The Supreme Court In Conference December 13, 1952

NOTES OF JUSTICES CONCERNING THEIR CONFERENCE DISCUSSIONS IN THE CASE OF BROWN et al. v BOARD OF EDUCATION OF TOPEKA

Conference of December 13, 1953

CHIEF JUSTICE VINSON: I am not sure what we should do today. It is 3:30 P.M.

#413 Bolling v. Sharpe (District of Columbia): There is a body of law in back of us on separate but equal. The District of Columbia statutes-1862 and later-were enacted close to the dates of the Civil War Amendments. The same men were in Congress then who passed the Civil War Amendments. However you construe it, Congress did not pass a statute determining the issue and ordering no segregation. It is hard to get away from that contemporary interpretation of the Civil War Amendments. Congress evidently did not want to pass this. Sumner's bill against segregation failed, and therefore the District of Columbia has had segregated schools for ninety years. Harlan's dissent in Plessy is careful not to refer to schools. That has significance, because Harlan was strong on other items and later wrote the Cumming case for this Court.

I don't see in the District of Columbia case how we can get away from this Court's long and continued acceptance of these patterns of Congress ever since the Civil War Amendments. As to having mixed school classes, I think that Congress has the power to act for the District of Columbia and for the states. It may act in the District either directly through the Board of Education, or bypassing a few statutes. I don't think much of the idea that it is for Congress and not for us to act.39 If they do not act, this leaves us with it. It would be better if Congress would act. Congress may act for the District of Columbia, but probably will not act for the states. (They will probably be content in the District of Columbia to leave it to the board of education.) In the absence of congressional action, we have the commerce clause cases and these cases. .

#101 Briggs v. Elliott (South Carolina): The facilities are equal here. It took some time to make them equal. Thurgood Marshall says that it will be necessary to state a time for it to be made effective. The abolition of the separate school system in the South raises serious practical problems. In Sipuel and McLaurin we said that the right was personal and that they should get in right now, but it is difficult when there are large numbers. The situation is very serious and very emotional. We can't close our eyes to the seriousness of the problem in various parts of the country, although the problems are hotter in some parts of the country than in others. We face the complete abolition of the public school system in the South. It may be easy to say that the result is of no consequence to but I think us, that it is. It is said that we should not consider this, but I can’t throw it all off. We can't avoid taking it into consideration. Boldness is essential, but wisdom is indispensable.

#448 Gebhart v. Belton (Delaware) and Davis v. School Board (Virginia): The schools here are not equal at the moment, but they are moving toward it. I am inclined toward giving these states the time to make their facilities equal.

#101 Briggs v. Elliott (South Carolina) and #8 Brown v. Board of Education (Kansas): The history of the South Carolina case shows what time can do. Where you have a large percentage of colored people, it is hard to say that they cannot be equal. The Kansas Judge said that it is detrimental to Negroes to be segregated. Virginia was to the contrary. In Virginia, the finding was that the court could not say that the proof on that side was preponderant, and that commingling would bring on humiliation and so forth. Affirm?

BLACK: To start off, I am not at all sure that Congress is barred by the same limitations as the states. Congress can legislate where the states cannot, for states are bound by the Fourteenth Amendment. I see an anomalous result of permitting segregation in the District of Columbia and not elsewhere under the equal protection clause. (All parties seem to have felt that they were all the same.)

First, we must decide: is segregation a per se violation of the Fourteenth Amendment? Marshall understates and the others overstate the effect. of such a ruling." It would be serious and dramatic. There will be serious incidents and some violence if the Court holds segregation unlawful. States would probably take evasive measures while purporting to obey. South Carolina might abolish its public school system. One of the worst features is that the courts will be on the battle front. It will be law by injunction and contempt, and I don't believe in law by injunction.

If we had decided this case right after passage of the Civil War Amendments, I believe that we would have held originally that the way to enforce this was through Congress. Now, however, the courts have taken jurisdiction. I can1t draw a rational distinction between this case and other cases under the Fourteenth Amendment as respects a self-executing agreement. If we can declare confiscation or other laws unconstitutional) then we can do the same with segregation.

I am driven to the segregation issue with the knowledge that it will mean trouble. I am compelled to say for myself that I can't escape the view that the reason fur segregation is the belief that Negroes are inferior. I do not need books to say that.

I am also compelled to say for myself that the Civil War Amendments have as their basic purpose the abolition of such castes, and to protect the Negro against discrimination on account of color. And that is what is behind the opposition now. Southerners always say that segregation is meant to prevent the mixture of the races. This is the idea behind the southern view that the mixture of races is thought to be very dangerous and weakens the white race.

