Hist B-61: THE WARREN COURT Midterm Study Guide

United States vs. Carolene Products Co. (1938)

← Facts of the Case
← A 1923 act of Congress banned the interstate shipment of "filled milk."
A manufacturer, indicted for shipping filled milk, challenged the law.
← Question
← Does the law violate the Commerce Power granted to Congress in
Article Section 8 and the Due Process Clause of the Fifth Amendment?

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← Conclusion
← The Court upheld the act. In this otherwise unremarkable case, the
Court planted the seeds for a new jurisprudence in a footnote four to
Stone's opinion for the Court. Stone gives a presumption of constitutionality
to economic regulation, saying The Court would no longer substitute its
views on economic policy for the views of Congress. Stone went further in
footnote four by cautiously asserting that certain types of legislation might
not merit deference toward constitutional validity. The most controversial
element in the footnote was the suggestion that prejudice directed against
discrete and insular minorities may call for "more searching judicial inquiry."
←
← “Regulatory legislation affecting ordinary commercial transactions is
not to be pronounced unconstitutional unless…it (does not) rest upon some
rational basis within the knowledge and experience of legislators”

- Changed the standard of review, harder to demonstrate that a statute is

unconstitutional.
- Produced an enormous tendency to the Supreme Court not striking
down laws.
- Counterpoint to New Deal position of government involvement.
- Creates a rift in the Supreme Court regarding differential preference of
property vs. civil rights, those in favor of across the board judicial
restraint vs. greater involvement.

Lochner v. New York (1905)

← Facts of the Case
← The state of New York enacted a statute forbidding bakers to work
more than 60 hours a week or 10 hours a day.
← Question
← Does the New York law violate the liberty protected by due process of
the Fourteenth Amendment?
← Conclusion
← The Court invalidated the New York law. The majority (through
Peckham) maintained that the statute interfered with the freedom of
contract, and thus the Fourteenth Amendment's right to liberty afforded to
employer and employee. The Court viewed the statute as a labor law; the
state had no reasonable ground for interfering with liberty by determining
the hours of labor.

Represents a shift from procedural to substantive due process

- Substantive: is the law fair? Concerns rights of the court not explicit in
the constitution. In this case, it was unclear whether the court had the
right to strike the statute down. Use of “substantive due process” to
strike down laws characterized the Lochner Era.

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 - Procedural: is the law fairly applied?

Justice Holmes’ dissent

- “This case is decided upon an economic theory which a large part of the
country does not entertain…a constitution is not intended to embody a
particular economic theory”
- Caveat “I think that the word liberty in the Fourteenth Amendment is
perverted when it is held to prevent the natural outcome of a dominant
opinion, unless it can be said that a rational and fair man necessarily
would admit that the statute proposed would infringe fundamental
principles as they have been understood by the traditions of our people
and our law…a reasonable man might think it a proper measure on the
score of health”
The decision became a hot topic for progressive criticism of the court.
Holmes’ opinion universally accepted as beacon for judicial restraint.

Fiss, Troubled Beginnings of the Modern State, pp. 3-5,6-8

- The Fuller Court was characterized as an instrument of the propertied
classes, dedicated to stopping the masses in their effort to curb big
business.
- Passed Lochner v. NY, as well as legislation invalidating protection of
union activity by applying the Sherman Anti-Trust Act to a labor
organized boycott. The court was greatly at odds with the current
progressive President, Theodore Roosevelt. 1912 election becomes an
occasion for a broad-based political and social movement to express its
anger and disappointment with the court. Roosevelt endorses the recall
of judicial decisions as a check upon the abuses of judicial power.
- Pound denounces the work of the court as excessively mechanistic and
divorced from changing economic and social realities.
- Holmes’ dissent provided a critique of the court from within.
- Following Fuller’s death, influential progressives like Charles Evans
Hughes and Louis D. Brandeis were appointed to the court, but the
attitudes of Lochner continued to prevail.
- Rift from Lochner in the 1930s: Following the Great depression, FDR
enacts an extensive program of state intervention. Court clings to
Lochner and invalidates some early New Deal legislation. Antagonism
between legislative and judicial branches intensifies. Roosevelt
threatens to appoint judges sympathetic to his viewpoint to the courts.
Proposed an increase in the size of the courts in his infamous court-
packing plan.
- Does not occur – in 1937 the court adopts a New stance, repudiating
Lochner (court reversal in consecutive years and the introduction of the
rationality test)

