A Storm over This Court: Law, Politics, and Supreme Court Decision Making in Brown v. Board of Education

NOTES

ABBREVIATIONS EWP Earl Warren Papers, Library of Congress. FFP—Harvard Felix Frankfurter Papers—Harvard Law School Library. HHBP Harold H. Burton Papers, Library of Congress. HLBP Hugo L. Black Papers, Library of Congress. NAACP Papers National Association for the Advancement of Colored People Papers, Library of Congress. RHJP Robert H. Jackson Papers, Library of Congress. TCCP Tom C. Clark Papers, University of Texas at Austin, Tarlton Law Library. WODP William O. Douglas Papers, Library of Congress. INTRODUCTION 1. 347 U.S. 483 (1954). The three cases consolidated with Brown came from South Carolina (Briggs v. Elliott), Virginia (Davis v. County School Board of Prince Edward County), and Delaware (Gebhart v. Belton). These cases were the result of a long-standing litigation campaign that was itself part of a larger effort on behalf of African Americans by the National Association for the Advancement of Colored People. Ross, J. E. Spingarn and the Rise of the NAACP, 160; Kellogg, NAACP, 35, 266–71; Tushnet, The NAACP’s Legal Strategy, 10, 34. 2. 163 U.S. 537 (1896). In Plessy, the Supreme Court sustained the constitutionality of a Louisiana statute that required railroads to provide equal-but-separate accommodations to whites and blacks, and forbade persons from occupying rail cars other than those to which their race had been assigned. The Court held that the law, like similar laws establishing separate schools for white and black children, did not violate the equal protection clause of the Fourteenth Amendment. Rather than imply the inferiority of blacks, the Court argued, the law was simply a reasonable exercise of the state’s police power to preserve public peace and good order. 3. 347 U.S. 483, 489 (1954). See also Klarman, “An Interpretive History of Modern Equal Protection,” 252 n.180. 4. Hockett, “The Battle over Brown’s Legitimacy,” 31–34. For the sake of clarity, this book refers to the African Americans who challenged school segregation but lost in the lower courts as petitioners (as opposed to appellants), and to the school boards NOTES 198 Notes to Pages 2–5 that defended the practice and won in the lower courts as respondents (as opposed to appellees). The terms are reversed for the parties in the Delaware case, Gebhart v. Belton. The Delaware Court of Chancery, while declining to declare school segregation unconstitutional, nevertheless found the facilities at Clayton High School superior to those of the black school and ordered the school board to admit the child of Ethel Belton to the white school. Thus, the school board petitioned the Supreme Court to hear its appeal. For the sake of simplicity, the chapter narratives of this book elide this exception. 5. 347 U.S. 483, 494–95 (1954).Thurgood Marshall became Special Counsel to the NAACP Legal Defense and Educational Fund (LDF) in 1939. He would lead the direct challenge to segregation that culminated in Brown after he concluded that the equalization suits that his predecessor, Charles Houston, had pursued at the graduate and professional school level would never result in desegregated schools. Tushnet, The NAACP’s Legal Strategy, 36, 73, 81–88, 100, 109–10, 114–15; Ware, “Hocutt,” 230–31; Kluger, Simple Justice, 1:232–33, 276, 366–70, 396–434; Houston, “Educational Inequalities Must Go!”; Houston, “Cracking Closed University Doors”; Marshall, “An Evaluation of Recent Efforts to Achieve Racial Integration in Education,” 318–19. 6. Rosen, The Supreme Court and Social Science, x-xi, 38–196; Hockett, “The Battle over Brown’s Legitimacy,” 34–37. 7. 347 U.S. 497, 500 (1954). 8. Perry, The Constitution, the Courts, and Human Rights, 1; Bork, The Tempting of America, 75; Horwitz, The Warren Court, 15. 9. Wilkinson, From Brown to Bakke, 6, 39 (emphasis added). For a listing of sources that testify to Brown’s greatness, see Klarman, “Brown, Racial Change, and the Civil Rights Movement,” 8 n.2. For a sense of the lack of regard that contemporary scholars have for Warren’s opinion in Brown, see Balkin, ed., What Brown v. Board of Education Should Have Said. 10. Black, “The Lawfulness of the Segregation Decisions,” 429–30. See also Hockett , “The Battle over Brown’s Legitimacy,” 37–49. 11. For general discussions of the rulings of the Warren Court, see Powe, TheWarren Court and American Politics, and Kelly, Harbison, and Belz, The American Constitution, 593–662. 12. Green v. County School Board of New Kent County, 391 U.S. 430 (1968). 13. See, especially, Kluger, Simple Justice, and Tushnet, The NAACP...