 19th century. Chuck, palmyra, pennsylvania, hi, chuck, youre on. Caller yes. Hello . Hello . Hello. Caller you say that brown reversed the plessey decision. Isnt it true that railroads continued to ignore the brown decision and continued segregating Passenger Rail cars until the Civil Rights Act . Well its not just railroads, its all kinds of Public Institutions that dont exactly comply with brown. So it takes a very long time as you say for brown to actually be implemented. As jeffrey pointed out, theres the cooper versus erin decision where the court speaks to the issue of school desegregation. The problem is that unless theres in the early years after brown, if theres 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. Its not until the mid, really the late 1960s, after the Civil Rights Act that brown is implemented in any substantial way. Our next piece of video is Thurgood Marshall. He gave an interview to mike wallace, famous of cbs on eisenhower, president eisenhower, and what he thought of the president s decision and response to the desegregation of schools this was taped on april 16th, 157. Lets watch. I do not think that president eisenhower has done anywhere near what he could have done. Personally, i dont think its too late. I think the president should have shortly after the decision, or at least by now, have gotten on the 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 owe baselined to do that. And i think that his failure to do so does not help us at all. Especially when we realize that as a result of the failure of the good forces, to take over, weve allowed these other forces like the White Citizens Councils and the klan, to threaten and intimidate good people. Leadership should come from the Top Executive of the government. Its his responsibility. Five months after that decision president eisenhower sent federal troops into enforce the desegregation and little rock, arkansas. So walk us through president eisenhowers legacy on this. So cooper, as if brown wasnt 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 governor orville father standing at the schoolhouse door saying hes never going to allow the students to come in. And you have president eisenhowers decision to send the National Guard to insure the admission of these school kids, then you have a Supreme Court which is so afraid that its rule to integrate the schools will not be obeyed. Theyre not sure what eisenhower will do. That each of the justices signs the decision in ink on the decision itself. This was never done before. All of the justices to prove their unanimity sign it it seems like a show of strength. In fact its a sign that theyre scared to death, that hes really not going to follow through. And the 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 and congress have no role, that wasnt what John Marshall asserted. These will are nine men who letly dont know what the president will do the fact that he did send the troops and his grumbling about earl warren did say the Supreme Court has made its decision i have to enforce the law is helps mitigate eisenhowers. And theres an interesting new revisionist history saying behind the scenes eisenhower was aware of shifting politics, but he was more supportive of desegregation than he appeared in public. I would like to show you one more video. Taped in 1969 in an interview and hes talking about his frustration with the resistance to the brown decision. Lets mix it in and well hear your thoughts on this. In some parts of the country, yes. One couldnt help being impatient when, when you would see the orders of the court flaunted and just not obeyed in any sense of the word. And where illegal things were changed in form, but not in substance and carried on. The court, one feels frustrated. 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, and when we make the decision to see that they will in the future have these rights, then i think well be on the way to solving most of our domestic problems. Well, a couple of things to say, first of all, i agree that there is this revisionist scholarship on eisenhower. That puts a somewhat different spin on his views. However, and theres cooper versus aaron where he is sent in guard, those are important. At the same time i think the problem for eisenhower as it relates to school desegregation, hes very supportive of states rirkts which is what Thurgood Marshall is talking about. And theres a sense that he is not really supportive of the principle of desegregation. As a personal matter. So theres 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 sent pli were concerned about the little white girls sitting beside overgrown black boys in the classroom. So i do think that theres 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. Understood that having the office of the presidency behind the Supreme Court. Having congress, 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. Let me take a call from ken watching us in somerset, new jersey, hi, ken, youre on. Caller hi, thank you. I have two questions, number one. Its my understanding that despite what you said earlier, that eisenhower said that appointing warren to the Supreme Court was one of his his worst decisions, its my understanding president jackson in 1828. Id like to hear your comments. I love the fact that you bring up jackson and of course he did famously say in the cherokee indians case, he said John Marshalls decision, John Marshall made his decision now, let him enforce it. Confirming hamiltons adage that the Supreme Court has not a person or sword there foreit depends on the president. I have not heard eisenhower appointed warren because he wanted a positive decision in brown. The fact that he resisted making an appointment at all trying to renege saying i didnt mean you for chief seems to call that into question. I do agree with tomikos counter, which is despite the revisionism on the whole he was on the wrong side. Id be interested if any viewers have a site for that, please tweet it in because it will be interesting. But i havent heard that particular story. We have ten minutes to talk about six years of legacy of the brown decision, which is impossible to do. So i first want to start with the legal legacy. Weve got four citations of brown. In 64 reynolds versus sims, in 1967, loving versus virginia, racial integration and marriages. San antonio Independence School district versus rodriguez in 73 and planned parenthood v. Casey in 1992. If you look at legal legacy, what has it left the country with from that perspective . Thats a really good question. I wont say. You know 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 schooled on that point. But i will also say that brown has a mixed legacy in part because it could be interpreted in so many ways. So you cite the san antonio versus rodriguez. There is a discussion of that decision by Justice Powell who writes san antonio, a case that holds that walton is suspect and education is not a fundamental right. That is inconsistent with Thurgood Marshalls and a lot of peoples understanding of the consequences of brown versus 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 that one could point to. I want to get into this. Talking about the integration of schools, bob on twitter says so far you have not mentioned the hedge for a Supreme Court using the phrase integrating with all deliberate speed. So how did this come into play . So how instructive was the court in actual rollout of desegregation . So thank you for noting that. Its really important. And the language came from our friend Felix Frankfurter who said once again, i know from English Common law and principles of equity. When youre not sure a particular decree will be immediately enforced, you can give the parties a little bit of discretion and tell them, they hugo black. He said, if you give it any room, it will be worse. Frankfurter put it in that language, and these knots of other hedges in that decision