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Schoolings in Equality

Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality By Richard Kluger (Alfred A. Knopf, 865 pp., $45) Click here to purchase the book.From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality By Michael J. Klarman (Oxford University Press, 655 pp., $35) Click here to purchase the book. I. On May 17, 1954, the Supreme Court announced its decisions in Brown v. Board of Education and Bolling v. Sharpe. Brown is the title given to a group of lawsuits that challenged segregation in Kansas, South Carolina, Virginia, and Delaware. In Kansas, a state law permitted cities of more than fifteen thousand persons to maintain separate school facilities for Negro students and for white students. In the other three jurisdictions, state statutes and constitutions required racial separation in schooling. In all four cases, state court judges and lower federal court judges upheld the legitimacy of racial segregation under the federal constitution. They believed that separating people on the basis of race posed no constitutional problem so long as officials provided equal facilities to those whom they separated. The key case that validated the “separate but equal” formula was Plessy v. Ferguson, which was decided in 1896. The Supreme Court held in Plessy that the federal constitution permitted Louisiana to require whites and colored people to occupy “equal but separate” railroad cars. The colored litigant in the case argued that even if racially separated railway cars were equal in terms of their tangible qualities, the very act of racial separation imposed an illicit, caste-like stigma on colored people. Rejecting this argument, the Court asserted that if segregation stamped the colored race with a badge of inferiority, “it is not by reason of anything found in the [law], but solely because the colored race chooses to put that construction upon it.” Numerous courts echoed this refrain. Separate but equal segregation, the argument went, did not represent an invidious discrimination. True, pursuant to segregation laws blacks might be prevented from interacting with whites on trains, in prisons, in marriage, or in schools; but whites were similarly prevented from interacting with blacks. Whites and blacks were thus subject to the same law and to equal treatment. Decades later, the lower courts in the Brown cases uniformly re-affirmed the validity of segregation, but they reached different conclusions regarding whether authorities had failed the equality aspect of the “separate but equal” formula and, if so, what appropriate remedies should ensue. In the Kansas case, a lower court ruled that while segregation had a detrimental effect on Negro children, the black petitioners were entitled to no relief, because the colored schools and the white schools were substantially equal in terms of tangible endowments such as facilities and teacher qualifications. In South Carolina, a lower court found the Negro schools to be inferior to the white schools and ordered officials to begin equalizing facilities; but the court refrained from ordering the admission of blacks to white schools even temporarily during the period of the judicially mandated equalization process. The same occurred in Virginia. In Delaware, the story was somewhat different. There state court judges found inequalities between white and colored schools and ordered that colored students be admitted immediately to the white schools, though they also indicated that the state might be able to revert to segregated schooling after equalization was accomplished. The first substantive issue that the Supreme Court considered in its Brown opinion was whether, as originally understood, the Fourteenth Amendment prohibited racial segregation in public schooling. The justices concluded that the historical record was inconclusive. Given the prominence of what we now call originalism--the idea that judges ought to interpret constitutional texts by reference to the original intent of the texts’ Framers--this aspect of Brown warrants special attention. By addressing first the question of the Framers’ intent and suggesting that a clear answer would be important, if not decisive, the Court reinforced the authority of originalism in constitutional interpretation. But by finding inconclusiveness in a record that strongly suggests that most of the central backers of the Fourteenth Amendment did not mean to prohibit segregation in schooling, the Court signaled, thankfully, that it would not be shackled by the specific racial views of men long dead. In an op-ed piece that appeared in The New York Times to commemorate the fiftieth anniversary of Brown, Justice Stephen G. Breyer declared approvingly that in the school desegregation opinions Chief Justice Earl Warren and his colleagues had finally read the Fourteenth Amendment “as the framers who wrote [those words] immediately after the Civil War meant them to be read, as offering the same protection to citizens of every race.” But if this were true, how does one explain, among other things, the Fifteenth Amendment, which expressly prohibits the states from excluding people from the franchise on a racial basis? Contrary to what Justice Breyer claims, and contrary to what the Brown Court insinuated, most of the Framers and the ratifiers of the Equal Protection clause of the Fourteenth Amendment surely did not intend or foresee that their handiwork would be invoked to prohibit racial segregation in public schooling. After examining the history of the Fourteenth Amendment, Justice Warren steers the Brown opinion to a confrontation with the Supreme Court’s own prior case law regarding the “separate but equal” doctrine. Here again Warren shrugs off the confining grip of history. “We cannot turn the clock back ... to 1896 when Plessy v. Ferguson was written,” he declares. “We must consider public education in the light of its full development and its present place in American life.... Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.” Distinguishing the place of public education in earlier times from its place in the middle of the twentieth century, Warren observes: Today, education is perhaps the most important function of state and local governments. . . . It is required in the performance of our most basic responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. And then Warren asks the great and urgent question: “Does segregation of children in public schools solely on the basis of race ... deprive the children of the minority group of equal educational opportunities?” He answers in the affirmative, apparently relying on two considerations. First, alluding to its most recent school segregation decisions, he notes that the Court had begun to take into account more than the tangible attributes of institutions and services in determining whether educational opportunities were being allocated equally to whites and people of color. Second, he avers that the very act of separating colored pupils from their white peers hurt them socially and psychologically: “To separate [Negro children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” The Court embraces as “well stated” the factual finding of a lower court that had observed that “segregation of white and colored children in public schools has a detrimental effect upon the colored children ... for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of the child to learn. Segregation with the sanction of law ... has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.” Declaring that this finding was amply supported by “modern authority,” Warren cites in a footnote--the famous footnote 11--a list of psychological and sociological studies, including Kenneth B. Clark’s “Effect of Prejudice and Discrimination on Personality Development” and Gunnar Myrdal’s An American Dilemma. He then expressly states that “any language in Plessy v. Ferguson that is contrary to this finding is rejected.” Although Warren has been harshly criticized by many observers for “relying” upon dubious, or at least controversial, social-scientific studies, his opinion discloses no such reliance. His reference to Clark and the others was supplementary, an extra- legal confirmation of his legal conclusion that “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” The Court’s opinion in Bolling v. Sharpe addressed the constitutionality of segregation in the District of Columbia. The Court dealt with this case separately because, unlike the controversies in Brown that arose from segregation by states, the controversy in Bolling arose from the imposition of segregation by the federal government. In Brown, the plaintiffs charged that segregation violated the Fourteenth Amendment. But the Fourteenth Amendment applies only to states: “No state shall ... deny to any person within its jurisdiction the equal protection of the laws.” So the Negro plaintiffs in Bolling invoked instead the Fifth Amendment, which provides in pertinent part that “no person shall ... be deprived of life, liberty, or property without due process of law.” In response, Warren altogether ignored the originalist question that he skirted in Brown. After all, it is certainly implausible that the Framers and the ratifiers of the Fifth Amendment meant to prohibit racial discrimination in public schooling. Working in the late eighteenth century in a polity pervaded by racism, the architects of the Bill of Rights disclosed no desire to impose upon the federal government requirements of racial neutrality. But still Warren forges ahead. Maintaining that while “equal protection” and “due process” are not interchangeable phrases, he adds that both stem “from our American ideal of fairness.” He then declares that racial segregation is presumably illicit because “classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect.” More, he asserts that the racial classification at issue is not just presumably illicit but actually unlawful: Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause. And for good measure Warren adds that, in view of Brown’s prohibition of state-enforced racial segregation in public schools, “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. “ At the end of a court decision in which plaintiffs prevail, the tribunal usually announces the relief to which the plaintiffs are entitled. In Brown and Bolling, however, the prevailing plaintiffs were told that owing to the wide applicability of the rulings and the variety of local conditions to which the rulings would be applicable, the Court thought it best to schedule a hearing devoted to argument regarding an appropriate remedial order. After listening to three days of argument, the Court issued on May 31, 1955 a decision on remedy that is often referred to as Brown II. In that decision, the Court expressly disclaimed any willingness to retreat from its previous decisions simply because of disagreement with them. But the Court stressed the importance of permitting equitable flexibility in implementing its judgments. It recognized “the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis.” But it also maintained that creating non-segregated schooling would entail solving a variety of local problems. It declared that in carrying out the transition from segregated to desegregated schooling, primary responsibility would be lodged in the hands of local educational authorities under the supervision of local federal judges. Those judges, the Court concluded, should require that defendants make a “prompt and reasonable start toward full compliance” with Brown. Once such a start has been made, however, the Court conceded that lower federal judges “may find that additional time is necessary to carry out the ruling in an effective manner.” Remanding the Brown and Bolling cases to the courts from which they had arisen, the Supreme Court instructed its subordinate brethren to “enter such orders and decrees ... as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.” II. Brown I, Bolling, and Brown II are all notably brief; in the United States Reports, which contain all of the published