The Supreme Court's Uncertain Trumpet in Brown v. Board of Education
It emboldened defiance by anemic enforcement of its landmark desegregation decree
According to prevailing orthodoxy, the United States Supreme Court reached its high-water mark of courage by holding racially segregated schooling unconstitutional in Brown v. Board of Education (1954). The decision removed the underpinnings of the odious “separate-but-equal” doctrine of Plessy v. Ferguson (1896) resting on the cynical denial of Justice Henry Brown that racial segregation implied an inferiority of the black race.
Courage, however, is made of sterner stuff. The Supreme Court emboldened racists by sitting on the sidelines while Brown was defied by the likes of the Ku Klux Klan and White Citizens Councils for fifteen years or more. The Justices should have remembered Corinthians 14:8, “For if the trumpet give an uncertain sound, who shall prepare himself to the battle.”
Intimidated by the prospect of massive southern resistance, the Court immediately waffled on enforcing Brown’s holding that intentional segregation by public school authorities violated the rights of black students to the equal protection of the laws. The logical corollary was that desegregation as soon as logistically practical was required in every offending school district to prevent violation of the equal protection rights of black children.
On the heels of Brown I, however, the Court backed down in Brown II (1955) from customary enforcement without delay. Instead, the Court declared that unhurried “deliberate speed” would be satisfactory. That toothless standard emboldened the racists outrages like the Little Rock 9 needing military escorts to enter Central High School, Mississippi’s insurrection against the admittance of James Meredith to the University of Mississippi, and Alabama Governor George Wallace’s racist bellicosity in his 1963 inaugural address: “[S]egregation now, segregation tomorrow, segregation forever.”
It took until 1968 after Martin Luther King’s assassination for the Supreme Court to awaken from its desegregation stupor in Green v. County School Board of New Kent County. It declared that the time for all deliberate speed had expired. Instead, “The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.” The next year in Alexander v. Holmes County Board of Education, the Court resorted to a bullhorn after tens of millions of black schoolchildren had for 15 years or more been denied their rights to attend a non-racist school system: “[C]ontinued operation of segregated schools under a standard of allowing ‘all deliberate speed’ for desegregation is no longer constitutionally permissible. Under explicit holdings of this Court, the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.”
Soon after the Brown decision, the Court dodged a ruling on the constitutionality of miscegenation prohibitions in Naim v. Naim . The Justices worried about angering southern White Supremacists. They waited until 1967 in Loving v. Virginia to declare what all the world knew: the motives for White majorities to deny two persons of different races a right to marry are racist.
The moral of the story is not to diminish the Supreme Court among the three branches of government. Judicial review remains a crown jewel. But we should recognize, like Finley Peter Dunne’s Mr. Dooley, that the Supreme Court follows the election returns, or, put more elegantly by Justice Benjamin Cardozo, “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”
The best we can hope for from the Court is speed bumps on the road to self-ruination featuring and the abandonment of liberty and due process as the nation’s glory. All the rest is up to us.