in brown to, while giving weight to public and private considerations, should make a prompt and reasonable start. The courts can consider problems related to administration, but disagreement the court did say the vitality of the constitutional principles cant 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, were not really going to be on you if you resist. As tomiko absolutely just pointed out, it wasnt until not only the passage of the Civil Rights Act in 1964, but the guidelines adopted by the department of health, education and welfare just a few years later threatened to withhold federal funds from schools that didnt desegregate. Only then did meaning full deseg regs occur. It more than a decade after brown actually achieved its promise. The court seems to continue to struggle, at least at the University Level with affirmative action cases, and another one scheduled for this term in the court. What has been the societal legacy of brown versus board of education . Another good question. I would point us to parents involved, which was a case about k12 education and whether School Districts could voluntarily be segregated. There the court held it struck down the policies that were at issue, which in louisville, a desegregation policy was adopted after the School System what no longer officially under court order. By consensus, large consensus of the community, it wanted to continue with the 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. 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. You know, it may not be a sweeping holding, but the nature of a conversation that the court is having is it goes back to that word some would say of judicial supremacy. The court in the affirmative action context is saying it needs to be satisfied that there arent raceneutral alternatives to these raceconscious policies, and there are university officials, education officials who would argue that they need to be in that position of exercising discretion about composing their bodies. Here is a little bit of chief Justice John Roberts and the parents involved decision. Parents involved in Community Schools versus seattle, heard in 2007. Some of what he wrote is this. Before brown, School Children were told where they could and could not go to school based on the color of their skin. The School Districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again, even for very different reasons. The way to stop discrimination on the basis of race is to stop discriminating on the basis of rate. There is, as tomiko well says, a huge debate on the Supreme Court right now about the meaning of brown. Is it a ban on all racial classifications as chief Justice Roberts seems to suggest, or is it a ban on racial subordination . Does it demand color blindness or just prohibit caste affirming laws that degrade . The court is deeply divided on this question. The division itself can be found in the brown opinion and in brown 2, which clearly didnt resolve whether it was demanding a quality of opportunity, the end to formal segregation or a quality of results, actual integration. This continues to this day. All i can say is that 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 at intelligence square. The fact that even years after brown, more than 60 years after brown, we still havent resolved what its central meaning is, suggests that the meaning of the Reconstruction Amendment continues to be contested and debated. The last piece of video is Thurgood Marshall. He was, as you know, the architect of the naacps Legal Defense strategy which decided to attack the segregation of schools as a process to help change society. Thurgood marshall, as you know, went on to be appointed to the Supreme Court as the first africanamerican justice. He served from 1967 through 1991. Here is Justice Marshall at the National Bar Association meeting in 1988, accepting jurist of the century award. He talked a bit about the state of Race Relations postbrown. 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 a goal toward which youre moving, a goal that is the basis of tree democracy, which is over and above the law. It is something that wont happen, but you must race 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, then by merely drawing its 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. Of course, it is not true. It never will be true. I challenge anybody to take a position that that is not the goal that we should be shooting for and stop talking about how far weve gone and Start Talking about how close we are. And with that thought, we have about a minute left for your comments on the brown decision in 1954 and the significance it has had on american society. Well, i think 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 thats rightly so. It is a paradox though because of all of the things that weve talked about. Brown was not considered to be a conlaw case, it was actually based in law, right . There are many questions about the method that the court uses to reach its decision, but over time it is accepted as the right principle. The court did the right thing. Thats important. It sets a high bar, high aspiration for us. As Justice Marshall said, so many times were still climbing towards its goal. Jefferson in the declaration of independence promised that all men are created equal, yet he owned slaves. Took lincolns new birth of freedom at gettysburg to make it something to reality. The civil war amendments, the 14th, 15th amendments tried to enshrine that in the constitution, but it took a century after that for brown to at least begin to make the promise of the declaration and the Reconstruction Amendments a reality. We certainly have not come close to achieving that promise for the reasons weve been discussing. Our thanks to tomiko brownnagin and Jeffrey Rosen for being with us looking at the 1954 decision of brown versus board of education. Thanks to you for being heart of our audience. Landmark cases returns live next february on cspan. Join us to hear more stories of the people who sparked groundbreaking cases and the justices and lawyers who were key to the Supreme Courts review. Cspan has been on the road meeting with winners of this years student cam video documentary competent. At layer amy high school in layer amy, wyoming, gathers with family and School Officials to accept her first place prize of 3,000 for her documentary on wyomings dependence on fossil fuel. In golden, colorado, a young manac septembered a second place price of 1500 for his documentary on cybersecurity. Also in denver, the third place award of 750 went to 10th graders dunham perry and max bariotis for their documentary about digital theft of hacking. St. Thomas more high school in rapid city, south dakota is where audrey cope, grace wittenberg won the price for 750 for their documentary. Patrick miller and kayla miller received a third place price for his documentary on the national debt. Class mat aden alvin won a price of 250 for his documentary on marijuana. At nearby thomas a. Edison middle school a number of students won Honorable Mentions at 250 for group. Sarah bomhonff won. These juan for their documentary on terrorism. These also received Honorable Mention for their documentary on global warming. Thank you to all of the students who took part in our 2017 student cam documentary competition. To watch any of the videos go to studentcam. Org, and student cam 2018 starts in september with the theme the constitution and you. Were asking students to use any provision of the u. S. Constitution and create a video illustrating why the provision is important. Each night this week on cspan3 were focusing on a Supreme Court case with programming from our landmark cases series. Next, a look at mapp v. Ohio. The 1961 case strengthened Fourth Amendment protection against unreasonable searches and seizures, making it illegal for evidence obtained without a warrant to be used in a criminal trial in state court