If I have to meet it, I can't go contrary to the truth that the purpose of these laws is to discriminate on account of color. The Civil War Amendments were intended to stop that. I have to say that segregation of itself violates the Constitution, unless the long line of decisions and state decisions prevents such a ruling. I don't think that Congress went as far as they thought the Civil War Amendments went. They didn't go all the way that was intended in the old cases. I have to vote that way, to end segregation. And if a majority votes the other way-to segregate and to preserve equal and separate-then there should be leeway for changes, if equal and separate is going to be the rule, then wide latitude should be given to findings in the state courts. I reverse.

REED: I approach this problem from a different view than Black. There are some who want to hold Negroes down and deprive them of educational equipment. I know that some desire to keep the Negro as a laborer. The race came out of slavery a short time ago.

The state legislatures have informed views on this matter. Negroes have not thoroughly assimilated. There has been some amalgamation of the races, as shown by the counsel who appeared here. States are authorized to make up their own minds on this question.

We must try our best to give Negroes benefits. We must start with the idea that there is a large and reasonable body of opinion in various states that separation of the races is for the benefit of both. Then there is the determination of when the changes are to be made.

There has been great, steady progress in the South in the advancement of the interests of the Negroes. States should be left to work out the problem for themselves. It is the right of the states to improve Negroes' status. Think of the advancements. transportation, voting, FEPC, and so forth. Segregation is gradually disappearing. This applies to both North and South. It is optional in Kansas, Kentucky, and other states. We don't have the same problems in Kentucky as in the South. The facilities are not equal in Kentucky, but they are better than they are in the South.

I agree that the meaning of the Constitution is not fixed. What was due process in 1860 may not be due process today-and that is going forward. To say that today, we would have to reverse what we have said before, and say that segregation is no longer permissible.

Why not let it go on?

When will there be changes? If the body of people think that it is unconstitutional. I cannot say that the time has come when we can say that seventeen states are denying equal protection or due process. We must allow time, Segregation in the border states will disappear in fifteen or twenty years. Ten years in Virginia, perhaps. Ten years would make it really equal. Every year helps. In the Deep South, separate but equal schools must be allowed. I uphold segregation as constitutional.

FRANKFURTER: I am very glad that Vinson started with the District of Columbia case. The District of Columbia raises very different questions than the state cases. It just shows the different efforts of people. I do not agree with Hugo Black that the states are more limited than Congress.

We need an effective way to deal with this, and we should set all of these cases down for reargument on specific issues. This is not a delaying tactic-this is not an unjustifiable delay. It is important when we decide. Brandeis said that the most important thing of this Court is what we do not do!

The District of Columbia is the nation’s capital. I am prepared to vote today that segregation in the District of Columbia violates the due process clause. I have never had close living relation to Negroes, but I have had much to do with their problems. I was once assistant counsel to the NAACP. I also belong to the Jewish minority. I am familiar with the experiences of colored people here, especially Coleman, one of my old law clerks. It is intolerable that this government should permit segregation in D.C. life. But I deprecate the use of needless force in changing this-it is important for the government that will be responsible to enforce it. Still, it is very important that the District of Columbia case be set down for reargument after the new administration comes in. It is a gain in law administration if it comes not as a pronouncement of coercive law; but with the help of the new administration that has promised to change the law here in the District. The due process clause brings in special points, and I would set the case down for special consideration, for shaping decrees and for the District of Columbia to address themselves to the decree. Set down very specific questions, such as the manner in which it would be carried out and so forth. We should hold all of the cases. The social gains of having them accomplished with executive sanction would be enormous.

As to the states, these are equity suits. They involve imagination in shaping decrees. I would ask counsel on reargument to address themselves to the problems of enforcement. I favor reargument in the state as well as the District cases. We can't treat these cases as sociological questions.

Few things are more dangerous than the familiar. How does Black know what the framers of the Civil War Amendments meant? I have read all of its history, and I can't say that it meant to abolish segregation. You cannot say from the legislative history that they meant to abolish segregation; there are many views. You cannot fairly say, yes these fellows meant to abolish segregation," or vice versa. The proponents used evasive words so as not to stir the issue. I don't see anything in the United States Code or in the equal protection clause on the basis on which such a decision could be made. That leads me to say that must look only on physical things. It is arbitrary to say that "equal rights" means physical things. If Kansas were here alone, I would just reverse on the findings of the trial court and say that they applied the wrong legal principle. I would ask counsel that, assuming this wording of law, can they say that this Court has long misread the Constitution?

