The 'Fifth Circuit Four'

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.

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