The Chief Justice, Racial Segregation, and the Friendly Critics

Abstract

EARL WARREN became Chief Justice of the United States on October 2, 1953. Only eight months later he authored what will probably prove to be the most momentous judicial decision of the century--Brown v. Board of Education.1 The Chief Justice wrote for a unanimous Court. Conceivably, we will some day know how unanimity was reached. What was the role of the Chief Justice's predecessor?' Was it necessary to woo and win those members of the Court with Southern backgrounds?3 How were the lines drawn in December of 1953, when the cases were argued for a second time? Are the speculations correct which credit the newly arrived Chief Justice with the unanimous statement? Was the opinion in the cases shaped by adamant refusals to concur unless this or that approach was utilized? Whether or not the Chief Justice was responsible for the unanimity of decision and the statement of opinion, his choice to be the Court's spokesman will forever identify Earl Warren as much with desegregation as is John Marshall with judicial review. As Chief Justice, Earl Warren was the first among equals in deciding the case; as the writer of the opinion, he was the identifiable spokesman of the Court. The Brown decision has drawn heavy fire from persons to whom the Court's action is an anathema. One hardly could have expected otherwise. These spirited attacks have drawn counterfire. The charges and answers are too well known to bear repetition here. Recently, however, criticism has been leveled by two renowned scholars who abhore segregation. One is Professor Herbert Wechsler, who agrees that segregation should be stamped