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West Virginia State Bd. of Ed. v. Barnette (1943)
← Facts of the Case
← The West Virginia Board of Education required that the flag salute be
part of the program of activities in all public schools. All teachers and pupils
were required to honor the Flag; refusal to salute was treated as
"insubordination" and was punishable by expulsion and charges of
delinquency.
← Question
← Did the compulsory flag-salute for public schoolchildren violate the
First Amendment?
← Conclusion – Jackson Majority, Frankfurter dissent
← In a 6-to-3 decision, the Court overruled its decision in Minersville
School District v. Gobitis and held that compelling public schoolchildren to
salute the flag was unconstitutional. The Court found that such a salute was
a form of utterance and was a means of communicating ideas. "Compulsory
unification of opinion," the Court held, was doomed to failure and was
antithetical to First Amendment values. Writing for the majority, Justice
Jackson argued that "[i]f there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of opinion or
force citizens to confess by word or act their faith therein."
← Jackson’s Majority Opinion
- The refusal of the children to participate in the ceremony did not
interfere with or deny rights of others to do so. (Evokes the clear and
present danger standard of the first amendment)
- The sole conflict rests between authority and the rights of the
individual
- Question of whether a compulsory salute and slogan is a legitimate
way to arouse loyalties. A person gets from a symbol the meaning he
puts into it. What is one man’s comfort and inspiration is another’s jest
and scorn.
- Compulsion is envoked even though silence does not present a clear
and present danger.
- “It is not necessary to enquire whether non-conformist beliefs will
exempt from the duty to salute unless we first find power to make the
salute a legal duty”
- Compulsion is not a valid means for achieving national unity
- Emphasizes the beneficial nature of diversity of opinion.

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← Frankfurter’s dissent
← - Applies the rationality test – says WV court passed the law for the
purpose of attaining food citizenship.
← - The constitutonal protection of religious freedom gave religious
equality, not civil immunity (freedom from conformity to law because of
religious dogma), otherwise individuals could pick and choose which laws to
abide by.
← - The flag salute is not an oath test, and does not dictate what children
and parents should believe.

Adamson v. California (1947)

← Facts of the Case
← Adamson was convicted in California of murder in the first degree.
During the trial, the prosecutor, in accordance with a California law, made
comments to the jury which highlighted Adamson's decision not to testify on
his own behalf.
← Question
← Is a defendant's Fifth Amendment right not to bear witness against
himself applicable in state courts and protected by the Fourteenth
Amendment's due process clause?
← Conclusion – Frankfurter concurring, Black dissent
← A divided Court found that the the Fourteenth Amendment's due
process clause did not extend to defendants a Fifth Amendment right not to
bear witness against themselves in state courts. (The Bill of Rights did
not apply to the states before the civil war) Citing past decisions such
as Twining v. New Jersey (1908), which explicitly denied the application of
the due process clause to the right against self-incrimination, and Palko v.
Connecticut (1937), Justice Reed argued that the Fourteenth Amendment
did not extend carte blanche all of the immunities and privileges of the first
ten amendments to individuals at the state level. In a lengthy dissent which
included a deep investigation of the Fourteenth Amendment's history, Justice
Black argued for the absolute and complete application of the Bill of Rights
to the states.
Significance: Frankfurter’s opinion that the 5th Amendment did not apply
to the states is one of the last of its kind before the slow process of
incorporating more and more of the Bill of Rights into the 14th Amendment.
Black’s Dissent: Black becomes the leader of the “due process revolution”
“The first 10 amendments were proposed and adopted largely because of
fear that Government might unduly interfere with prized individual liberties.
The people wanted and demanded a Bill of Rights written into their
Constitution. The amendments embodying the Bill of Rights were intended to
curb all branches of the Federal Government in the fieldstouched by the
amendments-- Legislative, Executive, and Judicial. The Fifth,Sixth, and
Eighth Amendments are pointedly aimed at confining exercise of power by

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courts and judges within precise boundaries, particularly in the procedure
used for the trial of criminal cases . . . My study of the historical events that
culminated in the Fourteenth Amendment . . . persuades me that one of the
chief objects that the provisions of the Amendment's first section,
separately, and as a whole, were intended to accomplish was to make the
Bill ofRights, applicable to the states.”

Shelley v. Kraemer (1948)

• Case: Shelley attempted to buy land subject to a covenant restricting

ownership to whites. A neighbor sued, the trial court denied relief
because the covenant hadn't been signed by all neighbors, the
Supreme Court of Missouri agreed with the suing party, the US
Supreme Court reversed.
• Supreme Court's reasoning (opinion by Vinson): the private agreement
for ownership restriction does not violate the 14th Amendment, but
the Supreme Court of Missouri did violate the amendment by granting
judicial enforcement to the agreement. The action of courts is
regarded as action by the State, therefore courts are limited by the
14th Am. The Amendment refers to "exertions of state power in all
forms", so even if the agreement was originally private, its
enforcement is public, thereby violating the Amendment.
Wermiel, “Rights in the Modern Era: Applying the Bill of Rights to
the States”
• Between 1925 and 1969, the Supreme Court ruled that most
provisions of the Bill of Rights function as check on the power of state
governments, and not merely as limits on federal authority.
• Incorporation the process of applying the bill of rights to the states.
• The framers of the constitution believed that problems could be dealt
with on a state level, as most state constitutions incorporated a Bill of
Rights
• The Bill of Rights was added to alleviate concerns about the power of
the national government.
• After a series of cases in which the BofR was ruled to not apply to the
states, Congress passed the 14th Amendment in 1866.
• Ruled that “states may not abridge the privileges or immunities of
citizens of the United States” and that no state may deprive “any
person of life, liberty or property without due process of the law”
• The Slaughter-House cases shot down the “privileges and
immunities” clause
• Brennan really set the Supreme Court on the path towards gradual

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 adoption of the BofR. Justified it with a need for vigilance to prevent
government from whittling away the rights of the individual.

