Justice Robert H. Jackson and Segregation: A Study of the Limitations and Proper Basis of Judicial Action

Jeffrey D. Hockett

The ruling in Brown v. Board of Education of Topeka[1]--that racially segregated public schools violate the Equal Protection Clause of the Fourteenth Amendment--has rightfully come to be one of the most celebrated decisions ever rendered by the Supreme Court.[2] When announced, however, the form as well as the substance of Chief Justice Earl Warren's opinion drew bitter criticism.[3] Despite its moderate and non-accusatory tone, negative commentary was directed at the opinion even by those who strongly approved of its purpose.[4] The apparent lack of a legal basis for the ruling, and Warren's reference to sociological studies purporting to demonstrate the harmful effects of segregation on black children,[5] struck many as evidence of a policy-making Court or an instance of judicial usurpation of the legislative function.[6] While the form of Warren's opinion was not the primary reason for the protracted noncompliance that followed the ruling,[7] the misgivings engendered by the decision were undoubtedly exacerbated by the vulnerability of the Court's argument.

Many of the criticisms leveled at Brown could have been avoided or blunted had some of Justice Robert H. Jackson's ideas been incorporated into the Court's opinion. Jackson's working papers on the case reveal that he possessed a certain prescience concerning public reaction to judicial attempts to depart from long-standing constitutional doctrine and to reinterpret provisions in light of current presumptions and conditions. And he believed that this case, more than most cases, demanded consideration of the limitations of the judicial process in dealing with complex social issues.[8] Jackson's careful attention to the inherent limitations of judicial efforts to reform society and the informal restraints placed on these efforts by public opinion resulted, paradoxically, in a sounder approach to securing the rights of the plaintiffs in Brown. This is not to say that Jackson afforded an ideal means to effect the needed change in constitutional doctrine. Significant revisions of his argument would have been necessary, and Chief Justice Warren anticipated certain criticisms not accounted for by Jackson. Nevertheless, an examination of Jackson's writings provides valuable insights into the politics of constitutional revision by the judiciary--insights that would have facilitated the implementation of Brown and that are relevant to contemporary circumstances.

Justice Jackson, Segregation and the Fourteenth Amendment

Several scholars, in reconstructing the judicial deliberations in Brown, have noted Jackson's reservations and concerns which complicated the quest for Supreme Court unanimity.[9] However, there has been no thorough analysis of Jackson's views concerning the unconstitutionality of segregation which were formed after he resolved his doubts. Jackson's argument for ending segregation was set forth at length in an unpublished memorandum which he composed in 1954.[10] This opinion probably was suppressed in the interest of Court unanimity and because of Jackson's debilitated condition following his heart attack of the same year.[11]

The first section of Jackson's memorandum provides a brief discussion of the complexity of the situation before the Court. The eradication of segregation presents a formidable task, he believed, since it "involves nothing less than a substantial reconstruction of legal institution[s] and of society." Segregation is established not only in the laws of seventeen states and the nation's capital but also is embedded in the social customs of a large part of the country. Segregation persists, according to Jackson, because of fears, prides and prejudices, "which even in the North are latent," and which the Court cannot efface. And however sympathetic the members of the judiciary may be "with the resentments of those who are coerced into segregation, we cannot, in considering a recasting of society by judicial fiat, ignore the claims of those who are to be coerced out of it." The tendency toward separation is fundamental in mankind and is not limited to this country or to racial considerations. "It has seemed almost instinctive with every race, faith, state or culture to resort to some isolating device to protect and perpetuate those qualities, real or fancied, which it especially values in itself." Separatism is sometimes desired even by minorities. It is currently practiced on a voluntary basis by certain religious groups that forbid intermarriage, establish separate denominational schools and "seek to prevent contacts which threaten dilution of blood or dissipation of faith." This "instinct for self-preservation," Jackson argued, accounts for the existence of segregation in several Northern states as well as in the South.

The Southern situation, in Jackson's view, is complicated by antagonisms toward blacks that do not exist in the North. The white South still deeply resents the program of reconstruction and the humiliation of carpetbag government. Whatever the necessity or merit of these reconstruction measures, "the North made the Negro their emotional symbol and professed beneficiary, with the material consequence of identifying him with all that was suffered from his Northern champions." The race problem in the South thus involves more than mere racial prejudice; it is characterized by the enmity resulting from "a white war and white politics."

Consideration of the conditions which bought about and sustained segregation, Jackson believed, should deter the Court from adopting "a Pharisaic and self-righteous approach" to these cases and from promulgating a "needlessly ruthless decree."

After appraising the complexity of the controversy before the Court, Jackson turned in the second part of his memo to the question of whether existing law condemned segregation:

Layman as well as lawyer must query how it is that the Constitution this morning forbids what for three-quarters of a century it has tolerated or approved. He must further speculate as to how this reversal of its meaning [could have been initiated] by the branch of the Government supposed not to make new law but only to declare existing law and which has exactly the same constitutional materials that so far as the states are concerned have existed since 1868 and in the case of the District of Columbia since 1791.

Since segregation has existed in this country for so long, Jackson argued, it is difficult to believe "that the states which have maintained segregated schools have not, until today, been justified in understanding their practice to be constitutional."

Several considerations, according to Jackson, support the notion that segregated schools are constitutional. The language of the Fourteenth Amendment does not furnish a definitive basis for outlawing segregated schools, as ratification of the Fifteenth Amendment was required even to assure equal voting rights to blacks. With the deficiencies of the Equal Protection Clause obvious, the Fifteenth Amendment included no language referring to either segregation or education.

Historical analysis reinforces the view that the Fourteenth Amendment does not prohibit segregated schools. It is difficult to support the contention, Jackson argued, that any influential body of the movement behind the Fourteenth Amendment intended this provision to eradicate segregated schools or had even thought about either segregation or the education of blacks as a current problem. Although a few individuals involved in the framing and passage of that provision hoped it would establish complete social equality between the races and assimilation of liberated blacks into the American population, a majority of those who supported the Amendment were concerned merely with "ending all questions as to the constitutionality of the contemporaneous statutes conferring upon the freed men certain limited civil rights."[12]

If deeds are consulted as evidence of purpose, Jackson argued, the behavior of neither Congress nor the states indicates that the Fourteenth Amendment was aimed at prohibiting segregation in education. The very Congress that proposed the Amendment, and every subsequent Congress, maintained segregated schools in the District of Columbia. Furthermore, while Confederate states were readmitted to the Union only upon acceptance of the Fourteenth Amendment, Congress never indicated that segregated schools violated the conditions of reinstatement. It is true that five states abandoned segregated schools when the Amendment was submitted to them, and four states which had segregated schools refused to ratify the provision. But nine Northern states and two border states continued or established segregated educational facilities after ratifying the Fourteenth Amendment, and the eight reconstructed states all instituted segregated schools. "Plainly," Jackson concluded, "there was no consensus among state legislators or educators ratifying the Amendment any more than in Congress that it was to end segregation."

