Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court by Burns James Macgregor

Author:Burns, James Macgregor [Burns, James Macgregor]
Language: eng
Format: mobi
ISBN: 9781101081488
Publisher: Penguin
Published: 2009-06-25T04:00:00+00:00

IT WAS THIS conservative, cautious Supreme Court that confronted an egalitarian revolution sweeping across much of the country, spearheaded by the National Association for the Advancement of Colored People, whose strategy was to bypass the unresponsive political branches and to challenge racial discrimination aggressively through the courts. The Vinson Court had already faced up to specific cases of racial bias, in 1948 barring judicial enforcement of racially restrictive property covenants intended to prevent the sale of homes in white neighborhoods to African Americans. Two years later, in three cases decided on the same day, June 5, 1950, the court struck down segregation in an Oklahoma graduate school of education, a Texas law school, and in railroad dining cars. But hanging over these decisions was the grim visage of Plessy v. Ferguson’s “separate but equal” doctrine—the “South’s Magna Carta,” some called it—whose denial that “the enforced separation of the two races stamps the colored race with a badge of inferiority” had for decades distorted race relations in every aspect of Southern life.

So far the justices had evaded the broader issue of Jim Crow, agreeing with Frankfurter’s insistence that they “should not go out and meet problems.” The two school opinions had been unanimous because they were limited to barring segregation from graduate schools and because of the gross inequality of the facilities available to blacks. The justices could order desegregation not by overturning but by applying the “separate but equal” rule. But late in 1952 five cases from school districts around the country arrived at the court to challenge Plessy directly, by contending that even if black schools had equal resources, segregating children in public education violated the Fourteenth Amendment’s equal protection clause. The cases were consolidated as Brown v. Board of Education, the suit filed against the Topeka, Kansas, school district, where, because white and black schools were relatively equal in quality, the focus was on the fundamental principle of segregation. With Brown, the justices knew that the showdown had come. Vinson, who indicated that he was unwilling to overturn “long continued interpretations,” remarked enigmatically that “boldness is indispensable but wisdom is essential.”

Before the badly fragmented court could decide Brown, Vinson died, succeeded by a chief justice who did not think boldness and wisdom were irreconcilable. While new to the court, Warren was an experienced politician with an instinctive ability to herd fleas. At the start, with no more than five solid votes among the justices to abolish segregation in schools, he realized that only a unanimous court could make such a momentous verdict stick. In conference, he put the case against Plessy, pointing out that segregation was based on “a concept of the inherent inferiority of the colored race,” an idea that “in this day and age” was morally and constitutionally repugnant. He assuaged fears of upheaval in the South by promising an opinion that would produce “a minimum of emotion and strife.” The decision would apply only to schools, leaving the rest of Jim Crow, for the moment, intact.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.