Korematsu v. United States

December 1944

Delivered by: Justice Black

Background:

Immediately after the Japanese bomb Pearl Harbor, ~120,000 Japanese and
Japanese-Americans on grounds that they posed a national security threat
and would be subversive. Many American citizens were interned, constituting
the first and only instance of forced internment of U.S. citizens. Fred
Korematsu was 23, an American citizen. He was issued evacuation order and
forged his identity, had plastic surgery, and assumed that identity of a
"Spanish-Hawaiian". He was arrested as he was walking down the street. An
ACLU lawyer visited him in prison and offered to use his case to test the
evacuation decree.

Justice Black defended the decision because he said it was a matter of

military strategy and they weren't in the position to second-guess military
commanders. The Japanese in Hawaii (approximately ~200,000 of them)
however, were untouched because they contributed so much to the state's
economy. Yes, this was a time of war, but interesting to note that German-
Americans and Italian-Americans were also untouched. Obvious racism. In
California, for example, there were more cases of racial prejudice against
Japanese than Blacks, perhaps due to sheer number of them. Justice Warren
was then the attorney general of California and was one of the three most
powerful people in the Japanese internment case. By the time Warren died,
he hadn't publicly apologized for his role in Korematsu. Even so, his memoirs
show he felt conscious pangs after this decision.

Decision: Justice Black said any law that classifies according to race would
have to undergo "strict scrutiny"—the opposite of the rationalist test. The
Court decided 6-3 that the US was acting constitutionally, because "[t]here
was evidence of disloyalty on the part of some, the military authorities
considered that the need for action was great, and time was short."

Dissent: Justice Murphy

Justice Murphy sees these measures as racist. Says there must be limits to
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military discretion, especially when martial law hasn't been declared. Any
military claim must be subject to "having its reasonableness determined".
Murphy makes the point that there was no comparable discriminatory action
towards Italians, Germans, the only difference being the Japanese having
been "born of a different racial stock." He sees this dangerous in light of the
"despicable treatment of minority groups" by the very governments the U.S.
had "pledged to destroy."

Pull quote: "I dissent, therefore, from this legislation of racism."

Dissent: Justice Jackson

Jackson seems to dissent on the ground that being in a time of war does not
mean the Court could accept military orders regardless of their
constitutionality. He says a commander is "not making law" and issues
orders that "may have a certain authority as military commands, although
they may be very bad as constitutional law." But once the military
emergency is over, whatever arguments made to justify the undermining of
constitutionality remains an issue and "lies about like a loaded weapon ready
for the hand of any authority that can bring forward a plausible claim of
urgent need."

Pull Quote: "The courts can exercise only the judicial power, can apply only
law, and must abide by the Constitution, or they cease to be civil courts and
become instruments of military policy."

Freedom From Fear

The American People in Depression and War

David M. Kennedy

The sheer size of the Japanese community in Hawaii and their

contributions to the the state's economy impeded any motion to
evacuate them. The mainland Japanese community was smaller, more
economically marginal and socially isolated.
At first, General John DeWitt condemned any discriminatory action against
Japanese-Americans, saying "An American citizen, after all, is an
American citizen." He later chanced his stance to: "A Jap's a Jap…It
makes no difference whether he is an American citizen or not…"
Internees underwent loyalty interrogations. If they refused to foreswear
allagience to the Japanse emperor and answer if they were willing to
serve in the US mility (which many did, offended at the questions or
suspicious that they were being recruited for death-missions) were
deemed disloyal and dispatched to a camp. If they answered yes,
they weren't recruited into a segregated, all-Japanese regiment and
dispatched to fight in Italy.
Aides counseled Roosevelt to accelerate releases from camps, because the
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 reality of how wrong the internment was hit them. Roosevelt (who
had previously dismissed criticism with "[T]his must be a military
decision.") feared that releasing the Japanese all of a sudden—
especially before the 1944 presidential election!—would not be the
best idea. So he took his time with that.
In a coerced evacuation and compulsory internment case, Hirabayashi v.
United States, Justice Murphy warned that these had a "melancholy
resemblance to the treatment accorded to members of the Jewish race
in Germany and in other parts of Europe."
Colonel Bendetsen drafted Final Report, Japanese Evacuation from the
West Coast, 1942, with DeWitt's signature. Evacuation justified as
being a "military necessity." HOWEVER, Justice Department lawyers
were shocked to read blatant falsehoods (about subversive activities,
illicit radio transmissions, etc) in the Report. Justice Dept. debated
about what to do. If they were clear with their findings, the "military
necessity" argument would prove to be rubbish, so they attached The
Footnote. The controversial footnote used measured language: "…in
several aspects…particularly with reference to the use of illegal radio
transmitters and to…signaling by persons of Japanese ancestry, in
conflict with information in the possession of the Department of
Justice." (Italics mine)
Assistant Secretary of War McCloy read this and freaked because he
understood the implications of the footnote—the whole internment
program would be declared based on bogus evidence and
unconstitutional. He insisted the Justice Dept. remove the footnote.
Under pressure, they did.
On the day before the Court decided the Korematsu case, the government
declared the period of "military necessity" was over.
Reparations to Japanese-Americans. Korematsu receives Medal of Freedom
from President Clinton.
Interesting result: younger Japanese-Americans break out of tradition and
cultural isolation and become more assimilated.
What of African-Americans in the army in WWII? Also in segregated units.
Army in 1940 only had 5 black officers, navy only took them for
service positions like cooks, and stewards. No blacks in elite positions
Asa Philip Randolph was head of Brotherhood of Sleeping Car Porters, all-
black union of railroad workers. He pushed for government to stop
discriminating against blacks in military. He got a private audience with
President Roosevelt through Eleanor Roosevelt. Thought Roosevelt was
sympathetic, shocked to learn he wasn't going to do anything about the
matter. Organized a march in Washington. Roosevelt insisted he call it off,
Randolph refused. As a result, Executive Order 8802 was passed, prohibiting
discrimination on basis of race, creed, color, or national origin. Didn't
mention segregation, but still considered a victory.

