In lieu of an abstract, here is a brief excerpt of the content:

156 twenty-two With All Deliberate Speed There has been entirely too much deliberation and not enough speed. —Justice Hugo Black According to published reports, Chief Justice Warren was convinced that a decision of the magnitude of the Brown cases required unanimity. He had worked hard to persuade his colleagues on the bench. The last holdout most probably was southern justice Stanley Reed, who intended to write a dissenting opinion. After several lunches during which Warren urged Reed to join the opinion, Warren asked his colleague whether he really wanted to file a lone dissent that would only encourage resistance in the South and undermine the authority of the Court. I have learned from others that Justice Frankfurter was also quite instrumental in getting Reed to join the Court’s opinion. Frankfurter pointed out that historically a justice would write a dissent mainly in the hope that a future Court would embrace the dissenter’s views, which would become the law of the land. With eight associate justices joining the chief justice’s opinion, there was no chance here that a future Court would change its position. (Reed apparently did not invoke the first Justice Harlan’s many solitary dissents to rebut Frankfurter’s argument.) Reed reluctantly agreed to join Warren’s unanimous opinion.1 While we were both elated and exhausted by the astounding victory in the Supreme Court, our work was far from over.The Court set the five cases down for further reargument precisely on what type of decree should be entered. Having taken the bold action to end state-mandated school segregation, what were we to do now? The Court had requested the parties’ position on this issue in paragraphs 4 and 5 of its June 8, 1953, order but apparently was not pleased with the parties’ responses. The Court no doubt thought the parties were taking extreme positions, marking the boundaries within which a reasonable remedy could be found. 04-0488-1 part4.indd 156 9/9/10 8:28 PM With All Deliberate Speed / 157 Marshall’s position was straightforward. The Court should order the states to stop illegal, unconstitutional action immediately, no later than the start of the next school term. His position on remedy was based on the 1953 Supreme Court decision in Morton Salt Company, a case that did not involve race. As a practical matter, the elimination of laws requiring school segregation would not result in the immediate integration of public schools throughout the South. Other restrictive laws, practices, customs, and traditions had played a part in the segregation of neighborhoods and school districts. Nor were state-sponsored practices of racial segregation by any means limited to the South. Federal and northern state actions were fully implicated in the segregation of neighborhoods and societal institutions. Racially restrictive covenants, discriminatory practices of federal housing authorities, the administration of the G.I. Bill of Rights, segregated housing projects developed during the Roosevelt and Truman administrations, and racially discriminatory banking and insurance practices all contributed to the creation of shameful segregated ghettos in northern cities. To give but one example, of the 67,000 mortgages issued under the post–World War II G.I. Bill in New York and northern New Jersey, 66,900 went to white veterans who built their homes in predominately white neighborhoods.2 Achieving the benefits of desegregated public school education throughout the country would call for some extraordinary remedies, including the busing of children. On the other hand, the Supreme Court was well aware of the civil disturbance that could result if it ordered all the schools in the South to desegregate within the next ninety days or even within the next year.The U.S. government expressed this concern in its brief on the decree. President Eisenhower personally read and revised the government’s brief to acknowledge that although segregation was wrong, it had been fervently supported by a great number of people and sanctioned by the Court for many years. Compliance with the Court’s decision would therefore require understanding and goodwill. Eisenhower also changed the wording of the Department of Justice’s bottom-line recommendation that “racial segregation in public schools is unconstitutional and will have to be terminated as quickly as possible,” substituting the word feasible for possible.3 There was much debate among the Marshall team about what position we should now take on remedy. Having dedicated more than twenty years of his life fighting for the result in Brown, Marshall’s instincts...

Share