50 years ago, separate was no longer equal

By George F. Will
Published: Saturday, May 15, 2004 6:10 p.m. MDT
RELATED CONTENT |  E-MAIL | PRINT | FONT + - 
WASHINGTON — The Supreme Court's decision 50 years ago, although an immense blessing to the nation, also carries a melancholy lesson. It is that great events — the school desegregation ruling was the largest judicial event since the Dred Scott case of 1857 — have myriad reverberations, some beneficial, others not.

Brown v. Board of Education accelerated the process of bringing this creedal nation into closer conformity to its creed. But the decision also encouraged the abandonment of constitutional reasoning — of constitutional law. It invested the judiciary with a prestige that begot arrogance. And it seemed to legitimize a legislative mentality among judges wielding an anti-constitutional premise. The premise is that "unjust" and "unconstitutional" are synonyms.

The board of education being sued for its segregation policies was not in the South, but in Kansas — Topeka. Segregation was widely practiced, and even more widely approved. Yes, in Montgomery, Ala., it was illegal for a white to play checkers in public with a black. But Congress was running a segregated school system in the nation's capital. In 1948, President Truman could not persuade Congress to make lynching a federal crime.

Story continues below
When the case was first argued in 1952, the Supreme Court was composed entirely of Democratic — of Roosevelt and Truman — nominees. And if the court's composition had not been soon and unexpectedly changed by the addition of a Republican nominee, the legal basis of segregation — the doctrine that "separate but equal" public facilities are constitutional — probably would have been affirmed.

No Republican nominee had served on the court since Owen Roberts, a Hoover nominee, resigned in 1945. But in 1953, eight months in to Dwight Eisenhower's presidency, there occurred the most fateful heart attack in American history. It killed Chief Justice Fred Vinson, a Kentuckian who believed the "separate but equal" doctrine, enunciated in an 1896 decision, should remain.

Four other justices were, to varying degrees, inclined to agree. Cass Sunstein of the University of Chicago Law School, writing in The New Yorker, notes that the waspish Justice Felix Frankfurter said that Vinson's heart attack was "the first indication that I have had that there is a God." But Frankfurter and another liberal-leaning justice, Robert Jackson, were FDR appointees who had learned the virtues of judicial modesty by watching the judicial hubris of the court as it struck down many of FDR's early New Deal measures.

Vinson's death preceded a rehearing of the case. His replacement, Earl Warren, governor of California, was a post-New Deal politician. He was comfortable with the premise that the federal government's responsibilities extend to the general amelioration of citizens' conditions. A man of immense charm in the court's face-to-face politics, he also was impatient with the idea that justices must go only where led by judicial reasoning about the Constitution's text as it has been illuminated by precedents based thereon.

Comments

You can be the first to comment on this story.