Plessy v. Ferguson (1896)

•
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 • Case: Plessy, who claimed to be 7/8 Caucasian, refused to leave a
train coach reserved for whites and he was prosecuted for it. The
Supreme Court of Louisiana upheld the constitutionality of the statute,
the US Supreme Court upheld it as well.
• Supreme Court's reasoning (opinion by Brown): The statute does not
violate the 14th Amendment because the separation of races does "not
necessarily imply inferiority of either race". The question is reduced to
whether the statute is "a reasonable regulation" and gauged by the
standard of "established usages, customs and traditions of the
people", it is. An example of these traditions is the segregated
schooling in DC, which "does not seem to have been questioned".
• "We consider the underlying fallacy of the plaintiff's argument to
consist in the assumption that the enforced separation of the two races
stamps the colored race with a badge of inferiority. If this be so, it is
not by reason of anything found in the act, but solely because the
colored race chooses to put that construction upon it."
• Dissent by Harlan: "Every one knows that the statute in question had
its origin 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".
• "What can more certainly arouse race hate,..., 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? That, as all will admit, is the real
meaning of such legislation as was enacted in Louisiana."

The Brandeis Brief (Muller v. Oregon 1908)

• In 1908, Louis Brandeis submitted to the Supreme Court a brief that

argued for constitutionality of state law limiting women's working
hours, using vast amounts of social data to support his argument,
creating a precedent for bringing social facts into legal considerations.
• Context: The Supreme Court of at that time had defined the word
"liberty" in the due process clause (clause prohibiting the deprivation
by state governments of "life, liberty, or property without due process
of law") as including the liberty of contract. This resulted in the Court
striking down many state laws that regulated the employer-employee
relationship. Such construal of this clause originated in 1894 in
Allgeyer v. Lousiana, where the state attempted to regulate marine
insurance companies. In Holden v Hardy (1898) the Court upheld state
regulations, but the case was not used as a precedent later. Lochner v.
New York (1905) was famous as a symbol of the judicial era, and
Justice Holmes's dissent became equally famous (Constitution "is not
intended to embody a particular economic theory").
• Brandeis's criticism of Lochner: 1. Judges "unequipped with the
necessary knowledge of economic and social science". 2. Judges had

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 reversed their policy that legislation was constitutional unless proven
otherwise. 3. Rationale underlying Lochner was the absence of
connection between statutes and public health.
• Brandeis brief - 1. Two pages of legal argumentation - stating that
unless court finds no fair ground to say that there is danger to public
health if the hours aren't curtailed, it must uphold the statute. 2.
Ninety-five pages of social statistics entitled "The World's Experience
upon which the Legislation Limiting the Hours of Labor for Women is
Based".
• Court upheld the statute and credited Brandeis for the decision.
• Impact: lawyers defending regulations knew they had to submit social
statistics. Reenactment of Illinois statute limiting women's work hours
(defended by Brandeis, 600 pages of data), a number of other cases
followed. Subsequently, Roscoe Pound and Oliver Holmes argued for
understanding of laws as based on experience rather than logic.
• Brandeis personally: in favor of broad spheres of lawyer activity, not
the specialization that was ushered in by his brief. A complicated view
on women's suffrage and other rights.

Brown v. Board of Education (1954) (Brown I)

•
• Case: Brown was coupled with a number of cases, all of which featured
African-American minors who were denied admission to all-white
schools. Federal district courts upheld the doctrine of "separate but
equal" of Plessy v. Ferguson, the US Supreme Court unanimously
reversed.
• Opinion of the Court (Warren): First, there is no conclusive evidence
on what was the intention of the framers of the 14th Amendment, so
the case has to be decided in light of current state of public education.
In considering the doctrine of "separate but equal", the decision
cannot be based merely on "tangible" factors, but also on intangibles
(precedent for considering intangibles was set by Sweatt v. Painter
and McLaurin v. Oklahoma State Regents). Citing psychological studies
(footnote 11 included among others K.B.Clark's "Effect of Prejudice
and Discrimination on Personality Development"), the Court concludes
the doctrine of "separate but equal" has no place in the field of public
education. "Separate educational facilities are inherently unequal".
Since the decision has far-reaching consequences, the case will be
restored to the docket for reargument of questions 4 and 5 (questions
regarding application of the decision, the subject of Brown II).