Judicial precedent, in Jackson's view, also supports the view that segregation is constitutional. Indeed, almost a century of case law confirms this view. Even Northern state judges and the Northern members of the United States Supreme Court have held continuously that the Fourteenth Amendment does not of its own force prohibit the states from establishing separate educational facilities for the races.

An examination of the language, history and case law of the Fourteenth Amendment led Jackson to conclude:

Convenient as it would be to reach an opposite conclusion, I simply cannot find in the conventional material of constitutional interpretation any justification for saying that in maintaining segregated schools any state or the District of Columbia can be judicially decreed, up to the date of this decision, to have violated the Fourteenth Amendment.

In the next section of this memorandum, Jackson focused on the difficulties attending the enforcement of a judicial decision invalidating segregation. In view of the Court's inability to ensure the equality of separate facilities after Plessy v. Ferguson,[13] he argued, there is "no reason to expect a pronouncement that segregation is unconstitutional will be any more self-executing or any more efficiently executed." This pessimistic prediction is warranted since the Court lacks the power to enforce general declarations of law by applying sanctions against persons not before it in a particular case. Furthermore, the school districts can be expected to continue segregation without the aid of legislation, since racial separation "exists independently of any statute or decision as a local usage and deep-seated custom." If the Court must rely entirely upon its own resources, a decision invalidating segregation is thus likely to "bring the court into contempt and the judicial process into discredit."

Any constructive policy for abolishing segregation, Jackson believed, must come from Congress. The power of this branch to implement its decisions far exceeds that of the Court. Congress can enact laws binding all states and districts and can delegate supervision to administrative agencies that may apply sanctions against those who fail to comply with the law. Moreover, Congress can supply federal funds to facilitate changes that are beyond the means of particular communities. Finally, Congress can assume the burden of expensive litigation against recalcitrant states.

Jackson rejected the argument of the Eisenhower Administration that the federal District Courts must assume the burden of implementing a decision invalidating segregation since Congress may refuse to act.[14] In Jackson's view, the belief that the courts must act because the representative system has failed is an insufficient basis for judicial action. The judiciary must first be capable of supervising educational authorities on a continuing basis. This task, however, is "manifestly beyond judicial power or functions," as "[a] gigantic administrative job has to be undertaken." "Local or state or federal action will have to build the integrated school systems if they are to exist." Another reason the judiciary should not be asked to implement a ruling invalidating segregation is that the federal government offered no guidance to determine when and how school systems should be reconstructed. Jackson refused to

be a party to thus casting upon the lower courts a burden of continued litigation under circumstances which subject district judges to local pressures and provide them with no standards to justify their decisions to their neighbors whose opinions they must resist.

While most of his opinion was devoted to an examination of the difficulties attending the execution and justification of a decision invalidating segregation, Jackson explained in the final section of this memorandum why the constitutionality of the practice could be maintained no longer. He began this section with the conciliatory statement that "[u]ntil today Congress has been justified in believing that segregation does not offend the Constitution." Congress and the states have relied on the Court's holdings that the requirement of equal protection does not prohibit reasonable classifications of citizens nor require government to accord identical treatment to all. In its holding in this case, Jackson argued, the Court does not invalidate the principle that equal protection allows classifications that "rest upon real not upon feigned distinctions" and that have a "rational relation to the subject matter for which the classification is adopted."

What the Court does invalidate, however, are classifications in education based upon race. It is now possible to see, according to Jackson, that the primary basis of these classifications--that there are "differences between the Negro and the white races, viewed as a whole, such as to warrant separate classification and discrimination" in educational facilities--is incorrect. Jackson conceded that he did not know whether this presumption was warranted in earlier times. When first liberated, blacks had little opportunity to demonstrate their capacity for education or even for self-support. Consequently, Jackson did not want

to stigmatize as hateful or unintelligent the early assumption that Negro education presented problems that were elementary special and peculiar and that the mass teaching of Negroes was an experiment not easily tied in with the education of pupils of more favored background.

The spectacular progress made by blacks, however-- "one of the swiftest and most dramatic advances in the annals of man"--has enabled them "to outgrow and to overcome the presumptions on which it [segregation] was based." In other words,

[t]he handicap of inheritance and environment has been too widely overcome today to warrant these earlier presumptions based on race alone. I do not say that every Negro everywhere is so advanced, nor would I know whether the proportion who have shown educational capacity is or is not in all sections similar. But it seems sufficiently general to require one to say that mere possession of colored bloo4 in whole or in part no longer affords a reasonable basis for a classification for educational purposes and that each individual must be rated on his own merit. Retarded or subnormal ones, like the same kind of whites, may be accorded separate educational treatment. All that is required is that they be classified as individuals and not as a race for their learning aptitude and discipline.

The necessity for judicial action on this subject thus "arises from the doctrine concerning it which is already on our books."

The breakdown of racial distinctions in American society also contributes to the unreasonableness of segregation. "Blush or shudder, as many will," Jackson noted, "mixture of blood has been making inroads on segregation faster than change in law." An increasing population with mixed blood baffles anyone attempting to classify the races.

The fact that segregation had been upheld for so many years is insufficient reason for the Court to continue to place its imprimatur upon the practice. "It is neither novel nor radical doctrine," Jackson argued, "that statutes once held constitutional may become invalid by reason of changing conditions, and those held to be good in one state of facts may be held to be bad in another."

Jackson ended his memorandum with the statement that he favored "going no farther than to enter a decree that the state constitutions and statutes, relied upon as requiring or authorizing segregation merely on account of race or color, are unconstitutional." He called for reargument on the nature of the decree that would provide a remedy to the petitioners in this case. But Jackson anticipated that the Court would have to allow for varying periods of compliance. In view of the complex and diverse circumstances surrounding the issue, Jackson held that "only a reasonably considerate decree would be an expedient one for the persons it has sought to benefit hereby."

The Jackson Memorandum: A Statement of the Limitations and Proper Basis of Judicial Action

The most fundamental difference between the opinions of Warren and Jackson was the challenge posed in the latter to the underlying premise of segregation. Jackson's opinion was predicated upon the accurate assumption that the primary justification for racial classifications was a belief in the inferiority of blacks. The notion of black intellectual and moral infirmity was widely accepted by individuals and groups (both Northern and Southern) whose views dominated public discourse during the latter part of the nineteenth century. These allegedly immutable racial distinctions were thought to necessitate and justify segregation in general (so as to avoid the debilitation of the white race through interbreeding) and separation of the races for purposes of education in particular (since blacks could not benefit from the education afforded to whites).[15] Jackson's bold decision to examine the sensitive issue of racial differences contrasted with Warren's strategy of focusing on the harms caused by segregation.[16]

Before examining the implications of these strategies, it must be noted that the boldness of the final section of Jackson's memorandum was offset by a marked concern evident throughout much of the opinion with the vexing difficulties of enforcement and justification. The cautious tone of Jackson's memorandum disturbed E. Barrett Prettyman, Jr., Jackson's law clerk during the 1953-54 Term and Justice Harlan's clerk during the 1955 Term. In a reply memo, Prettyman told Jackson that his argument was unlikely to generate public or political support because of its "negative attitude" and preoccupation with "doubts and fears." "If you are going to reach the decision you do," he wrote to Jackson, "you should not write as if you were ashamed to reach it."[17] Prettyman's criticisms of Jackson's memorandum are compelling. He was justified in pointing out to the Justice that it is one thing to express numerous concerns about a difficult decision, but "it is another thing to. state them at such length and in such precedence over your affirmative views that the result you reach is swallowed up in them." Jackson would have been wise to heed Prettyman's suggestion that the memo begin with a clear, affirmative, and extended discussion of the legal position adopted in the final section of the opinion.[18] Without these revisions (and others to be discussed shortly), it is unlikely that Jackson's opinion would have generated public and political support.

