The Brown decision at 50: The limits of judicial action

The Argument

School desegregation was morally necessary, but it has left lingering race problems


May 16, 2004|By Ray Jenkins | Ray Jenkins,Special to the Sun

In this 50th-anniversary celebration of the Supreme Court's epochal Brown vs. Board of Education decision, which held school segregation to be unconstitutional, it is almost a national heresy to pose the question: Was this decision really necessary?

Merely to ask puts the questioner in dubious company. After all, the very first book -- if you can call it that -- about the Brown decision was a screed titled Black Monday. The author was an obscure Mississippi judge named Tom P. Brady, and although the book was self-published, it was an instant best-seller that swept the Deep South like the boll weevil and became the bible around which the White Citizens Council, a kind of coat-and-tie version of the Ku Klux Klan, took root throughout the region. Brady bluntly maintained that blacks were inferior to whites, and the choice was not between segregation or integration, but rather "segregation or amalgamation."

Brady was joined by many leading editors of the South, most notably the redoubtable James Jackson Kilpatrick of The Richmond News-Leader. The chief architect of "massive resistance" to the Brown decision, Kilpatrick dusted off an old pre-Civil War legal argument called "interposition and nullification," which held that states could, by simple act of their legislatures, reject Supreme Court decisions with which they disagreed.

Kilpatrick's editorials were codified in his popular 1957 book, Sovereign States: Notes of a Citizen of Virginia, and legislatures across the South dutifully followed his advice. Five years later, just before the bloodiest year of the post-Brown period, Kilpatrick was still beating that drum in yet another book, The Southern Case for School Segregation.

Three decades would pass before Kilpatrick, who at one point was the nation's most widely published syndicated columnist, would gingerly acknowledge that he may have been wrong in some aspects of his opposition to the Brown decision. His conversion occurred well after the public mea culpas of intractable segregationist politicians like Strom Thurmond and George Wallace.

Thus the Bradys and the Kilpatricks of the region fueled an emotional response to the desegregation decision that drowned out early mainstream voices who were raising cautious doubts about Brown on wholly different grounds.

For example, on the day after the decision was rendered, James Reston of The New York Times wrote an analysis that carried the headline "A Sociological Decision" -- echoing a muted unease in the halls of leading law schools that Chief Justice Earl Warren, author of the Brown opinion, had abandoned legal precedent and relied instead on such works as Gunnar Myrdal's indictment of the racial caste system in the United States in his hugely influential An American Dilemma: The Negro Problem and Modern Democracy (Transaction, 822 pages, $29.95).

As early as 1959 professor Herbert Weschler, a preeminent legal scholar of the day, ruefully questioned what he saw as the superficiality of Warren's legal analysis in the decision-making. Weschler's criticism, along with rejoinders by other leading scholars of the day, can be found in a useful compendium by Towson University professor Mark Whitman, Brown v. Board of Education: A Documentary History (Markus Wiener, $22.95), a 1993 book that is being republished this year.

More than two decades would pass before the definitive history of Brown vs. Board would be written by the journalist-historian Richard Kluger in Simple Justice (Vintage, 864 pages, $25). The encyclopedic work is being reissued this year, with new chapters, to coincide with the 50th anniversary of the decision. But Kluger's work -- covering nearly a thousand pages -- is so massive in scope that most readers might prefer instead to go to good biographies of the two leading figures in the case, Ed Cray's Chief Justice: A Biography of Earl Warren (Simon & Schuster, 608 pages) and Juan Williams' Thurgood Marshall: American Revolutionary (Crown, 504 pages, $16).

Cray relates the stupendous personal political achievement of Warren in securing a unanimous decision from a bitterly divided Supreme Court, and Williams tells how Marshall had to confront the concerns of a black-teacher corps that had grown comfortable and complacent with institutionalized second-class status; Marshall chose to go for an unequivocal declaration of segregation as unconstitutional.

Kluger, Williams and Cray tend to downplay the fact that there were, even in 1954, alternatives to court action. President Harry Truman's 1948 executive order desegregating the armed forces was carried out with practically none of the dire consequences predicted by the segregationist politicians. An excellent account of Truman's bold move, which to this day remains the unqualified success story in integration, is found in David McCullough's magisterial biography, Truman (Simon & Schuster, 1,120 pages, $40).

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