Bolling v. Sharpe (1954)

• Importance: applies the decision from Brown I (which applies only to

states) to federal policy.
• Case: African-American minors were refused admission to public

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 schools in DC based solely on their race, district court dismissed their
complaint, US Supreme Court decided as stated above.
• Opinion of the Court (Warren): Even though the 5th Amendment does
not contain an "equal protection" clause (which is present in 14th
Am.), discrimination may be so unjustifiable as to violate due process
in the 5th. Segregation does not fulfill any government objective, so it
constitutes an arbitrary violation of people's liberty. The Court
prohibits the federal government from maintaining racially segregated
schools.

Brown v Board of Education (1955) (Brown II)

• Opinion of the Court (Warren): After an oral reargument (participants

included Attorney General of the US and AG's from involved states)
the Court has decided to localize the implementation of Brown and
allow flexibility in its adoption. Courts are required to "take such
proceedings and enter such orders and decrees consistent with this
opinion [Brown I] as are necessary and proper to admit the parties to
these cases to public schools on a racially nondiscriminatory basis with
all deliberate speed". School authorities have the primary
responsibility for solving local problems; courts will have to consider if
schools's actions consider "good faith implementation" of Brown; local
courts that previously heard these cases are best qualified for this
judicial appraisal.
•
The Southern Manifesto (1956)

• "We regard the decisions of the Supreme Court in the school cases as
a cleat abuse of judicial power."
• "The original Constitution does not mention education. Neither does
the 14th Amendment nor any other amendment."
• The manifesto mentions Plessy v. Ferguson (1896) and Lum v. Rice
(1927) as precedents for the "separate but equal" doctrine. It claims
the decision is without legal basis and that it "has planted hatred and
suspicion where there has been heretofore friendship and
understanding".
• "We pledge ourselves to use all lawful means to bring about a reversal
of this decision which is contrary to the Constitution and to prevent the
use of force in its implementation."

Klarman - “Brown, Racial Change, and the Civil Rights Movement”

Argues that the national civil rights legislation of the 1960s, not Brown,
that brought transformative racial change to the deep South.

First, argues that in the long term, racial change in America was inevitable
because of deep-seated social, political, and economic forces that were
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 leading to impulses for radical change, regardless of Supreme Court
intervention, to the point that Brown was possible in 1954 “only because
the forces for change had been preparing the ground for decades.”

Disagrees with the popular theory that Brown inspired the civil rights
legislation, arguing instead that Brown crystalized southern resistance to
racial change, which propelled politics in the South to the radical right.
Extremist leaders were elected who promised to do anything to maintain
Jim crow, resulting in nationally televised scenes of southern law
enforcement suing police dogs, tear gas, and other objectionable tactics.
These events converted millions of previously indifferent northern whites
into “enthusiastic proponents of civil rights legislation.

Kalman

Instead of debating whether courts can transform society, the interesting

aspect is that people still have confidence in “the ability of courts to change
society for what judges believe is the better.”

The Fourteenth Amendment’s due process clause gave judges unusual

power. Though liberal law professors revered the Warren Court, its activism
made it more difficult for them to fulfill their goal to see the Court base its
decisions on objective foundations of justice. Brown “spurred the
development of both liberal judicial activism and contemporary constitutional
theory.

Rosenberg - “The Hollow Hope”

Pretty straightforward: argues that Brown was completely unsuccessful in

desegregating schools, which was essentially its goal. Points out that major
reforms in practice came only after the civil rights legislation of 1964-65.

Parents Involved v Seattle School District (2007)

The Seattle School District used race as a determinate in student enrollment

within its high schools in order to maintain racial diversity within their
schools. A non-profit group by the name of Parents Involved in Community
Schools sued the district, stating that the use of race to determine student's
enrollment violated the Equal Protection Clause of the Fourteenth
Amendment as well as the Civil Rights Act of 1964.

The Supreme Court, in a 5-4 decision, reversed the lower courts ruling on

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the premise that there was no "compelling government interest" as earlier
established in Grutter v. Bollinger, to maintain racial diversity. The court
argued that since there was no history of segregation in this particular
district they were not mandated by the constitution to desegregate. In other
words the segregation that exists is de facto segregation not de jure
segregation. Furthermore, the court claims that continuing to "discriminate"
based entirely upon race will perpetuate its importance within society, even
if it is for benign purposes. The court argues, "The way to stop
discrimination on the basis of race is to stop discriminating on the basis of
race."

In Justice Thomas's concurrence, he challenges the notion that a black child

can only learn if he is next to a white child. He uses many social science
citations and statistics showing that black students can achieve in an
environment with little racial diversity.

In a concurrence, by Justice Kennedy who did not join the majority in all
aspects of the opinion of Chief Justice Roberts, writes a narrower opinion
and differs from the majority in his belief that obtaining a diverse student
body is in fact a compelling state interest.

"Diversity, depending on its meaning and definition, is a compelling

educational goal a school district may pursue."