Yet, an opinion which failed to take Jackson's concerns into account would not have generated much support, either. Jackson anticipated intense opposition to a decision invalidating segregation, and he wisely counseled his brethren to concern themselves with the limitations of the judicial process and the difficulties attending the execution of the Court's rulings. As Walter Murphy suggests, a Justice of the Supreme Court "is not often in a particularly favorable position to exert the dynamic sort of leadership which can mobilize effective reform or counterreform movements,"[19] since the Court has control of neither purse nor sword. For this reason, Jackson believed the considerable powers of Congress would have to be enlisted to aid in desegregation efforts. His discussion of congressional power, his confession of judicial incapacity to direct the implementation of Brown, and his statement that a solitary judicial effort to eradicate segregation would ultimately damage the institutional prestige of the courts were intended to solicit the aid and enlist the moral authority of Congress.[20]

Jackson's suggestion that Brown would remain an empty gesture without congressional involvement was borne out. In 1964, ten years after the decision, only slightly more than 1 percent of Southern black children attended school with whites, and several states had no public school integration. Significant progress toward desegregated schools was made only in the late 1960s, after the fiscal power of Congress was brought to bear on recalcitrant states.[21] Of course, a judicial appeal for congressional assistance in desegregation efforts was unlikely to be successful in 1954, given that Southern Congressmen held influential positions on important committees.[22] A slightly more promising strategy would have been to combine the appeal for congressional support with a plea for assistance from the Executive, as President Eisenhower oftentimes stated that he was obligated to enforce the law as interpreted by the Court regardless of his personal beliefs.[23] Such a request might have served as the catalyst needed to activate an Administration that was, for the most part, apathetic toward civil rights issues.[24] Jackson was correct, however, in assuming that congressional involvement was essential to the success of Brown (i.e., a President can only propose necessary legislation), and his opinion, unlike Warren's, was crafted to induce a legislative response.

Jackson's appeal for positive congressional action would not have been heeded unless the form or rationale of his opinion was compelling. His attempt to persuade representatives and their constituents of the unconstitutionality of segregated public schools differed considerably from the logic of Brown. And it is likely that, overall, Jackson's approach would have been less vulnerable to the attacks of segregationists and more persuasive in the minds of those who had no interest in perpetuating the practice but would insist that an exercise of judicial power be "legitimate." Jackson realized that the Justices could not invoke the specific intent of the framers of the Fourteenth Amendment to justify the desired change in constitutional doctrine. Contrary to Warren's contention that the circumstances surrounding the adoption of the Amendment are "[a]t best...inconclusive,"[25] Alexander Bickel's historical investigation (published in the year following the Court's ruling) demonstrated that segregation in educational facilities was present to the minds of the framers, but they chose not to ban the practice. Warren's dismissal of the constitutional record thus left the Court open to the charge that the Justices had willfully ignored history.[26]

Yet, Jackson's frank and protracted historical discussion also would have made the ruling vulnerable. He emphasized the history behind the Amendment so as to avoid the impression that the Court was accusing the states of behaving unconstitutionally in the past.[27] But it is doubtful the South would have looked upon the decision more favorably had the opinion dwelt upon this information. Indeed, this probably would have incited resistance by fostering a feeling that an injustice had been inflicted upon the states. A more prudent strategy--and a strategy more well founded than Warren's-would have been to acknowledge briefly the circumstances surrounding the Amendment while emphasizing the reasons segregation should still be viewed as a violation of the Equal Protection Clause. This would have required that Jackson juxtapose the second and final sections of his opinion to make the point explicit that the notion of constitutional intent has never been restricted to the particular conceptions of the framers of a provision. Jackson needed to emphasize that the general proscription of unreasonable classifications is part of the meaning of the equal protection requirement.[28]

These problems of emphasis and organization aside, Jackson's justification for invalidating segregation in public schools was less susceptible to the charge of judicial legislation than was the rationale employed in the Court's opinion. Prior to Brown, the Justices never challenged the Plessy standard itself; at most, they insisted that separate educational facilities be equal.[29] By maintaining that separate schools could never be equal,[30]Brown departed significantly from previous decisions. Jackson realized that "the holy rite of judges consulting a higher law loses some of its mysterious power," to use Walter Murphy's words, "[w]hen the Court reverses itself or makes new law out of whole cloth [and] reveals its policy-making role for all to see."[31] And he believed the Court could act to preserve its institutional integrity or prestige by resting its decision upon a "legal" foundation.[32] That is, while the Justices would reverse constitutional doctrine--invalidate the notion of "separate but equal"--they would do so by employing the standard used in previous equal protection cases, namely, classifications between groups or individuals are allowable only if they reasonably relate to legislative purpose and are based upon real distinctions.[33]

Jackson's expectation that the Justices would receive harsh criticism for deviating from past rulings was well founded. A common charge directed at the Court was that it "blatantly ignored all law and precedent."[34] Some suggest the Court could have strengthened its argument by elaborating upon Warren's point that the notion of "separate but equal" was actually a departure from earlier rulings, which held that the Fourteenth Amendment proscribed all state-imposed discriminations against blacks.[35] Warren's failure to follow this tack, however, was fortunate, and perhaps purposeful. These earlier rulings would have been subjected to severe and compelling historical critiques had the Justices based the decision on the claim that they were merely returning to the original understanding of the Amendment as articulated by an earlier Court.[36] The historical accuracy of the basis of Jackson's argument (i.e., that constitutional provisions should be interpreted as general concepts not restricted to the particular conceptions of the framers) has been debated recently.[37] But the idea that the Equal Protection Clause prohibits unreasonable classifications generally was not controversial and was unlikely to be challenged seriously.[38] Certainly, Jackson would have been criticized for departing from the understanding that racial classifications in education are reasonable. His approach, however, enabled him to use language emphasizing continuity with previous rulings that Warren could not employ.[39]