orders of the Supreme Court, the three cases together take up only twenty-three pages. By contrast, Dred Scott v. Sanford, in which the Court ruled in 1857 that blacks are ineligible for federal citizenship, takes up 240 pages, while Bakke v. Regents of the Universityof California, in which the Court ruled in 1978 that under certain conditions race may properly be taken into account in public university admissions, takes up 156 pages. But despite their brevity, their fame, and their significance, the school desegregation opinions remain largely unread, even by the well-educated. This unfamiliarity with the decisions facilitates loose, ignorant, sentimental talk that often inflates “the promise of Brown” and over-praises the supposed “eloquence” of Chief Justice Warren’s opinions for the Court. Eloquent these opinions are not. They offer neither a vivid explanation of why the Court had decided to invalidate a type of law that it had previously permitted nor a vision of what “due process” and “the equal protection of the laws” would entail in a decent, multi-racial democracy. Although Warren refers to Plessy in Brown, he refrains from ever mentioning the decision’s lone dissenter, Justice John Marshall Harlan. Harlan, a former slaveholder, scoffed at the notion that segregation represented an innocent racial distinction as opposed to an invidious racial discrimination. “Everyone knows,” he wrote, “that the [segregation] statute in question had its origins in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons.” Nothing in Brown or Bolling comes close to matching Harlan’s forthright articulation of what segregation meant and propagated: The destinies of the two races . . . are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? Nothing in Brown notes the tragic accuracy of Harlan’s dire prediction. And nothing in Brown alludes to the why of segregation: to the basic and sordid facts of who was doing what to whom; to the fact that segregation clearly had the intended effect of massively stigmatizing blacks; to the fact that segregation was imposed upon blacks by whites, usually after blacks had been driven out of the electoral system by coercion, fraud, or terror. In the most famous and celebrated race-relations judicial rulings of the twentieth century, there is notably little elaboration of the ugly history of American race relations. The Court makes reference to “our American ideal of fairness” and claims, laughably, that invidious racial classifications are “contrary to our traditions”; but slavery goes unmentioned, and neither white supremacy nor any synonymous expression makes an appearance. The Court does briefly note that prior to the birth of the Fourteenth Amendment some states outlawed educating Negroes. But beyond this brief allusion the Court is notably reticent about the brutal subordination of the African American.   Of course, eloquence is not everything. In the oral arguments in Brown and Bolling, the most well-spoken advocate was John W. Davis, the Wall Street lawyer (and former presidential candidate, member of Congress, and ambassador to Great Britain) who was the leading attorney for the segregationists. Nor is candor in all circumstances a virtue; obfuscation, sometimes referred to euphemistically as “diplomacy,” has its uses. Warren perceived rightly that a part of the price for obtaining a unanimous Supreme Court ruling invalidating de jure segregation in public schooling would be an opinion crafted carefully to avoid telling the full truth about the Jim Crow regime. That Warren cared about public relations is beyond dispute. When he circulated to his colleagues near-final drafts of Brown and Bolling on May 7, 1954, he wrote that he sought to produce opinions that would be “short, readable by the lay public, non- rhetorical, unemotional and, above all, non-accusatory.” Narrowness was also part of the price for unanimity. In this season of commemoration, some commentators write as though Brown and Bolling offered an assurance of racial equality writ large. In reality, these cases address themselves expressly only to segregation in public schooling--not to segregation generally. Indeed, by emphasizing the importance of public education to its disposition of the cases, the Court implicitly suggested that it might continue to deem state-sponsored racial segregation permissible in other domains. The price for unanimity also involved signaling to segregationists that the Court was willing to go slowly in providing remedies to the plaintiffs. Just as lower court judges told Negro petitioners prior to Brown to wait for a remedy when it was determined that school officials had failed to satisfy the constitutional requirements of “separate but equal,” so, too, did the Supreme Court tell Negro plaintiffs subsequent to Brown to await a remedy that would effectuate their new constitutional right. That was the real message behind the Court’s instruction to judges to grant relief “with all deliberate speed.” In jurisdictions in which local officials were willing to countenance immediate desegregation, Negro plaintiffs quickly enjoyed the benefits of their struggle in the courts. But in jurisdictions in which local officials were recalcitrant, delay and evasion robbed plaintiffs of the opportunities to which they had been adjudged to be entitled. Perhaps the same result would have obtained no matter how the judgments were garbed linguistically. Still, the rhetoric of Brown II facilitated stalling by advising authorities that, absent expressions of blatant defiance, courts need not demand anything more than a “reasonable start toward full compliance.” Prior to autumn 1960, not one of the 1.4 million black schoolchildren in Deep South states attended a desegregated school. By 1964, only about one southern black child in a hundred attended a desegregated school. Brown is thus emblematic of many of the progressive landmarks that dot the meandering course of American race relations. On the one hand, its limitations mock the optimistic, congratulatory story that most Americans tell