It Could Have Gone the Other Way

In the fifty years since it was decided, Brown v. Board of Education has become a legal icon. The rightness of this famous decision invalidating racial segregation in public schools is no longer open to debate. Conservative legal commentators and prospective judicial nominees still criticize many landmark decisions of the Warren Court, but not Brown. No constitutional theory or theorist failing to support the result in Brown will be taken seriously today.

Such was not always the case. A Gallup poll taken the summer after Brown revealed that nearly half of all Americans opposed the decision. In the 1950s, eminent judges and law professors--including the great jurist Learned Hand--questioned whether it was rightly decided. Perhaps most surprisingly, the Justices who decided the case had grave doubts themselves whether invalidating school segregation was legally justified.

In a memorandum dictated the day Brown was decided, Justice William O. Douglas observed that a vote taken after the case was first argued in 1952 would have been "five to four in favor of the constitutionality of segregation in the public schools." Justice Felix Frankfurter's head count was only slightly different: He reported that a vote taken at that time would have been five to four to overturn segregation, with the majority writing several opinions.

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