Another sense in which Jackson's argument was less susceptible to the charge of judicial legislation was that it did not appear to rely upon "extralegal" materials.[40] Conspicuously absent from Jackson's opinion were references to the sociological data that had figured prominently in the petitioner's arguments and were mentioned in Warren's opinion.[41] In view of the fact that studies demonstrating the harmful effects of segregation were irrelevant to Jackson's holding (i.e., his contention that racial classifications in education are unreasonable did not depend upon whether segregation created a feeling of inferiority in black children), he had no reason to refer to the data. In an earlier draft of his memorandum, however, Jackson expressed extreme skepticism concerning the wisdom of incorporating social science evidence into Fourteenth Amendment jurisprudence. "I do not think," he argued, that "we should read into the concept of equal protection the shadowy and changing doctrines relating to mental and emotional reactions."[42]

Jackson's skepticism concerning the wisdom of incorporating such evidence into the Court's opinion was warranted. Warren's use of sociological studies was taken by many as proof that Brown was a political decision, one that merely implemented the personal value preferences of the Justices.[43] Warren's opinion, according to one commentator, "read more like an expert paper on sociology than a Supreme Court opinion."[44] Although legal controversies are oftentimes bound up with empirical questions, and such cases should be decided in the context of facts derived from the most reliable sources, the public generally views law and science as insular disciplines. Most believe the Court's only legitimate function is to interpret law (without reference to "non-legal" sources), and judicial use of sociological data is regarded as evidence of policy-making Justices.[45]

Some scholars suggest that the sociological evidence was incidental to Warren's opinion and could have been dropped without weakening the Court's argument. The cruelty of segregation, they believe, was obvious and required only a common-sense discussion to rebut the antiquated psychology underpinning Plessy.[46] Other scholars argue quite persuasively, however, that the Court was obligated to make reference to the studies.[47] The proximity and number of prior rulings accepting the possibility that separate facilities can be equal compelled the Justices to move beyond common-sense arguments in explaining the sudden departure from precedent.[48] Warren's approach, then, was vulnerable whether or not reference was made to the findings of social science. By contrast, though Jackson based his opinion upon an empirical proposition (i.e., that blacks are not inferior to whites), he was not obligated to employ extralegal materials, since there were no direct recent rulings examining the basis of racial classifications.[49] Unlike Warren, Jackson was able to resort to a common-sense discussion of changed presumptions and conditions which necessitated a modification in constitutional doctrine.[50]

The basis of Jackson's holding was useful not only for the purpose of preserving the Court's institutional integrity. Jackson's argument also placed the right of the petitioners to equal protection of the laws on a secure foundation--a foundation more secure than that provided by the claim that segregation creates a feeling of inferiority in black children.[51] The shortcomings of Warren's approach were demonstrated by the efforts of segregationists to have Brown reversed. Proponents of segregation initially sought to have the decision overturned by claiming science had shown blacks to be an inferior race -- a race undeserving of the rights and privileges accorded to whites. This unfounded assertion and unsuccessful tactic was followed by the accumulation of evidence ostensibly demonstrating the preferability of segregated to integrated schools[52]. Segregationists referred to the works of scholars such as A. James Gregor, who argued that racial separation actually enhances the development of a healthy personality in the black child "by reducing the psychological pressure to which the child is subjected" through contact with whites. In an ironic paraphrase of Warren's language in Brown, Gregor concluded that integration "gives every evidence of creating insurmountable tensions for the individual Negro child and impairing his personality in a manner never likely to be undone."[53] Criticism of the Court's argument was found not only in the writings of segregationists. Several scholars sympathetic to Brown doubted that the empirical basis of the Court's holding had been demonstrated convincingly by the findings of social science.[54]

While the effect of segregation on the personalities of black children was a matter of some controversy, the overwhelming weight of scientific opinion supported the view that all significant disparities in achievement between blacks and whites were traceable to environmental rather than biological causes. When Brown was rendered (and since then), scientific racism attracted little attention and virtually no support from the social science community.[55] Considering the segregationists' failure to demonstrate the inferiority of blacks,[56] Jackson's assumption that his declaration concerning the irrationality of segregation would withstand criticism or challenge was well founded.[57]

While Jackson's position on segregation survives the challenges of racists, it remains open (as does the Court's implementation decision)[58] to the criticisms of proponents of desegregation. Although he died before the Court heard arguments on the form of its remedial decree,[59]Jackson accepted the strategy ultimately adopted by the Justices. He was willing to defer relief to the victims of segregation by allowing for varying periods of compliance with the ruling as to accommodate diverse local conditions.[60] By failing to require immediate compliance with a declaration of unconstitutionality, Jackson essentially tolerated a deprivation of constitutional guarantees. The apology for this position -- --that compliance is only deferred and not evaded-- is little consolation to those individuals who must hope for good faith efforts by state officials toward compliance and who are deprived of a public benefit that is rightfully theirs. It is arguable that the Justices must ensure that no individuals are deprived of their constitutional rights for reasons of expediency if the Court is to act in a principled manner.[61]

As Alexander Bickel argued, however, a large and heterogeneous society like ours would disintegrate if it were deprived of the art of compromise or were "principle-ridden." Our society cannot be governed entirely by principle in some matters and exclusively by expediency in others. Often, guiding principle must co-exist with expedient compromise. Universal, immediate compliance with a declaration of unconstitutionality, while attractive, may be impossible to achieve in a particular situation, given the complexity of the task involved, the intransigence of public opinion, or the vulnerability of the Court's institutional prestige. Bickel maintained, however (and there is no reason to believe Jackson would have disagreed), that if a principle enunciated by the Court cannot be the "immutable governing rule," it must affect or guide the tendency of policies of expediency.[62]

The Limitations of the Jackson Memorandum

While the form of Jackson's memorandum would have stifled or blunted much of the criticism directed at the Court's decision, his argument for ending segregation was vulnerable in ways that Warren's opinion was not. Jackson was correct in claiming that the primary justification for racial classifications was a belief in the inferiority of blacks.[63] Segregationists, however, proffered other justifications for the practice. Some defended the dubious claim that racial separation was merely the form of social organization preferred by both races.[64] Human beings, it was argued, find their greatest happiness when among people of similar cultural, historical, and social background.[65] Jackson would thus have been subject to the charge that his analysis of segregation was simplistic. The Court was particularly susceptible to this sort of criticism since most of its members were Northerners.[66]

Alternatively, Jackson would have been criticized for failing to acknowledge the implications of the first section of his opinion, where he discussed the "instinctive" drive for separation present in every race, faith or state.[67] Jackson intended to convince the South forthwith that the Court was aware of the complexities of desegregation and to assuage fears that the Justices sought to engage the wholesale dismantling of Southern culture.[68] He failed to realize, however, that by entertaining the disingenuous arguments of segregationists, he undercut his efforts to demonstrate the unreasonableness of racial classifications.[69]

Warren's opinion did not elicit charges of oversimplification or inconsistency, since he made no observations about the underlying premises of segregation. His argument was limited to an inquiry concerning the effects of the practice. True, the Court was implored during the hearings on the nature of its remedial decree to respect the complex structure of customs and traditions that had grown up around segregation.[70] But, in declaring the practice unconstitutional, Warren did not incite resistance by fostering the impression that the Court had misunderstood the distinctive culture of a significant portion of the country.