themselves about their nation. On the other hand, it represents an upward advance in the moral, political, cultural, and legal life of the United States. Measured against the baseline of previous rulings, Brown and Bolling, for all their deficiencies, clearly warrant celebration. They belatedly but finally put constitutional law on the side of those challenging de jure segregation. III. For those who wish to read in one volume a learned and enthralling narrative that features the key actors in the school desegregation cases, there is nothing like Richard Kluger’s magisterial book. First published in 1975, Simple Justice has recently been enlarged and re-issued. It begins with a moving depiction of one of Kluger’s heroes: Before it was over, they fired him from the little schoolhouse at which he had taught devotedly for ten years. And they fired his wife and two of his sisters and a niece. And they threatened him with bodily harm. And they sued him on trumped-up charges and convicted him in a kangaroo court and left him with a judgment that denied him credit from any bank. And they burned his house to the ground while the fire department stood around watching the flames consume the night. And they stoned the church at which he pastored. And fired shotguns at him out of the dark. But he was not Job, and so fired back and called the police, who did not come and kept not coming. Then he fled... until he was across the state line. Soon after, they burned his church to the ground and charged him, for having shot back that night.... So he became an official fugitive from justice. In time, the governor of his state announced they would not pursue this minister who had caused all the trouble, and said of him: Good riddance. All of this happened because he was black and brave. And because others followed when he had decided the time had come to lead. The man to whom Kluger refers is Reverend Joseph Albert DeLaine, the leader of the black community effort in Clarendon County, South Carolina, which gave rise to one of the Brown cases, a lawsuit named Briggs v. Elliott. One of fourteen children fathered by a pious clergyman in the African Methodist Episcopal Church, DeLaine overcame penurious circumstances and white hostility to obtain an education that was capped in 1931 by a degree in theology from Allen University. For about a decade and a half, he established a reputation as a hardworking public school teacher and an upstanding preacher who served as the pastor of a variety of remote rural parishes. Then, in 1947, DeLaine encountered a man who transformed his life. He listened to an address by Reverend James M. Hinton, the president of the South Carolina branch of the National Association for the Advancement of Colored People (NAACP). Hinton bemoaned the disgraceful condition of public education for blacks, particularly the blatant inequities imposed upon Negroes by white officials. Hinton declared that whites purposefully deprived blacks of educational resources in order to keep them in their “place” as hereditary serfs. He asserted that Negroes in other states were beginning to rise up and to successfully challenge their mistreatment. He challenged South Carolina’s Negroes to join this effort, and suggested that inequalities in bus transportation would be a good starting point. Hinton’s words resonated with DeLaine, who had long yearned to confront the humiliating racial restrictions that had become an increasingly chafing presence in his life. The reference to bus transportation especially rang a bell. In Clarendon County, white authorities had allocated thirty buses for the white children and none for the black children. DeLaine sought some relief from the local superintendent of schools, a Presbyterian minister, but was met with a flat rejection. He then sought someone who would be willing to file a lawsuit, and approached Levi Pearson, a farmer with three children. At great personal risk, Pearson agreed to sue for better treatment. He was quickly targeted for economic reprisal; white-owned stores and banks cut off his credit, and haulers refused to handle his timber. Much worse than the financial hardship, however, was the fact that Pearson’s sacrifice was rendered worthless by the error of a local attorney who neglected to discover until too late that the location of his client’s property disqualified him from suing the district in which his children attended school. This misstep was a cause for merriment on the part of white authorities such as the local state senator, who was heard to exclaim that “our niggers don’t even know where they live.” Despite the setback, DeLaine pressed ahead. He received encouragement from an attorney named Thurgood Marshall, who assured him that the NAACP would support his efforts if he was able to find twenty people willing to sign up as plaintiffs in a thoroughgoing attack against segregated schooling. DeLaine found the twenty, the first of whom, alphabetically, was Harry Briggs, a thirty- four-year-old Navy veteran and the father of five children. The white community immediately put intense pressure on Briggs, DeLaine, and anyone else who supported the new lawsuit. When Briggs refused to remove himself as a plaintiff, the owner of the filling station at which he had worked for fourteen years fired him. Whites asked Briggs’s wife to prevail upon him to abandon the lawsuit, and when he remained steadfast, the owner of the motel at which Mrs. Briggs worked as a chambermaid fired her. Officials attempted to buy DeLaine’s cooperation by offering him a position as a principal along with certain other minor concessions he could use to pacify his aroused constituency. When DeLaine rejected the bribes, officials fired his wife and his niece, and began to subject him and his followers to an increasingly ominous campaign of intimidation. But the blacks stood their ground. Instead of scaling back their protest, they broadened it. Whereas initially they merely sought better treatment under segregation, their lawsuit developed into an attack upon segregation itself. Kluger’s