However, Kennedy agrees to concur with the ruling because he does not feel
that race should be the only factor in deciding and creating diversity.

In Justice Breyer's dissent he argued that the majority opinion drastically

changed the established law and would take away a community's ability to
fight resegregation.

Some terms to know from this case is De jure and De facto segregation

De jure segregation: Segregation that has resulted due to law or

government intervention.

De facto segregation: Segregation that has resulted due to individual choices

and other circumstances.

Wechsler, "Toward Neutral Principles of Constitutional Law" (1959)

In this article Wechsler is arguing against the way recent court cases have
been decided, in particular the 1954 decision of Brown. Wechsler believes
that the court should make decisions based up neutral principles rather then
value choices. In his view the problem with Brown is "strictly in the
reasoning of the opinion." He explains that the decision did not overturn
Plessy but instead simply declared that separation by race in education is
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"inherently unequal". Wechsler maintains that the judgment was not based
up the facts but "rested on the view that racial segregation is, in principle, a
denial of equality to the minority against whom it is directed."

Black, "The Lawfulness of the Segregation Decisions" (1960)

In this article Black supports the decisions made by the court regarding the
segregation decisions. He uses Justice Stone's interpretation of the 14th
amendment, which states that there should be no law that hinders the rights
of any US citizen, and that all citizens should be seen as equal under the
law. He uses the idea that any law has some inherent inequality, in the since
that denying a bad driver a drivers license is in effect disadvantaging bad
drivers. He clarifies this point by explaining that equality within the law does
not actually mean "equal" but instead it means "equal unless a fairly tenable
reason exists for inequality." Black argues that there is no justifiable reason
for treating blacks unequally as the 14th amendment rejects discriminating
against blacks simply based upon the color of their skin. So no matter how
"reasonable" some may see treating blacks as inferior and unequal, it is not
justifiable under the law, it is in direct contrast with the 14th amendment
and is thereby unconstitutional. Black strongly affirms that the use of
societal and psychological implications of segregation upon African
Americans is significantly important and justified in the courts ruling. He
gives many examples of the negative impact segregation has upon blacks
and asserts that segregation's purpose is to subjugate the black race.

Letter From Birmingham Jail

• MLK writes his letter as a response to a group of clergymen who
criticized his actions of civil disobedience.

• Argues that “injustice anywhere is a threat to justice everywhere”

• Says negotiation in Birmingham failed, which is why he was forced to

take “direct action” to force the community to stop ignoring the issue
and actually negotiate.

• Says there are two types of laws: “just and unjust” and that one has a
moral responsibility to disobey unjust laws. Quotes St. Augustine: “an
unjust law is no law at all”

o Defines just and unjust laws in terms of “moral law” and the “law
of God.”

o Cites theologian who said “sin is separation” to argue that

segregation is sinful, and hence segregation ordinances are
unjust.

15
 o Examples: Hitler’s actions were technically “legal”

o Laws can be unjust if they affect a minority which has been

denied the right to vote.

o A law can be “just on its face, unjust in its application” (i.e.

parading laws)

• Criticizes the white church for not supporting the civil rights
movement, and in many cases for fighting against it. Says he expected
more of them, but that instead they have been preaching only the
status quo.

• Points out the hypocrisy of violent police retaliation against non-violent

protesters.

• “We will reach the goal of freedom in Birmingham and all over the
nation, because the goal of America is freedom.”

Horwitz, Natural Law and Natural Rights

• Says the Lochner Court illegitimately brought “natural law” into Court
decisions

• Positive law: law which has been actually stated (i.e. the constitutions,
statues, well-settled legal precedents)

• Natural law debate extends to debate over whether judges “make” or

“discover” law (a judge can argue that he “discovered what was
natural” and hence “discovered” the law, as opposed to making it).

• Unresolved: the conflict between narrow and broad scopes of

interpretation regarding what exactly constitutions, legal precedents,
and statutes have the power to imply.

• Comparison to England in 19th century: “natural law/rights ideas

entered into the everyday process of judicial interpretation in ways
that their English counterparts would have denounced as judicial
legislation”

o Bentham and Austin: two English law theorists of the first half of
the 19th century. Positivists, said that common law would make
its way into legislation because of the parliamentary system.

o Blackstone: another English theorist. Bentham accused him of

evoking natural law concepts. Alexander Pope summed up his

16
 philosophy as: “whatever is, is right.”

• Take home message: it’s important to consider the context in which

we’re talking about natural law and whether it is something that enters
legal arguments from the “outside” or as something which inherently
inspired laws on the books from the “inside.” There are a ton of
meanings that can be attached to it, and we shouldn’t stereotype just
one when we refer to “natural law.”