It is arguable that Warren's avoidance of any discussion of the rationale underpinning segregation

precluded him from expressing a sufficiently strong judicial commitment to a philosophy of racial equality.[71] Jackson's opinion--with its profession of the fundamental sameness of the races[72] --may have been more appropriate for a ruling that marked a long overdue change in American race relations.[73] But Brown was and is generally regarded as a momentous decision and the product of an egalitarian political philosophy.[74] Moreover, Jackson's opinion would have had the unfortunate effect of subjecting blacks to the demeaning and superficial arguments of racists. The post-Brown developments demonstrated that certain proponents of segregation did not hesitate to defend the notion of immutable racial distinctions.[75] These repulsive arguments would have persisted and received wider exposure had the Court's opinion struck at the roots of the practice.[76]

Jackson's explicit challenge of the primary justification for segregation also would have made the Court's opinion appear somewhat self-righteous. Jackson held that the irrationality of segregation was apparent to all reasonable minds, and the obverse of this is that only unreasonable (or morally deficient) people continue to see any justification for racial classifications. Warren's opinion (although non-accusatory) also drew attention to the moral deficiency of segregationists. He maintained that segregation caused permanent harm, and all America knew where culpability lay.[77] Nevertheless, the psychological damage caused by segregation was not presented as a self-evident truth; social science data was used to demonstrate the existence of the harm. The infliction of this injury was thus less blameworthy than a belief in racial inferiority.[78]

Another problem stemming from Jackson's decision to challenge the underlying premise of segregation is the breadth of his ruling. Jackson's argument was likely to alarm the South since it effectively undercut all forms of segregation (i.e., if blacks are not inferior, the legal separation of the races cannot be justified in any social setting). By contrast, Warren narrowed the scope of his ruling by stressing the peculiar importance of public education and hence the need for vigilance in detecting inequality in this area alone.[79] This argument was expected to minimize the misgivings of those affected by the ruling.[80] Brown, however, could scarcely have engendered more controversy, as education was the most sensitive area in which desegregation could occur. School integration was viewed widely as a harbinger of what segregationists regarded as an execrable development in race relations--miscegenation. The period of adolescence was thought to be critical for the formation of social barriers between the races.[81] That segregation fell relatively easily in most areas except education suggests that the breadth of Jackson's opinion would not have generated significantly more opposition than Warren's ruling.[82]

While the drawbacks associated exclusively with Jackson's memorandum would have warranted concern, these problems were surmountable or were not as significant as the problems presented by Warren's opinion. Jackson minimized the accusatory or self-righteous tone of his opinion by noting that racial separation was not restricted to the South and stating that those who accepted the notion of racial distinctions should not be stigmatized or censured.[83] Charges that Jackson oversimplified the premises underlying segregation would have subsided as it became clear that alternative justifications were insupportable.[84] That this was likely to occur is demonstrated by the fact that efforts to prove the biological inferiority of blacks waned in part because of evidence to the contrary.[85] Arguments defending immutable racial distinctions would have persisted longer had the Court employed Jackson's reasoning. But it may be that significant progress toward equality in American society required that racists be challenged to defend their baseless arguments.

Conclusion

Since the problems associated with Jackson's opinion were not overwhelming, adoption of his argument by the Court would have been wise. The post-Brown developments demonstrated that the Court is only as powerful as its opinions are persuasive, and Jackson's argument for ending segregation was less susceptible to criticism than Warren's. Jackson's opinion was more consonant with constitutional history and accorded more closely with the public's conception of a permissible exercise of judicial power. Neither opinion could be characterized as a paean to the triumph of racial equality, as both "refused to lift the nation to the magnificence of the principle [they] had that day redeemed."[86] Even Jackson's opinion, which afforded a grand opportunity for such a statement,[87] seemed uncharacteristically hesitant and subdued.[88] Both Justices realized, however, that eloquence and incandescence had to be sacrificed to avoid the appearance of a pharisaical decree.[89]

If Jackson's opinion afforded a more promising strategy for securing the rights of the plaintiffs in Brown, it is reasonable to ask why the Court failed to adopt his approach. One possibility is that the Justices were unaware of this strategy, since Jackson's debilitating heart attack prevented him from presenting his case to his brethren.[90] This does not seem compelling, however, when one considers that during the Brown deliberations Warren proposed an argument for ending segregation similar to Jackson's. S. Sidney Ulmer, drawing upon the conference notes of Justice Harold Burton, suggests that the Chief Justice initially thought the Court should attack the underlying premise of segregation.[91] Ulmer provides no reason for Warren's abandonment of this tack. A likely explanation, however, may have been the need for unanimity. With three Justices from the South, the drawbacks of Jackson's argument may have led to its rejection. So, while the form of Warren's opinion drew public criticism that Jackson's approach may have avoided, the Chief Justice delivered something essential for the eventual success of a controversial ruling that Jackson may have been unable to furnish-the force of a Court speaking with one voice.[92]

Acknowledgements: The author thanks the University of Virginia; the Thomas Jefferson Memorial Foundation, and the University of Tulsa for grant support used in research for this paper.

Endnotes

1. 347 U.S. 483 (1954).
2. For a listing of articles extolling Brown, see Michael J. Perry, The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary (New Haven: Yale University Press, 1982), p. 167 n. 8.
3. See The New York Times, 18 May 1954. Opinions for the Supreme Court are, of course, institutional products or negotiated documents, and Warren’s opinion in Brown is no exception (see David M. O’Brien, Storm Center: The Supreme Court in American Politics (New York: W.W. Norton and Company, 1986), pp. 233-34, 240-62). Throughout this essay, however, I refer to the Brown opinion as "Warren’s opinion," since the Chief Justice was the primary author of the document. Warren said he wrote "every blessed word" (see J. Harvie Wilkinson, III, From Brown to Bakke: The Supreme Court and School Integration, 1954-1978 (New York: Oxford University Press, 1979), p. 30.
4. See, e.g., Herbert Wechsler, "Toward Neutral Principles of Constitutional Law," Harvard Law Rev. 73 (1959): 26-35. See also Wilkinson, Brown to Bakke, pp. 34-39; and Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality, 2 vols. (New York: Alfred A. Knopf, 1975), 2:898-900.
5. 347 U.S. at 494-95.
6. I.A. Newby, Challenge to the Court: Social Scientists and the Defense of Segregation, 1954-1966 (Baton Rouge, Louisiana: Louisiana State University Press, 1967), p. 186.
7. Significant progress toward fulfilling the promise of Brown was not made for over a decade (Charles A. Johnson and Bradley C. Canon, Judicial Policies: Implementation and Impact (Washington, D.C.: DQ Press, 1984), p. 256. The primary reason for noncompliance was, of course, white discontent with the result reached by the Court.
8. "Memorandum by Mr. Justice Jackson," 15 March 1954, p. 4, The Papers of Robert H. Jackson, Box 184, Library of Congress, Manuscript Division, Washington, D.C. (hereinafter cited as Jackson Papers).
9. See Dennis J. Hutchinson, "Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958" Georgetown Law Journal 68 (1979): 34-44; S. Sidney Ulmer, "Earl Warren and the Brown Decision," The Journal of Politics 33 (1971): 689-702; and Kluger, Simple Justice, 2: 764-72.
10. Memorandum by Mr. Justice Jackson," 15 March 1954, Jackson Papers, Box 184. Work on the argument contained in this memorandum began early in the 1953 Term, as Jackson believed then, according to his law clerk, E. Barrett Prettyman, Jr., that "Most of the Justices would eventually have to write the case" ("Notes re Segregation Decision. December 15, 1954," The Papers of E. Barrett Prettyman, Jr., Box 1, University of Virginia Law School Library, Rare Books Room, Charlottesville, Virginia) (hereinafter cited as Prettyman Papers). I trace the argument of Jackson’s final and most developed memorandum. Page references to this short document are omitted in this section for the reader’s convenience.