detailed descriptions of the plaintiffs in the school desegregation cases--their backgrounds, their ties to their communities, their aspirations, their sacrifices--are his most valuable contribution to the Brown literature. The plaintiffs in Brown are often either rendered invisible by commentators or depicted as mere “extras” in a drama starring Earl Warren and, to a lesser extent, Thurgood Marshall. Kluger rightly begins his book by placing the plaintiffs at center stage. By doing so he underlines the fact that the school desegregation cases emerged not only from the labors of lawyers and Supreme Court justices, but also from the efforts of regular folk, many of whom were poor, vulnerable, and unlettered, but all of whom were determined to better their children’s prospects. Brown was not simply a legal declaration from on high. It was also a response to a moral demand from below. Kluger’s book is full of other masterfully rendered portraits, including vivid depictions of Warren and Marshall. In a chapter titled “Arrival of the Superchief,” Kluger describes with evident admiration Warren’s rise from humble origins, his career as a fair and effective prosecutor, and his tenure as a forward-looking governor of California prior to his nomination for the chief justiceship by President Eisenhower. Kluger reminds us that, as California’s attorney general and governor, Warren became “an unflinching advocate of oppressive tactics” insofar as he championed the internment of people of Japanese ancestry, including American citizens, during World War II. Obviously caught up in the hysteria of the times--there never emerged any appreciable evidence of Japanese or Japanese-American sabotage--Warren unqualifiedly lauded a racist government policy that was subsequently upheld by one of the most notoriously wrongful Supreme Court decisions of the twentieth century, Korematsu v. United States. Like several heroes of twentieth-century liberalism- -Franklin Roosevelt, Hugo Black, Walter Lippmann--Warren disgraced himself morally (though not in the eyes of most Americans) by blessing internment. Clearly, though, in Kluger’s view, Warren more than vindicated himself by his achievements as chief justice, particularly his success in creating unanimity in favor of Brown and Bolling. By the time Warren reached the Supreme Court, the desegregation cases had already been argued once. After the initial argument, in December 1952, the Court appears to have been split, with Justice Stanley Reed firmly committed to re-affirming the separate-but-equal formula, Chief Justice Fred Vinson leaning in that direction, and several others gripped by ambivalence. Then, in September 1953, Vinson died of a massive heart attack, which created the vacancy that Warren filled. (This reportedly prompted Justice Felix Frankfurter to quip that his colleague’s demise was the first evidence he had ever seen that there actually is a God.) Kluger shows that it was Warren who was most responsible for enabling his colleagues to become comfortable with the prospect of outlawing policies mandating the separation of the races in public schooling. He relates in exquisite detail the new chief justice’s sedulous and successful effort to create unanimity. The third of Kluger’s principal heroes is Thurgood Marshall--Harry Briggs’s attorney, the director of litigation for the NAACP Legal Defense Fund, and the man who became in 1967 the Supreme Court’s first black justice. By the mid- 1950s, Marshall had already become a legendary figure among blacks, who often referred to him as “Mr. Civil Rights.” Seemingly ubiquitous and indefatigable, Marshall battled racial injustices of all sorts. In Morgan v. Virginia in 1946, he helped to persuade the Court to re-affirm that the Commerce clause of the federal constitution prohibits states from requiring racial segregation in interstate transportation. In Patton v. Mississippi in 1947, he helped to persuade the Court to reverse the conviction of a black man sentenced to death by a jury from which Negroes had been racially excluded. In Hurd v. Hodge in 1948, he helped to persuade the Court to prohibit judges from evicting homeowners who bought property covered by restrictive covenants that forbade the property from being sold to Negroes. Racial restrictions on schooling was the front on which Marshall fought most ardently, as an attorney and later as a judge. His first big civil rights victory, in 1935, arose from a case he brought on behalf of Donald Murray, a black man who sued authorities for refusing on account of his race to admit him to the University of Maryland Law School. At the time, Maryland’s one public law school was reserved for whites only. Officials claimed that they provided “separate but equal” facilities to black citizens of the state by giving those who wanted a legal education a stipend to attend some other law school that would admit Negroes--even if the school was out of state. Marshall argued that the state’s arrangement was inadequate. The Maryland courts agreed, and ordered Murray’s admission (a ruling that anticipated by three years an analogous decision by the federal Supreme Court). Murray was a milestone in Marshall’s career. It gave him special satisfaction because just a few years earlier he had wanted to attend the University of Maryland Law School, which was near his home in Baltimore. Barred from doing so, he attended Howard University Law School instead, where he graduated at the top of his class and fell under the sway of Charles Hamilton Houston, the mentor of an impressive roster of distinguished civil rights attorneys. Murray also reinforced Marshall’s reputation as a rising star; soon after his triumph in Maryland, Marshall moved to New York to work for the NAACP full time. In 1938, he became the organization’s legal chief. Murray also served as a model for a string of lawsuits that preceded Brown. In Murray, Marshall did not challenge the constitutionality of separate-but- equal schooling. Rather, he convinced the Maryland courts that the state had failed to provide equal