Why Brown Still Matters
Judicial serendipity thus seems crucial to Brown's outcome. As the Court moves forward toward its May 17, 1954, decision of Brown, Kluger's focus on the nine Justices, and especially on Earl Warren, intensifies. Simple Justice presents Brown as the fortuitous achievement of the right man who was in the right place at the right time. Indeed, in Kluger's account, the Justices are the decisive actors, while in Tushnet's account the plaintiffs' attorneys, particularly Marshall, are crucial. As Tushnet puts it, "It was precisely the brilliance of Marshall's strategy that he forced the justices to a choice" concerning Plessy, "believing--correctly, as it turned out--that once he forced them to choose, they could make only one decision." The suggestion that there was "only one" possible outcome in Brown is utterly foreign to the historical tension that Simple Justice so persuasively portrays. For Kluger, not only was Brown's outcome in doubt until after Warren's arrival as Chief Justice but uncertainty continued right up to the very drafting of the decision, as Warren worked to persuade all of his colleagues to join in one unanimous opinion. For Tushnet, Brown's outcome was never in doubt; only the Justices' modest differences "over how to justify the result" they knew they were going to reach were really at issue.
In Tushnet's view, the crucial issue that preoccupied the Justices from late 1952 to 1954 was not Brown's constitutional merits but how a decision overturning Plessy could avoid imminent enforcement of school desegregation in the South. That primary concern led the Justices to order yet another round of rearguments, rather than issue an immediate remedial mandate, when Brown "I" was handed down. Twelve months later, in Brown "II," the Justices sent all five cases back to the lower courts in a brief opinion that did not mention "segregation," "desegregation" or "integration." Brown II reiterated that "racial discrimination in public education is unconstitutional," but it instructed the lower courts only "to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases."
"All deliberate speed" has become a deservedly notorious phrase, but criticism of that phrase diverts attention from the Brown Court's far more fundamental failure to articulate, or even think through, what the future of nondiscriminatory public education in previously segregated schools should entail. The Supreme Court's silence on that crucial point was a fatal error, for when the Clarendon County case returned to South Carolina, Circuit Judge John Parker shrewdly filled the gaping hole. Under Brown, Parker said, "a state may not deny to any person on account of race the right to attend any school that it maintains." However, so long as schools are "open to children of all races, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools." Pursuant to Brown, Parker explained, the Constitution "does not require integration. It merely forbids discrimination" and "forbids the use of governmental power to enforce segregation."
Tushnet notes that the lower federal courts "universally adopted" Parker's formulation, and his distinctions, in Kluger's words, "set a standard for evasiveness" for school districts across the South. Thanks to the Supreme Court's blindness, and Parker's assertiveness, "after Brown, the ultimate issue of principle was the meaning of Brown itself," as Tushnet aptly puts it. Whether or not the Constitution required "some substantial degree of integration" on the part of previously segregated school districts was a question that the Brown Court had failed to answer or even consider.
The Brown Court's fundamental failure to articulate an affirmative standard for public education's postsegregationist future was as momentous a judicial mistake as any that the post-New Deal Court has ever made. It opened the door to Judge Parker's wily artifice, and the Court's post-1955 evasion of most, though not all, of the ensuing decade's most pressing desegregation cases allowed the Parker formulation to hold sway largely unchallenged for more than ten years.
Only in 1968, thirteen years after Brown II, did the Supreme Court finally return in a definitive fashion to the unanswered questions about Southern school desegregation it had forsaken in 1955. The Court's virtual abandonment of Brown's meaning during those intervening years allowed the white South to evade any implementation of meaningful change for well over a decade. Indeed, it was only after Circuit Judge John Minor Wisdom of Louisiana declared that Parker's formulation was "inconsistent" with Brown II's unspoken mandate that districts "provide an integrated school system" that the Supreme Court embraced Wisdom's response to the crucial question that Brown had failed to address clearly.