Richard Kluger devotes several (primarily descriptive) pages to Jackson’s memorandum, but he concludes: "Whatever its virtues . . . the Jackson memo left a good deal to be desired as a state paper" (Kluger, Simple Justice, 2: 869-73). Kluger is critical of the cautious tone of Jackson’s writing. I attempt to demonstrate that while the memo is flawed in several respects, Jackson’s argument for ending segregation has the earmarks of a piece of judicial statesmanship. The concerns which led to the cautious tone of Jackson’s opinion (i.e., the inherent limitations of judicial efforts to reform society and the restraints placed on these efforts by public opinion) gave him insight into securing the rights of the plaintiffs in Brown.

11. Prettyman contends Jackson" was about to start reworking [the draft] when he had a heart attack in March." While Jackson was in the hospital, Warren personally delivered his own segregation opinion to the Justice. Jackson suggested minor revisions but agreed to support the opinion )("Notes re Segregation Decision. December 15, 1954," Prettyman Papers, Box 1). Given Jackson’s physical condition, Richard Kluger’s contention seems reasonable that the Justice "would have a been likely to activate his concurrence memorandum only if Warren’s opinion seemed to him a piece of irresponsible butchery" (Kluger, Simple Justice, 2:880-81). Warren’s desire for and efforts to achieve unanimity are discussed in Ibid., pp. 880-83.
12. Jackson did say historical analysis "yields for me only one sure conclusion: it was a passionate, confused and deplorable era" ("Memorandum by Mr. Justice Jackson," 15 March 1954, p. 6, Jackson Papers, Box 184). And in an earlier version of his memorandum, he seemed even more inclined to accept the view that history was unhelpful (Memo dated 1/6/54, p. 6 Jackson Papers, Box 184). But the definite import of his final version is that history supports the views of segregationists.
13. 163 U.S. 537 (1896). Plessy held that separate facilities for the races were permissible under the Fourteenth Amendment so long as the facilities were equal.
14. The Department of Justice filed an amicus brief in favor of the plaintiffs in Brown (Kluger, Simple Justice, 2: 705-09).
15. Charles O. Lofgren, The Plessy case: A Legal-Historical Interpretation (New York: Oxford, University Press, 1987), pp. 93-115; see also Wilkinson, Brown to Bakke, p. 36.
16. 347 U.S. at 493-95.
17. Ibid., pp. 1-4.
18. Ibid., pp. 1-4.
19. Walter F. Murphy, Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964), p. 208. See also Johnson and Canon, Judicial Policies, p. 259.
20. See above, pp. ???? Se also Murphy, Elements of Judicial Strategy, pp. 123-29.
21. Johnson and Canon, Judicial Policies, pp. 256-61; Kluger, Simple Justice, 2: 948-82.
22. See Barbara Hinckley, The Seniority System in Congress (Bloomington, Indiana: Indiana University Press, 1971), pp. 35-52; Barbara Hinckley, Stability and Change in Congress, 4^th ed. (New York: Harper & Row, 1988), pp. 105-70; and Kluger, Simple Justice, 2: 950.
23. Murphy, Elements of Judicial Strategy, pp. 146-47.
24. Kluger, Simple Justice, 2: 950-52; C. Vann Woodward, The Strange Career of Jim Crow, 3d.. rev. ed. (New York: Oxford University Press, 1974), pp. 163-68.
25. 347 U.S. at 489.
26. Alexander M. Bickel, "The Original Understanding and the Segregation Decision," Harvard Law Rev. 69 (1955): 1-65 (For a Recent Study of Fourteenth Amendment history, see Raoul Bergere, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, Massachusetts: Harvard University Press, 1977). Berger contends that the framers did not intend to proscribe segregated schools (Ibid., pp. 117-33, 243-45)). Bickel’s essay was the product of research conducted in 1952 when he served as a law clerk for Justice Frankfurter. The Justice had copies of Bickel’s memorandum distributed among his brethren, and it is likely that Bickel’s work informed Jackson’s discussion of Fourteenth Amendment history (Kluger, Simple Justice, 2: 825-28). In his law review article, Bickel did not reject Brown or brand it as entirely inconsistent with history. But he concluded, contrary to Warren, that history is "anything but inconclusive" on the issue of whether the framers thought segregated schools were constitutional. Bickel suggested Warren may have meant merely that history is inconclusive on whether the framers understood that the Court could, in light of future conditions, have power to abolish segregation (as this was how Bickel squared Brown with the historical record) Bickel, "The Original Understanding," pp. 56-65). This interpretation of Warren’s meaning, however, is too kind. Warren’s language certainly suggests that no firm conclusion can be reached on what the framers thought about the constitutionality of segregated schools (see 347 U.S. at 489-90).
27. Kluger, Simple Justice, 2: 771.
28. See above, pp. 54-55.
29. Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); Sipuel v. Oklahoma, 332 U.S. 631 (1948); Fisher v. Hurst, 333 U.S. 147 (1948); Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).
30. 347 U.S. 495.
31. Murphy, Elements of Judicial Strategy, p. 204.
32. According to E. Barrett Prettyman, Jr., Jackson believed Warren’s opinion was flawed since it did not appear to have a legal basis ("Notes re Segregation Decision. December 15, 1954," p. 1, Prettyman Papers, Box 1).
33. See, e.g., Lindsley v. Natural Carbonid Gas Co., 220 U.S. 61 (1911); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920); Railway Express Agency v. New York, 336 U.S. 106 (1949); and Walters v. City of St. Louis, 347 U.S. 231 (1953). Richard Kluger and S. Sidney Ulmer contend that Jackson believed the Court should indicate that its ruling in Brown as a "political decision" (Kluger, Simple Justice, 2: 860-61; Ulmer, "Earl Warren and the Brown Decision, 2: 860-61; Ulmer, "Earl Warren and the Brown Decision," p. 695). In Kluger’s words: "As a political decision, [Jackson said] he could go along with it, but he would insist that it be so defined or he would have to protest. Almost certainly, Jackson was telling the conference that he would file a separate concurring opinion if whoever wrote the opinion of the Court feigned that the Justices were doing anything other than declaring new law for a new day" (Kluger, Simple Justice, 2:861). This conclusion is drawn from Justice Burton’s terse and sometimes cryptic conference notes. If Kluger means that Jackson wanted to announce that the Justices had decided to outlaw segregation without any justification other than their personal values, such an interpretation is difficult to accept. An examination of Jackson’s memorandum indicates that a more reasonable interpretation of Jackson’s position is that he believed the Court had to acknowledge that it was making new law (was departing from precedent) and that the states had been justified in believing their past actions were constitutional. The Justices, however, had to demonstrate that the Court’s decision was justified in law and that the classifications made by the states in the past were no longer acceptable. Ulmer seems to suggest this interpretation, but he fails to elaborate upon it (see Ulmer, "Earl Warren and the Brown Decision," p. 695).
