As we commemorate the fiftieth anniversary of Brown v. Board of Education, a major element in the American South’s social revolution remains hidden in the shadows of history. I refer to the small band of federal judges in the South, mostly Republicans appointed by President Dwight Eisenhower to the Fifth Circuit Court of Appeals, who fleshed out the bare bones of Brown and transformed it into a broad mandate for racial justice.
In the decade and a half after Brown, the Supreme Court issued only a handful of civil rights decisions. Instead, it affirmed major Fifth Circuit opinions about civil rights or let them stand without hearing an appeal, sending clear signals to the courts below. Retired Associate Justice Arthur Goldberg explained to me in an interview that the Justices believed that desegregation law shaped by Southern judges would be more acceptable to the South. At that time the Fifth Circuit stretched 1,500 miles, from Savannah to El Paso, and covered six of the eleven states of the Confederacy–Georgia, Florida, Alabama, Mississippi, Louisiana and Texas.
In a 1967 tribute to Chief Judge Elbert Tuttle, the Fifth Circuit’s leader, Chief Justice Earl Warren said, “Since he assumed office, the Fifth Circuit has been in the very eye of the storm.” One of its decisions “transformed the face of school desegregation law,” in the words of J. Harvie Wilkinson, writing as a University of Virginia law professor before joining the Fourth Circuit Court of Appeals, where he became chief judge. That 1967 case, U.S. v. Jefferson County Board of Education, also provided the constitutional rationale for affirmative action.
“The Constitution is both color blind and color conscious,” Judge John Minor Wisdom wrote in his majority opinion. “To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate government purpose.”
Wisdom, the scholar of the court, and Tuttle teamed up with John Brown of Texas, a fellow Republican, and Democrat Richard Rives of Alabama, an intimate of Justice Hugo Black, to implement Brown. A colleague on their court, Mississippian Ben Cameron, labeled them “The Four,” a clear reference to the Four Horsemen of the Apocalypse. Cameron considered states’ rights “the bedrock of our constitutional system” and believed his fellow judges were destroying the social order of the world he knew. Many white Southerners felt the same way about “The Four.” Friends shunned them. Their wives received threatening phone calls at home. But the judges never complained.
Legal scholars have only recently begun to recognize the “Southern jurisprudence” that emanated from this court in a broad range of cases. They extended the reach of Brown with landmark decisions on school integration, voting rights, employment discrimination affecting both blacks and women, rights of prison inmates and the mentally ill, and jury discrimination. The Four recognized that the courts alone could not get the job done, that it would take a commitment by all three branches of government. In applying the due process and equal protection clauses of the Fourteenth Amendment to unprecedented circumstances, however, they developed principles that Congress would incorporate into the landmark 1964 Civil Rights Act and 1965 Voting Rights Act, legislation that granted enforcement power to the executive branch and had a lasting social, economic and political impact on the American South.