Brown v. Board of Education and the Limits of Law

May 17, 2018 by

Kenneth B. Clark was born in 1914 in the Panama Canal Zone, grew up in Harlem, and attended Howard University, where he majored in psychology and where he met and married Mamie Phipps. Phipps was a math major, but Clark persuaded her to switch to psychology, and she wrote a paper, in her senior year, on the effects of race on the self-image of schoolchildren in Washington, D.C. Her husband found the results intriguing, and they began collaborating. They published their first paper on the subject in 1939. Fifteen years later, Clark’s work was cited in one of the most famous footnotes in Supreme Court history: Footnote 11 of Chief Justice Earl Warren’s opinion, for a unanimous Court, in Brown v. Board of Education, the case that declared racial segregation in public schools unconstitutional. That decision and its consequences—some intended, many unimagined—is the subject of James T. Patterson’s “Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy” (Oxford; $27.50).

Brown was the first major decision of the Warren Court, and it remains, for most people, the very type of a Warren Court case: it trumps a democratically approved practice with a constitutional right few people knew existed. In 1952, when Brown first came before the Court, school segregation was mandated by the will of the electorate in seventeen states and had been practiced in the District of Columbia, under the stewardship of Congress, for almost ninety years. Four other states allowed segregation at the discretion of local school boards. The majority of voters in places where segregation was the law showed no inclination to end it, and neither did congressmen from places where it was not. The consensus was that race relations were a local matter, and that although states were entitled to ban segregation if they liked, there was nothing in the Constitution that compelled them to do so. The Warren Court, of course, found otherwise.

In 1952, Warren was still governor of California. He was appointed by Dwight Eisenhower to fill the vacancy left by the unexpected death of Chief Justice Fred Vinson, in October, 1953, and he was not confirmed by the Senate until March. The decision in Brown was announced in May. So there is a sense in which Warren lucked out by finding a landmark case already on his plate when he showed up for work. It gave him an immediate occasion to make his mark. But it is also probably true that without Warren there would have been no Brown, at least as we know it. Until he arrived and applied the charm for which he became renowned, the Court was split, and the decision might have gone either way. The Supreme Court, as the saying goes, has no army. This is why it produces written opinions rather than peremptory orders (and why its members wear robes and read their decisions from a pedestal): it has to persuade elected officials, through a combination of reason and mystique, to back its rules by force. Warren saw the importance of unanimity on a matter, the status of black people, over which the United States had once gone to war, and he stroked the brethren to achieve it.

Source: Brown v. Board of Education and the Limits of Law | The New Yorker

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