schooling for blacks. He refrained from attacking the constitutionality of segregation itself--not because he accepted its validity, but because he recognized that a direct challenge would have been counterproductive. Although the separate-but-equal formulation was from its outset an oppressive imposition of caste denigration, in the 1930s it was still seen by the ascendant figures of the bench--including Oliver Wendell Holmes Jr., Benjamin Cardozo, and Louis Brandeis--as an innocent, or at least permissible, racial distinction. Throughout the 1930s and 1940s, Marshall tried to squeeze as much equality as possible from the separate-but-equal formula. He filed numerous lawsuits on behalf of black teachers who demanded the same pay as their similarly situated white peers. The aim of these suits was not only to win concessions on behalf of victims of racial discrimination. The aim was also to make the provisioning of dual systems of public education prohibitively expensive. White supremacists responded by continuing to maintain segregation on the cheap. To pre-empt the sort of ruling announced in Murray, several states created professional schools for blacks virtually overnight. Marshall challenged these responses, noting that these instant institutions were by no means equal to the established schools reserved for whites. In the most important of these cases, Marshall attacked the validity of actions undertaken in Texas to create an instantaneous law school for Negroes. In Sweatt v. Painter in 1950, the Court ruled that the new law school set aside for blacks was not only unequal in terms of readily quantifiable assets such as the size of the library and the faculty, but also because of non-quantifiable considerations such as the school’s reputation and the prestige of its alumni. Moreover, the Court recognized that a law school set aside for blacks could hardly be deemed the equal of a law school set aside for whites in a society in which whites constituted the vast majority of judges, attorneys, jurors, and legislators. Soon thereafter, Marshall went beyond arguing that certain schools set aside for blacks were inferior to those set aside for whites. In the Brown litigation he began to assert that the very act of officially setting aside “colored” schools would always and inevitably condemn them to an inferior status in the minds of the public (white and colored alike), since the very purpose of segregation was to stigmatize people of color--to declare them unfit to share facilities with whites. Kluger’s discussion of Marshall’s career displays the virtues that make Simple Justice such a splendid and illuminating narrative. These virtues include a willingness to note the weaknesses of a black hero. Hagiography remains all too prevalent in a lot of the writing and the talking about Marshall and the other African American greats of the civil rights revolution. But Kluger stays clear of sentimental hero-worship, offering a clear-eyed assessment of “Mr. Civil Rights. “ Kluger does not pretend that Marshall was a deep or a systematic thinker, but instead portrays him, accurately, as “a constantly engaging extrovert who used ideas as stepping-stones down a path of ever widening possibilities.” Kluger notes that while Marshall’s mentor Houston was a distinctly reserved and serious man--the sort that many whites resented and feared as an “uppity nigger”--Marshall typically adopted a “jes-folks,” one-of-the-gang style that endeared him to the Negro rank-and-file and made him acceptable to powerful whites who had not quite shaken their stereotyped image of “the good Negro.” Kluger points out, moreover, the striking and typically overlooked irony that Marshall’s verbal advocacy on behalf of his clients in Brown left much to be desired. Commenting on the argument that Marshall made to the Supreme Court in December 1953, Kluger notes mordantly that it was “one of his least creditable performances.” Far from besmirching his hero, Kluger’s candor adds credibility to his depiction of Marshall’s greatness. IV. Of all of the many books published recently on the occasion of Brown’s fiftieth anniversary, the most ambitious is Michael J. Klarman’s comprehensive history of federal race-relations law from the late nineteenth century until the early 1960s. From Jim Crow to Civil Rights chronicles challenges to the legitimacy of racial laws and practices that either excluded blacks from political participation in such commonplace activities as jury service and voting or relegated blacks to denigrated facilities--Negro schools, Negro hospitals, Negro asylums, Negro orphanages, Negro beaches. In the age of Jim Crow, some courtrooms even featured Negro Bibles. Klarman’s study is a major achievement. It bestows upon its fortunate readers prodigious research, nuanced judgment, and intellectual independence. And it provides an excellent counterpoint to Simple Justice in its approach and its conclusions. Simple Justice is a powerful narrative that brings a reader close to the lived experience of the struggle for desegregation. Kluger tells what his protagonists wore, what jokes they liked to tell, what they looked like, what they felt as they suffered under or tried to uphold or tried to topple the ugly pigmentocracy. Klarman offers a wider-angled perspective on race-relations law. He is interested not in portraying personal dramas but in explaining large-scale social trends. He addresses a variety of vexing questions, the most important of which are, in his view: “What factors explain the dramatic changes in racial attitude and practices that occurred between 1900 and 1950? What factors explain judicial rulings such as Plessy and Brown? How much did such Court decisions influence the larger world of race relations?” Kluger voices the conventional wisdom that Brown played a major role in galvanizing the mass mobilizations of the 1960s that gave rise to boycotts, sit- ins, marches, confrontations, and legislation, notably the Civil Rights Act of 1964 and the Voting Rights Act of 1965. He writes that “Brown launched the