Justice Robert H. Jackson's Unpublished Opinion in Brown v. Board: Conflict, Compromises, and Constitutional Interpretation by David O'Brien (review)

The title of the book, Justice Robert H. Jackson's Unpublished Opinion in Brown v. Board: Conflict, Compromises, and Constitutional Interpretation, reaffirms the adage that you cannot judge a book by its cover. The richness of the content and analysis is significantly greater than what the title might suggest. Using the private papers of the justices, the author gives the readers a multilayered discussion of the many issues that gave rise to and engulfed Brown v. Board of Education of Topeka, Kansas. He uses Justice Jackson's unpublished opinion in Brown to explore the capacity of the Supreme Court to foster racial change in the American democracy. O'Brien argues the justices of the Court were very much aware that the decision in Brown would encounter the culture of white dominance and black subordination in the South and North. Since the separate but equal doctrine of Plessy v. Ferguson, the author indicates whites thought they were doing what the Constitution required or permitted. Even so, the separate but equal doctrine created a political, social, economic, and legal system that empowered whites and oppressed blacks.

As I read the book, I carried the hope O'Brien would discuss Justice Jackson and other justices' positions on segregation and the probable impact on blacks. I think such a perspective would provide insights into why Brown and subsequent decisions have not done more to alter the dynamics of segregation and race. Largely, however, O'Brien indicates the justices of the Court tended to see segregation and its impact from the perspective of whites and the status quo. O'Brien states: "In every one of the drafts, Jackson pondered how lawyers and the public could or would be persuaded by the Court's reasoning and ruling" (84). I believe such judicial thinking placed African Americans at a great disadvantage. This thinking also suggests the remedial decision of Brown II was designed to protect generally the interests of whites rather than to remedy the constitutionally violated rights of blacks.

The Brown decision has placed the Great Plains at the epicenter of the nation's perpetual struggle to address satisfactorily the exclusion of African Americans from the benefits and opportunities of the nation. O'Brien emphasizes how a federal district court judge from Topeka, Kansas, impacted Chief Justice Warren and the content of the Brown case. Chief Justice Warren asserted: "The effect of the segregation on their [black children's] educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the [black] plaintiffs. Segregation of white and [black] children in public schools has a detrimental effect upon the [black] children." On balance, I believe O'Brien has used effectively the various drafts of Justice Jackson's unpublished opinion to bring to the forefront many of the pivotal issues and demands of the path-breaking Brown decision. I think O'Brien's treatment of Justice Jackson's unpublished opinion constitutes a window to assess the successes and failures the Brown decision as a cultural shift on race in America.