Powe – The Warren Court

34-74
National Reactions to Brown
• Both north and south believe courts mandate morally good outcomes
aligned with Constitutions
o However divergence on what morally good means…
o To South, North and fed govt are aggressors
• Amicus brief asks court to see segregation in light of Cold
War/anticommunism. Soviet Union often pointed out US racial
discrimination, segregation became an international embarrassment
o When Brown was decided, broadcast internationally immediately. NYT
calls it a "blow to communism."
• Eisenhower was pretty racist…
• Northern press lauds decision
• NAACP gives "muted" reaction, given that outcome still depends on
Southern compliance
Southern Reaction
• Court hadnt ordered immediate deseg, so Southern reaction muted as
well
• Many governors said they'd work with Court's decision
• Some politicians began staunch opposition – GA and VA say they won't
comply

17
Brown's Problem
• 2 goals in Brown
o declaring official gov-mandated segregation unconstitutional
o persuading southerners
• Court essentially challenged Southern way of life when challenging
segregation
o Thus, Southerners obviously didn't want to comply
• Other problems – psychology involved – SC judges are not
psychologists, nor does psychology have a place in law
o Lack of traditional legal sources. Plessy a huge precedent, so court
either had to prove Plessy wrong or say that things have changed
• Warren decided to go neither route
• Instead, psychology and Footnote Eleven took point
Footnote Eleven
• Both "unnecessary" and "stupid:"
o Read like a sociology paper. Not much law in it.
o Cited sociologists and economists (Myrdal's An American Dilemma, for
example)
• This was pretty much an insult to Southern lawyers
o Psychological tests – Clark's doll study – also flawed
• No controls whatsoever…
• Definitely reduced force/authority of opinion
Unanimity
• Was unanimity all that important? Mayb
• e, because the South would have loved to see a dissent
A Changing Constitution
• Court stated it couldn't turn clock back to 1896, needed to take current
conditions into account
• Plessy a very clear ruling and big fundamental part of Southern
establishments/society
o As such, Southerners see Court as spitting on constitution and imposing
will instead of law
• Still, no way Congress would have acted on segregation, so court "had"
to
Harlan's Appointment
• Lone dissenter in Plessy, symbolic appointment
•
Chap 3 Implementation
The debate on Remedy
• Brown didn't order anything specific
• Everyone assumed delay, even Marshall
o Marshall- "I don't believe any argument has been made to this Court to
postpone the enforcement of a constitutional right."
• Brown II decision (all deliberate speed) obviously meant more delay
• General goal – no violence and a reasonable time frame
o Argument within SC – Black/Douglas against Frankfurter/Jackson,

18
pp. 165-71, 303-10, 317(Libel After Sullivan)-321

• Southern states, especially Alabama, made life extremely hard for

NAACP members (mandated member lists, fired govt. employees who
were members, delayed cases in Court for a year, etc.)

• NYT vs. Sullivan

o The ad: accused South of “an unprecedented wave of terror”

o NO state official was mentioned specifically, so it was hard to

decide who the plantiff against the Time was.

o Sullivan: the Montgomery police commissioner.

o Sullivan thought that if he was wrong, then 100 years of libel law
were wrong.

o Brennan: AL definition of civil libel “is a form of regulation that

creates hazards to protected freedoms markedly greated than
those that attend reliance upon criminal law”

o The press, having found a champion, made Sullivan into a race

case first and foremost, not a libel one.

o Courts at the time read the case narrowly. A question of what

“actual malice” means.

o Follow-up cases moved the focus from protecting the rights of

citizen critics to protecting the rights of the press at large.

Kluger - Simple Justice

p105-106:

Introduces Charles H. Houston, one of the rare black students at Amherst

19
 College, who was elected to Phi Beta Kappa around 1915. Houston went
on to become a key figure in the legal fight for desegregation.

p123-137:

Howard University, an all-black university not much better than a high

school, was still the closest thing blacks had to their own university. In
1926, Mordecai Johnson, an ordained minister, came in as the first black
president and dramatically improved the quality of the university, most
importantly appointing Charles Houston dean of the law school in 1929.

Houston emphasized the quality of Howard’s law school, instead of the

quantity of degrees produced. The school closed its night school and
became a full-time institution. He was especially tough on his students,
because he wanted to produce graduates who would carry on the fight for
civil rights their whole lives, and who would be successful in doing so.

Mordecai Johnson was defiant when Congress threatened to take away its
funding for Howard due to student radicalism (Johnson had managed to get
huge increases in funding from Congress during his tenure), which boosted
spirits.

In 1922, the Garland Fund was established by a Harvard undergrad who

gave his inheritance to support “liberal and radical causes.” The money
would be used to mount a legal challenge to segregation, though the initial
idea, to sue individual school districts, was scrapped because it would
result in endless litigation with little impact.

Houston asked a prominent lawyer, Nathan Margold, to devise a better

strategy. Margold wrote a report in which he recommended the Fund
challenge segregation on the less-controversial idea that separate schools
were not equal, and so were not meeting the standard set by Plessy. He
found that seven Southern states had no laws that school
funding/resources had to be provided on an equal basis, and so states
were dedicating much more to white schools.

The Margold Report “became the bible of the NAACP legal drive.” However,
even though it was conservative, the Supreme Court was very conservative
in 1931, and the Depression also made a successful challenge unlikely, so
Houston held on to the Report without immediately acting on it. He
planned to attack the most vulnerable target, graduate schools, first.

p185-194:

In 1934, a Baltimore fraternity decided to mount a challenge to the

University of Maryland, home to the only law school in the state, which did
not admit blacks. The alternative was for blacks to take a scholarship to
attend a law school in another state, but money for these scholarships had

20
 never been allocated.

