Brown v. Board of Education: Revisited

Abstract

Brown v. Board of Education: Revisited Herbert Brownell Editor’s Note: This article was delivered as the Supreme Court Historical Society’s Eigh­ teenth Annual Lecture on June 7, 1993 in the Supreme Court Chamber. Mr. Chairman, Chief Justice Burger, and Friends ofthe Supreme Court Historical Society. I am pleased to have the opportunity that this occasion offers to greet many friends from my years in Washington, long ago as that was. As a chartermemberofthe SocietyI have been pleased, as I know you are, to watch its progress over the years and note its expanding influence with the bar and the public in its worthwhile mission. I congratulate the officers, past and present, for this achievement. Today I would like to fill in some missing pages (or at least some unrecorded pages) of history from the early days ofthe enforcement of Brown v. The Board ofEducation', which surely Herbert Brownell is sworn in as attorney general by ChiefJustice Fred Vinson as President Eisenhower looks on. As the head ofthe Justice Department he oversaw litigation relatingto the integration ofschools as a resultofthe Brown decision. 22 JOURNAL 1993 (From left) Herbert Brownell, William P. Rogers,ChiefJustice Fred Vinson,Warren E. Burger, Vice President Richard Nixon, and J. Lee Rankin at the Justice Department. ChiefJustice Vinson swore in Rogers as Deputy Attorney General and Burger and Rankin as assistant attorneys general. was one of the most important constitutional decisions ever handed down by the Court. It posed an immense problem of law enforcement for the Executive branch and that included us at the Justice Department. The case—really five cases consolidated— was originally argued before the Court in the waning days of the Truman administration—in the period between Dwight Eisenhower’s elec­ tion and his inauguration. On Inauguration day, the case had not been decided. The first intima­ tion that the new administration was to have a significant role before the Supreme Court in the pending Brown case came just a few days after Eisenhower was sworn in as the new president. A ceremony was being held at the Justice Department for the swearing in, by ChiefJustice Fred Vinson, of the new deputy attorney general and two new assistant attorneys general. After the ceremony, the ChiefJustice remained to visit with us informally about a number of matters affecting the judiciary as to which the previous attorney general had been asked to take action. 1 was called out of the room at one point by a telephone call. The Chief Justice continued in my absence to speak to the new assistant attorney general for the Civil Division, Warren E. Burger, one ofthose who hadjust been sworn into office. As reported to me later by Burger, Chief Justice Vinson said that the Supreme Court would be interested in the views ofthe Eisenhower admin­ istration in the pending case of Brown v. The Board of Education. I doubt if Chief Justice Vinson surmised that he was delivering this mes­ sage to a future ChiefJustice ofthe United States. The significance of Vinson’s seemingly off­ hand remark did not sink in at the moment. In retrospect, it appears that the Court was not at that point unanimous in favor ofschool desegre­ gation as it would later be. Later history appears to bear that out. It strikes me as plausible that Vinson was soliciting the new administration’s legal views to tip the balance, either by en­ couraging waverers on the Court to overturn Plessy v. Ferguson1 if the Eisenhower adminis­ tration was on that side ofthe school desegrega­ tion issue, or to dodge the question until public and political support were more evident and the Court would not have to risk its prestige in such a controversial constitutional area. Furthermore, BROWN V. BOARD OF EDUCATION REVISITED 23 it can be reasoned that if a stronger majority or even unanimity among all the nine Justices could be attained, the country might be more willing to accept such a drastic change in its mores. This, of course, is speculation on my part. It is entirely within the realm ofreason—although I think less plausible—that Vinson may have anticipated a negative response on the administration’s part, which...