34. See, e.g., "Ruling Tempers Reaction of South" New York Times, 18 May 1954, p. 20. See also Kluger, Simple Justice, 2: 897-98, 947.
35. Kluger, Simple Justice, 2: 899. See 347 U.S. at 490-91. These earlier cases include Strauder v. West Virginia, 100 U.S. 303, 307-08 (1880), Virginia v. Rives, 100 U.S. 313, 318 (1880), and Ex Parte Virginia, 100 U.S. 339, 344-45 (1880).
36. While Warren’s assertion that the history of the Fourteenth Amendment is not enlightening is misleading, the claim that the Amendment was intended to proscribe all forms of racial discrimination is patently false (see above, n. 26, and accompanying text). Had the Court based its decision upon this claim, there would have been no need to refer to controversial social science data (see below, pp. 59-60). Consequently, all attention would have focused on the historical accuracy of the earlier rulings.
37. See Ronald Dworkin, Taking Rights Seriously (Cambridge, Massachusetts: Harvard University Press, 1977), pp. 131-37; Perry, Constitution, Courts, and Human Rights, pp. 70-75; Berger, Government by Judiciary, pp. 363-72, 414-18; H. Jefferson Powell, "The Original Understanding of Original Intent," Harvard Law Rev. 98 (1985): 885-948; and Raoul Berger, "`Original Intention’ in Historical Perspective," George Washington Law Review 54 (1986): 296-337. A majority of the Court has never accepted the view that the only legitimate basis for constitutional decision-making is the specific intentions of the framers, and even those who purported to do so apparently thought it necessary at times to deviate from the original understanding. For example, Justice Hugo Black’s book, A Constitutional Faith (New York: Alfred A. Knopf, 1968), is a testimony to the importance of judicial fidelity to the intent of the framers. But his position in Reynolds v. Sims, 377 U.S. 533 (1964) (among other decisions), can only be characterized as a departure from this interpretive model (see Berger, Government by Judiciary, pp. 69-98). A Court that is liberated from the specific intent of the framers can certainly abuse its power. On the other hand, judicial adherence to a rigid form of interpretivism or originalism prevents the Court from acting when changed presumptions and conditions reveal the injustice of a governmental practice, and resort to the political process offers no hope for reform. Raoul Berger believes the original intent must be followed whatever the consequences: "I cannot bring myself to believe that the Court may assume a power not granted in order to correct an evil that the people were, and remain, unready to cure." (Government by Judiciary, p. 409).
38. See above, n. 33, and John Nowak, Ronald D. Rotunda, and J. Nelson Young, Constitutional Law, 3d ed., Hornbook Series (St. Paul, Minnesota: West Publishing Co., 1986), pp. 523-26.
39. See above, p. 55.
40. The term "extralegal" is, in a sense, a misnomer, as legal questions oftentimes cannot be separated from empirical questions (see below, n. 45, and accompanying text).
41. 347 U.S. at 494-95.
42. Memorandum dated 1/6/54, p. 11, Jackson Papers, Box 184.
43. Paul Rosen, The Supreme Court and Social Science (Chicago: University of Illinois Press, 1972), p. x; Newby, Challenge to the Court, p. 186; Kluger, Simple Justice, 2: 891-92; Wilkinson, Brown to Bakke, pp. 27, 31.
44. James Reston, "A Sociological Decision," New York Times, 18 May 1954, p. 14.
45. Rosen, Supreme Court and Social Science, pp. 3-22.
46. Edmond Cahn, "Jurisprudence," New York University Law Rev. 30 (1955); 157-61; Monroe Berger, "Desegregation, Law, and Social Science," Commentary 23 (1957): 475-76; Charles L. Black, Jr., "The Lawfulness of the Segregation Decisions," Yale Law Journal 69 (1960): 421-30; Kluger, Simple Justice, 2: 892-93, 900. In his opinion for the Court in Plessy, Justice Brown said: "We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it" (163 U.S. 537, 55 (1896)). Brown was unaware that the second sentence in this passage conceded the possibility that segregation causes psychological harm.
47. William B. Ball, "Lawyers and Social Scientists–Guiding the Guides," Villanova Law Rev. 5 (1959); 221; Kenneth B. Clark, "The Desegregation Cases: Criticism of the Social Scientist’s Role," Villanova Law Rev. 5 (1969): 234-35; Herbert Garfinkel, "Social Science Evidence and the School Segregation Cases," The Journal of Politics 21 (1959): 43.
48. See above, n. 29. The import, if not the holding, of Sweatt v. Painter, 339 U.S. 629 (1950), is that separate higher educational facilities for blacks cannot be equal, given the beneficial intangibles afforded exclusively by white schools. This decision, however, could not have served as the basis of a common sense argument that separate facilities at the elementary school level are inherently unequal, since Sweatt emphasized intangibles unique to a law school environment (viz., reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, and tradition and prestige) (Ibid. at 634).
49. Acceptance of the reasonableness of racial classifications was only implicit in the Court’s rulings addressing the notion of "separate but equal."
50. One might argue that Jackson’s approach involved improper judicial behavior, since his discussion of the improper judicial behavior, since his discussion of the underlying premise of segregation and events demonstrating the unreasonableness of racial classifications required him to go beyond the Court record (see above, pp. 55). The long-established doctrine of "judicial notice," however, allows judges to take broad societal conditions and events into account. The Model Code of Evidence of the American Law Institute holds that judges may on their own motion take notice of such things as "specific facts so notorious as not to be the subject of reasonable dispute, and . . . specific facts and propositions of generalized knowledge which are capable of immediate and accurate demonstration by resort to easily accessible sources of indisputable accuracy" (as quoted in Walter F. Murphy and C. Herman Pritchett, Court, Judges, and Politics: An Introduction to the Judicial Process, 4^th ed. (New York: Random House, 1986), pp. 360-61. The historical and contemporary information upon which Jackson drew could reasonably fall within these guidelines.
51. 347 U.S. at 493-95.
52. Newby, Challenge to the Court, pp. 185-204.
53. A. James Gregor, "The Law, Social Science, and School Segregation: An Assessment," Western Reserve Law Rev. 14 (1963): 626-29. Compare Warren’s language in Brown, 347 U.S. at 494.
