Various thoughts on current events with an emphasis on politics, legal issues, sports, and whatever is on my mind. Emails can be sent to firstname.lastname@example.org; please put "blog comments" in the subject line.
I spoke about this case (cases really) earlier in the month after reading the oral argument transcripts of the first two arguments; there also was a third for Brown II: Relief. Noted that I might have some more to add and do have a few things. (One thing to add as well: taped oral arguments available at Oyez.com start sometime early in the Warren years. Chief Justice Warren has this voice that really adds authority as he opens the argument.)
The episode seemed to need to cover too much material in the time period and if anything did so with what seemed like a bit more time for calls than before. I say "seem" because maybe it was the same time but the span of time and material covered in a compressed time was a bit telling in this case. The episode had some clips with Linda Brown and Thurgood Marshall as well as something on the famous doll studies plus some photos used as exhibits in one case. But, I think it could have used a bit more in the video segments on the original plaintiffs.
I think it would have helped too if it was clearly noted that even John Harlan himself separated social and civil equality, putting public school integration in the first category. One of the guests noted that the ruling showed Harlan as a prophet, but this was someone that not only wrote an opinion a few years after Plessy that upheld segregated schools but didn't even honestly uphold the "equal" part of separate and equal. This is a case where the seemingly absolutist words of the Constitution are a bit less so, which is generally true, but a particular learning experience here.
(The guests did agree that Plessy reflected the times as compared to leading them -- the acceptance of segregation already long in place by that point. This recognition of the times a case is decided in is important as compared to an ahistorical treatment that relied on principle alone. Again, as Justice Souter noted in his Harvard address, the justices at the time probably thought their rule sensible and an advancement of the state of the law they grew up experiencing. After all, as applied to schools, even Justice Harlan accepted the rule that ultimately was seen as obviously wrong.)
It was also noted that it was Frankfurter's idea to use "all deliberate speed." He would be a logical person, especially after the death of Robert Jackson, to promote such a conservative go it slow approach. Still, reading the oral arguments, the Eisenhower Administration itself referenced that very concept when discussing proper remedies. The government's brief was also influential in the opinion's statement that original understanding was not conclusive one way or another - basically the re-argument was a useful delaying mechanism, the issue of remedy (part of the questions presented) to be re-argued in Brown II given now the parties knew the outcome.
One more thing that comes to mind was a reference to Parents Involved, including a quote from Chief Justice Roberts plurality opinion. They could have used a clip from the opinion announcement to use his own voice. C-SPAN was perhaps too polite to note that his appeal to Brown was a tad ironic since Thurgood Marshall himself supported race based affirmative action of the sort rejected here. He did not write the opinion, of course, but seems his views would be a tad notable. It also shows how later generations can interpret things differently. Using the opinion to reject race based affirmative action is not quite as much of a stretch as appealing to original understanding to oppose school segregation, but this passage from Brown has bite here too:
This discussion and our own investigation convince us that, although
these sources cast some light, it is not enough to resolve the problem
with which we are faced. At best, they are inconclusive.
Thus, the 4-1-4 ruling. Harder questions these days, I guess.