If …

Abstract

If JACK GREENBERG1 When I received the invitation to deliver the lecture, upon which this article is based, for the Supreme Court Historical Society and to talk about Brown v. Board ofEducation,21 accepted quickly, reason clouded by the prospect ofonce more standing up to speak in the Court, particu­ larly without having to endure tough questions from the Bench. But a sense ofpleasure quickly turned to dismay when I began to wonder what in the world to say that had not already been said. A quick computer search turned up more than 1,000 articles that dealt with Brown and scores ofbooks devoted in whole or part to the case. Justifying a Counterfactual History I decided to talk about what I think might have happened ifwe had lost the case, something I have thought about from time to time. Speculation about consequences is commonplace. Su­ preme Court opinions, often dissents, theorize about what will happen because the Court has come to a decision that the dissent opposes. In Plessy v. Ferguson,2 which enshrined the separate -but-equal doctrine in constitutional law in 1896, the point at which the Brown story may be said to have begun, Justice Harlan’s dissent predicted the aftermath ofthe majority decision.4 What can more certainly arouse race hate, what more certainly create and perpetuate feeling ofdistrustbetween these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be al­ lowed to sit in public coaches occu­ pied by white citizens?5 In a comprehensive discussion of stare decisis in Planned Parenthood v. Casey,6 Jus­ 182 JOURNAL OF SUPREME COURT HISTORY tices Sandra Day O’Connor,Anthony Kennedy, and David Souter discussed whetherprecedent should be overruled as turning, in part, on an assessment of consequences. They wrote of “gaug[ing] the respective costs of reaffirming the overruling ofa prior case.”7 And, indeed, in deciding Brown itself, as the Justices conferred on whether to affirm or overrule Plessy, they considered potential after effects. Some of them spoke of the possibility ofviolent resistance and that public schools in the South might be closed.8 The brief for the United States as amicus curiae made a moral argument resting on prediction of conse­ quences, that racial segregation “undermine[s] the foundations of a society dedicated to free­ dom, justice, and equality.”9 It quoted Secre­ tary of State Dean Acheson, who had referred to Soviet propaganda that disparaged the United States and the hostile attitude ofother­ wise friendly peoples toward the United States generated by our racial practices.10 In view of the foregoing, I hope that my fictional account is within the parameters ofacceptablejurispru­ dential discussion. My mythical account will describe the imaginary development of race relations and related constitutional law in the United States from 1953 to 1973, Brown had been decided adversely to the plaintiffs. True Brown was decided in 1954 on the merits only after it had been argued twice; it was argued one more time on the procedure for implementation, decided in 1955. My scenario assumes a decision ad­ verse to plaintiffs in 1953 following only one argument. I think that my imagined 1953 out­ come and what follows is plausible and rooted in known events and patterns of conduct of institutions, governmental bodies, and people. In supporting my conjectures I will alternate between speculating about what might have happened and describing true historical events that lend that narrative plausibility. As my in­ vented history advances further in time from 1953, the year of the make-believe Brown decision against plaintiffs, the events that I conjure up will become less credible be­ cause the interacting factors will have increased exponentially in number. The Effort that Led to Brown I start with the real life campaign of the NAACP and the NAACP Legal Defense Fund that culminated in the true Brown decision in 1954, because it has within it the seeds ofboth the true and fictional histories. It was the prod­ uct of a remarkable planning paper by Nathan Margold, commissioned by Charles Houston, that was the foundation of a campaign com­ menced in the early thirties.11...