What justifies us in saying that what was equal in 1868 is not equal under law? Equal protection does not mean what was equal, but what is equal? I would ask counsel to demonstrate what it is that justifies their saying that what has gone on before is all wrong.

I conclude nothing going to the merits. I can't say that it is unconstitutional to treat a Negro differently than a white, but I would put all of these cases down for reargument.

'The further maturing process would be highly desirable. The cases should be set down for reargument, say, 1st March.

DOUGLAS: Segregation is a very simple constitutional question for me. No classification on the basis of race can be made. I can't avoid the same conclusion that Hugo has reached in the state cases, that states can't classify by color for education. The Fourteenth Amendment prohibits racial classifications, and so does the due process clause of the Fifth Amendment. Segregation is unconstitutional, whether by the states or Congress. A Negro can't be put by the state in one room because he's black and another student put in the other room because he's white. The answer is simple, though the application of it may present great difficulties. Can't play the factor of time. It will take a long time to work it out. I would not mind setting down the D.C. case for reargument in March, but not the others. Not rush pronouncements.

JACKSON: If we are going to take turns, it is better not to take a vote now. I would start with these cases as a lawyer would. I find nothing in the text that says this is unconstitutional Nothing in the opinions of the courts say that it is unconstitutional. Nothing in the history of the Fourteenth Amendment says that it is unconstitutional. There is nothing in the acts of Congress either way. On the basis of precedents, I would have to say that it is constitutional. Marshall's brief starts and ends with sociology, not legal issues. I don't know the effect of segregation, or the reason for it. You can't cure this situation by putting children together.

I was never really conscious of racial problems until I came to the District of Columbia. We had segregation in Jamestown, New York in the 1860s and 1890s. White lawyers (Catholics and Jews) would not let Negroes use books in the library (ordered library out of the courthouse).

I won't be a party to immediate unconstitutionality-to say that it is unconstitutional to practice segregation tomorrow. It will be bad for the Negroes to be put into white schools. But segregation is nearing an end. (If two or three deaths on the Court-this will come-it is no way out.) We should perhaps give them time to get rid of it, and I would go along on that basis. l would not object to such a holding with a reasonable time element. These are equitable remedies that can be shaped to the needs. If we can work it out so we can say segregation "bad"--under approval of the Constitution and with the support of Congress -- and that it must be done in a certain period. I would suggest that the District of Columbia case can be reargued, and that the Senate and House Judiciary Committees be asked to file briefs and argue. If stirred up to a point, they may abolish it.

BURTON: They have the right to come to us. We have the Constitution. I agree that this should be done in as easy a way as possible. Sipuel and Sweatt crossed the threshold of these cases, and we must he guided by them. We must not depart from these cases. Education is more than buildings and faculties. It is a habit of mind. With the Fourteenth Amendment, states do not have the choice--segregation violates equal protection. The total effect is that separate education is not sufficient for today's problems. It is not reasonable to educate people separately for a joint life.

The Fifth Amendment also bars segregation. But we can use time. I would give plenty of time in this decree. I would go the full length to upset segregation. I reverse. I will support reargument in the District of Columbia case.

CLARK: I favor reargument in the D.C. case. The result must be the same in all of these cases. I will probably affirm in Delaware. In Texas, the problem is as acute as anywhere. The Mexican problem is more serious. Far more retarded. A Mexican boy of fifteen is in a class with a Negro girl of twelve. Some Negro girls get in trouble. If we delay action (is Bob's idea) it will help. Our opinion should give the lower courts the opportunity to withhold relief in light of troubles. I would be inclined to go along with that. Otherwise, I would say that we have led states on to believe that separate but equal is O.K., and we should let them work it out.

MINTON: The hour is late. We are confronted with a body of law that lays down separate and equal. We have chipped and chiseled it away with Sweatt and MeLaurin. Classification by race does not add up. It is not reasonable. It is invidious and it can't be maintained. Congress, in the District of Columbia, has authorized segregation-but it's not legal. Confrontation with the states is not final. There will be trouble, but this race grew up in trouble. The Negro is oppressed and has been to bondage for years after slavery was abolished. Segregation is per se unconstitutional. I am ready to vote now.

[The Justices ordered all five cases to be reargued. Attorneys were asked to address the historical question of whether the 14th Amendment was intended to end segregation, as well as the question of whether the courts have the authority to end segregation.]