54. Cahn, "Jurisprudence," pp. 161-65 (Cahn’s critique of the sociological studies employed by the Court was quoted frequently by segregationists; Newby, Challenge to the Court, pp. 188-89); M. Berger, "Desegregation, Law, and Social Science," pp. 475-76; Black, "The Lawfulness of the Segregation Decisions," pp. 421-30. (See also Rosen, Supreme Court and Social Science, pp. 182-96; and Wilkinson, Brown to Bakke, pp. 32-33.) These scholars maintained that the Court was not obligated to refer to social science evidence, since the cruelty of segregation was obvious and capable of judicial notice (see above, n. 46, and accompanying text). This claim, however, was weakened by sociological studies suggesting that integration causes psychological harm in black children.
55. Rosen, Supreme Court and Social Science, pp. 186-89; Newby, Challenge to the Court, pp. 192-93.
56. See above, p. 60.
57. Jackson might have been criticized for improperly applying the baseline equal protection requirement or "rational basis" test. That is, segregation must stand under this test if racial classification have "some reasonable basis in terms of some rational view of the public interest." Second, "[I]f a set of facts could conceivably exist that would render a [racial]classification reasonable, their existence must be assumed" Archibald Cox, The Role of the Supreme Court in American Government (New York: Oxford University Press, 1976), p. 59-60, emphasis in original; see also John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Massachusetts, Harvard University Press, 1980), p. 31. The Court could have envisioned and segregationists could have put forth several arguments to demonstrate the existence of some reasonable basis for racial classifications: (1) some studies suggest that there may be immutable racial distinctions (Newby, Challenge to the Court, pp. xi-xii); (2) even if there is no basis to scientific racism, the presence of disadvantaged blacks in white classrooms could hinder the educational development of white students (this was the argument put forth by the state of Virginia after Brown; Kluger, Simple Justice, 2: 913-14); (3) some evidence suggests that racially segregated schools promote healthy personalities in black children (see above, pp. 60-61). Jackson, however, could (and should) have noted that the Court considered racial classifications "suspect" (ironically, this principle was first articulated in the Japanese exclusion case, Korematsu v. United States, 323 U.S. 214, 216 (1944)). With suspect classifications, the traditional presumption of constitutionality is reversed. The state’s goal must be "compelling," and the burden is on the state to demonstrate the validity of the arguments supporting the classification and to prove that alternative means are not available to accomplish the stated legislative goal (Novak, Rotunda, and Young. Constitutional Law, pp. 530-31). None of the above justifications for segregation would survive strict scrutiny.
58. Brown v. Board of Education of Topeka, 349 U.S. 294 (1955).
59. Kluger, Simple Justice, 2: 903.
60. See above, p. 56. In its implementation decision, the Court did not fix a date for the end of segregation, nor did it direct the courts below to require the defendant school boards to submit desegregation plans within a certain period of time. It merely ordered the lower courts to "require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling" (349 U.S. at 300; see also Kluger, Simple Justice, 2: 939-41; and Woodward, Strange Career of Jim Crow, pp. 152-53).
61. This was the argument of the NAACP after Brown (Kluger, Simple Justice, 2: 926-28).
62. Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2d ed. (New Haven: Yale University Press, 1986), pp. 64-72, 247-54.
63. See above, p. 57.
64. According to C. Vann Woodward: "[W]hile they did comply, blacks were neither happy nor voluntary in their acquiescence [to racial restrictions] and . . . they resisted where it was possible" ("The Mississippi Horrors," New York Review of Books, 36 (June 29, 1989): 15).
65. Wilkinson, Brown to Bakke, p. 36; Woodward, Strange Career of Jim Crow, pp. 167-68. The Court appeared to accept this justification in Plessy (163 U.S. at 550-51).
66. Only Hugo Black (Alabama), Stanley Reed (Kentucky), and Tom Clark (Texas) were southerners.
67. See above, p. 53.
68. He also sought to avoid the appearance of self-righteousness (see above, p. 53).
69. These arguments were disingenuous and unsupportable since the justification, which fit racial classifications most closely, was the exclusion of a race because of the supposed inferiority of its members. In other words, a philosophy of racial inequality would surely produce this sort of legislation. Other reasons advanced to support segregation do not fit the classification as closely. Alternative means to accomplish these goals are apparent (see Ely, Democracy and Distrust, pp. 145-46. Under strict scrutiny, the alternative justifications would not support the classification (see above, n. 57). Jackson, of course, would have had to revise significantly the first section of his opinion.
70. Kluger, Simple Justice, 2: 913.
71. Ibid., pp. 900-01; Johnson and Canon, Judicial Policies, p. 257; Wilkinson, Brown to Bakke, p. 39.
72. See above, p. 55.
73. Jackson’s opinion, however, was not a particularly strong statement of racial equality either (see below, p. 63).
74. See above, n. 2; "Historians Laud Court’s Decision," New York Times, 18 May 1954, p. 17; and Kluger, Simple Justice, 2: 895-96.
75. See above, pp. 60-61.
76. The segregationists relented in their attempts to defend the notion of immutable racial distinctions in part because Warren’s opinion presented other targets (see above, pp. 60-61. These targets were not present in Jackson’s memorandum.
77. Wilkinson, Brown to Bakke, p. 53.
78. Warren’s controversial use of social science evidence, then, helped the Court avoid the appearance of self-righteousness. The common sense discussion of the harmful effects of segregation desired by some commentators (see above, pp. 59-60) would have had the opposite result.
79. 347 U.S. at 492-93.
80. Kluger, Simple Justice, 2: 948.
81. Rosen, Supreme Court and Social Science, pp. 173-74.
82. Kluger, Simple Justice, 2: 948.
83. See above, pp. 10-11.
84. See above, n. 69.
85. But see above, n. 76.
86. Although Wilkinson’s language refers only to Warren, it applies as we to Jackson (Wilkinson, Brown to Bakke, p. 29).
87. Jackson’s critical examination of racist tenets afforded an excellent occasion for a powerful statement on human equality.
88. See his beautiful language in West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
89. It is probably for this reason that neither Warren nor Jackson employed language from the ringing dissent of the first Justice Harlan in Plessy (see 163 U.S. at 552-64). It has been suggested that the tone of Brown would have been elevated had the Court borrowed from this great opinion (see Wilkinson, Brown to Bakke, p. 29).
90. See above, p. 52.
91. Ulmer, "Earl Warren and the Brown Decision," pp. 692-94.
92. For sources examining Warren’s efforts to achieve unanimity in Brown, see above, n. 9. For a discussion of unanimous Court opinions, see O’Brien, Storm Center, pp. 214-15, 273-74.