nation’s effort to rid itself of the consuming demons of racism,” that the mass movement for black advancement was “spawned by Brown,” that Brown was “the catalytic event that began the Second Reconstruction.” In its editorial on May 16, 2004, The New York Times echoed this view, remarking that “Brown kick- started the civil rights movement and began a slow but steady process of dismantling legal segregation.” Klarman argues, by contrast, that “Brown was less directly responsible than is commonly supposed for the direct action protests of the 1960s,” that it “did not fundamentally transform the racial attitudes of most Americans,” that it was more of a mirror than an engine of progressive social change. He even suggests that had the decisions in Brown and Bolling gone the other way on May 17, 1954, de jure segregation would still have been overcome soon: “deep background forces ensured that the United States would experience a racial reform movement regardless of what the Supreme Court did or did not do.” The demise of de jure segregation would have been accomplished without Supreme Court intervention and perhaps on better terms. Klarman attempts, in sum, to demote the historical importance of Brown. And this is part of a broader revisionist program, which includes Klarman’s insistence that scholars, particularly those in legal academia, pay more attention to limits on judicial power, to extra-legal sources of social change, to the extent to which court decisions are actually implemented on the ground, and to plausible alternative scenarios to the histories that actually unfolded. The intended effect of Klarman’s approach is to lower expectations of judicial rulings. In his view, courts, particularly the Supreme Court, typically receive too much blame and too much praise. In the conventional story of segregation, Plessy v. Ferguson is often depicted as the Bad Event that catalyzed the proliferation of Jim Crow racial separation throughout the South. Klarman argues that Plessy reflected rather than molded the dominant racial practices and ideas of its day. He contends, moreover, that even if the Court had acted differently, little would have changed on the ground. Court decisions, he repeatedly stresses, are not self- enforcing. In 1896, Southern whites would not have willingly complied with a judicial ban against segregation on the railways, and the federal government would have been unwilling or unable to enforce an anti-segregationist decree. “If southern public accommodation laws were nullities [during Reconstruction] when Republicans controlled state and federal governments and troops still occupied portions of the South,” he remarks, “how could a Court decision barring segregation have been enforced in 1896, when Democrats controlled every Southern state but one and troops had long since ceased to police southern race relations?” The same is true, Klarman argues, with respect to other features of the Jim Crow regime, including the racial exclusion of blacks from jury service and the ballot box. Even had the Court tried to enforce the Reconstruction Amendments, white supremacist practices would still have prevailed, given the vulnerabilities of the black population, the power and the self-righteousness of the segregationist whites, and the indifference or antipathy with which Negroes were viewed by the great mass of non-southern whites. Twenty years ago Benno C. Schmidt Jr. made much of the fact that, during the heyday of segregation, a Supreme Court headed by Edward Douglass White (a Louisiana veteran of the Confederate army and a foe of Reconstruction) invalidated a number of racist state laws. In Alabama v. Bailey in 1911, the Court struck down a statute aimed at black laborers that essentially criminalized breach of contract. In Guinn v. Oklahoma in 1915, the Court struck down a law that subjected certain persons (blacks) to literacy qualifications while exempting others (whites). And in Buchanan v. Warley in 1917, the Court invalidated a law that prohibited people of one race from buying residential property in areas reserved for those of another race. Klarman argues that these decisions signify only that the Supreme Court in the so-called Progressive era was willing to intervene against laws that either too obviously nullified federal constitutional provisions or too broadly encroached upon rights that white men enjoyed (such as buying or selling property wherever one could). According to Klarman, these rulings posed to racist practices merely formal objections that were easily sidestepped. His final verdict is harsh: “Substantively, they accomplished virtually nothing.” Klarman does seem to hold open the possibility of truly transformative Supreme Court rulings. His principal example is Smith v. Allwright in 1944, in which the Supreme Court held it to be a violation of the federal constitution for the Texas Democratic Party to limit membership and participation in party primaries only to “white citizens of the state.” This exclusion was crucial because in those days the Texas Democratic Party (and indeed the Democratic parties in all the former Confederate states) monopolized statewide electoral offices. Whoever won the Democratic primary for a governorship or a seat in the Senate automatically prevailed at the general election. To be excluded from the Democratic Party primary meant to be effectively disenfranchised. In 1935, the Supreme Court held unanimously that the exclusion did not violate the federal constitution because a political party is not an agency of the state but is instead a “private” association. Nine years later, in Smith, the Court reversed itself, holding that the right to participate in self-government could not be nullified by a state using the mere expedient of racially discriminatory private organizations. Klarman attributes to Smith an important role in permitting and encouraging black participation in southern politics. In 1940, only 3 percent of southern blacks were registered to vote, but by 1950 20 percent were registered, an increase for which Klarman largely credits the Court’s intervention. Smith, he writes, “launched a racial revolution in Southern politics.” But Klarman immediately complicates this assessment, noting that the changes wrought by Smith were possible only “in conjunction with supportive social and political conditions”--the militancy of black veterans returning from a war waged against Nazi racism, the enhanced physical and economic security of an increasingly urbanized black population, a rising tide of racial liberalism even among some whites in the Deep South. Still, he recognizes Smith as having provided in its own right a powerful push to black advancement. About Brown, Klarman is considerably less willing to allocate credit to the justices. The Brown Court, he declares, “pushed against an open door” in border states (Delaware, Maryland, West Virginia, Missouri) which “might have ... desegregated even without Court intervention.” And in the Deep South, Klarman notes, Brown itself brought about little desegregation. This was due in part to southern white intransigence, in part to inescapable limitations on judicial power, and in part to a Supreme Court that undercut itself by pandering to racist sensibilities. “Because Brown II supplied no clear mandate for action,” Klarman charges, “it seemed to invite evasion, which made voluntary compliance politically difficult” for those white authorities who might have acquiesced to a more definite remedial order from the Court. Assessing the effect of Brown on blacks, Klarman is again loath to give the Court credit. Although he concedes that Brown prompted some blacks to initiate follow-up litigation in pursuit of school desegregation, he argues that there is little evidence to support the claim that Brown and Bolling played a major role in prompting blacks to initiate or join the boycotts, sit-ins, marches, and other mobilizations of regular folk that constituted the heart and soul of the civil rights movement. Commentators often point to the Montgomery bus boycott as an indication of Brown’s power to inspire; but Klarman argues that just because the boycott followed Brown does not mean that it was animated by Brown. He rightly notes that there was a similar boycott in Tallahassee prior to the desegregation decisions, and that even after Brown the activists in Montgomery did not initially seek desegregation but only decent treatment under segregation. It took months of boycotting and the dynamiting of the home of Reverend Martin Luther King Jr. for the boycotters in Montgomery to attack segregation in court--a strange delay, given the supposed influence of Brown. Some observers, most notably David Garrow, charge that Klarman unfairly minimizes the significance of Brown and, more generally, the importance of judicial intervention on behalf of those vulnerable to oppressive prejudice. Are these critics right? It is difficult to give a clear answer, because of an unfortunate vagueness that blurs Klarman’s point. Initially it seems as though Klarman intends to posit a rather radical diminution of Brown’s standing in American history, but later he adopts a position that varies appreciably but not dramatically from the standard accounts. In the end, he agrees that Brown played an important, if hard to measure, role in the civil rights revolution. He notes that media coverage of Brown was “extraordinary”; that Brown “forced many people to take a position on school segregation”; that it “unquestionably motivated [blacks] to challenge segregation”; that “there is no denying Brown’s symbolic importance to African Americans”; that “Brown made Jim Crow seem more vulnerable,” a crucial contribution since “any social protest movement must overcome a formidable hurdle in convincing potential participants that change is feasible”; that “Brown raised the hopes and expectations of black Americans, “ and provoked a violent, lawless, segregationist reaction that, in turn, rallied many appalled whites to the side of desegregation. What distinguishes Klarman’s account is that the recognition he finally accords to Brown is offered so grudgingly. In analyzing Smith v. Allwright, he notes the extra-legal conditions that were conducive to that ruling and the practical limits that circumscribed its immediate ramifications. But he also acknowledges freely, without the crabbiness found in his analysis of Brown, that the ruling in Smith contributed importantly to the array of forces that enhanced the status of blacks and enlarged the domain of multi-racial democracy. He probably should have offered a similar acknowledgment, in a similar spirit, in his depiction of Brown. Still, Klarman’s parsimonious revisionism put me in mind of Richard Hofstadter’s remark that any good point should be able to bear the strain of overstatement. Klarman makes many, many good points in From Jim Crow to Civil Rights. His focus on ways in which extra-legal conditions facilitate or retard the possibilities available to lawyers and judges is a useful antidote to the legalism that continues to impede a realistic understanding of the judiciary as a policy-making organ of government. His insistence on assessing the actual consequences of judicial opinions is a useful antidote to an approach to legal history that assumes that rulings are actually implemented. His willingness to speculate about plausible alternatives to decisions actually made is a useful antidote to complacent determinism. His emphasis on Brown’s limitations is a useful antidote to the lingering romanticism that continues to shroud the Warren Court era. His effort to re-allocate credit for progressive change from officials to dissidents, from litigation to direct action, from the NAACP to the Student Non-Violent Coordinating Committee, is a useful antidote to cultural tendencies that much prefer celebrating Earl Warren’s Brown v. Board of Education to studying Martin Luther King Jr.’s Letter From a Birmingham Jail. An educated citizenry aroused by decent passions will usually provide a more secure foundation for freedom than judges to whom we defer too much.