Donald Murray, a highly qualified black applicant, was denied admission

based on his race, so the case became Murray v. Maryland.

Though Houston and Thurgood Marshall (a graduate of Howard, member of

the faculty, and ally of Houston’s) wanted to wait for their first suit, the
lawyer in Baltimore (Belford Lawson) kept pressing, so Marshall and
Houston took over the case.

Thanks to a sympathetic judge and superior trial strategy, Marshall and

Houston won the case in the local court. The Maryland Court of Appeals
upheld the decision in 1936.

201-218

o case "Missouri ex rel. Gaines v. Canada" - Gaines was denied admission

into law program of University of Missouri. The case was led by
Houston, who retired by the time it reached the Supreme Court in
1938.
o in 1930's, the court kept had unfavorable stance towards regulatory
legislature. In 1935 it struck down the Railroad Retirement Act,
National Recovery Administration, Agricultural Adjustment Act and
other New Deal measures. In 1936 it struck down women's minimum
wage legislation in New York.
o winning the election in 1936 on this issue, Roosevelt planned the
judiciary-reorganization bill (court-packing plan), but it wasn't
implemented thanks to Roberts's switch
o Black was first Roosevelt's appointee, after Van Devanter took
advantage of the new retirement plan, few months later Reed replaced
Sutherland.
o Cardozo died, but Roosevelt was reluctant to replace him with
Frankfurter while Brandeis was still in court, so in 1938 Missouri ex rel.
Gaines v. Canada was decided by only eight justices. Agreeing 6:2, the
Court ruled against discrimination and ordered the university to admit
Gaines.
o Thurgood Marshall fought for equal wage in Maryland in between 1935
and 1938, then in 1939 he won a case which ordered state-wide wage
equalization. This was followed by a teacher wage equalization victory
in Virginia in "Alston" case.
o Roosevelt more compassion than previous presidents, even though he
was unwilling to completely break ties with Southern Congressmen. In
1941 he issued an executive order against unfair hiring practices, which
was later followed by establishment of Fair Employment Practices
Committee.

21
238-271

• question of how much should the Court rely on democratic majority.

Holmes's liberalism - unless outlandish, law doesn't need to be
scrutinized. Stone's footnote in Carolene Products - scrutiny more
important if legislation might collide with the Amendments. Jones v.
Opelika - Jehovah's Witnesses literature taxed, Court upheld it, Stone
dissented.
• Burton - Truman's first appointee, followed by Vinson replacing Stone.
• after war intensification of NAACP efforts to equalize public housing
(Federal Housing Administration stuck to Plessy), they filed Shelley v.
Kraemer
• Truman had more progressive views than former presidents, so the
government filed an amicus brief to support NAACP in Shelley v.
Kraemer. The Supreme Court decided 6:0 (three judges had conflict of
interest) in favor of Shelley.
• In 1948, Truman followed with executive orders desegregating armed
forces and ending discrimination in government employment
• In 1944, Gunnar Myrdal published "An American Dilemma" analyzing
the race question, denouncing the US and showing that African-
Americans were educationally disadvantaged.
• 1948 - Thurgood Marshall argues Sipuel v. Oklahoma State Board of
Regents before the Supreme Court, winning her an admission to the
only Oklahoma's law school. As a response, the university overnight
started a new law institution for blacks and enrolled her there, and the
Court failed to strike this down.
• 1950 - both Sweatt v Painter (Sweatt was admitted into a non-white
section of law school with inferior resources) and McLaurin v Oklahoma
State Regents for Higher Education (McLaurin admitted into graduate
study on segregated basis), reach the Supreme Court, presented on
the same day.
• At that time, libertarian activist judges Murphy and Rutledge were
already replaced by Clark and Minton, rather unspectacular judges.
• Truman also appointed William Hastie to the US Court of Appeals for
3rd circuit, the highest judicial position held by an African-American
until then.

p. 388-396, p. 469-480, pg. 507-513

Interesting story about events leading up to Brown v. Board-- struggle to

integrate Topeka, which was met with forceful resistance. There's a
narrative about Elisha Scott, a white woman who fought for integration
after seeing the poor condition of the black schools (through her black
maid). She began encountering opposition, which furthered her cause.
Interesting story about McKinly Burnett, head of the Topeka NAACP
during this time. A lot of interesting details, but I think this is just to
22
 drive home the facts that resistance was forceful and immediate, and
that both whites and some blacks resisted the idea of desegregation,
initially. Suggests that blacks in town were hoping for employment,
decent education, financing a car, house, going to church and feared
that "any show of militancy on the civil-rights front would compound
the problem." Oliver Brown, plaintiff in Brown was not such a
revolutionary figure, but he "wanted to be a whole man."
I don't know how important this will end up being. A student walkout and
strike at Moton High School, lawyers told students the only way NAACP
would get involved is if they wanted to sue for end of segregation.
This happened in federal court in Richmond. Davis v. County School
Board of Prince Edward Country. More than half a year passed before
it came to trial.
"Separate schools for Negroes carried with them a legacy of social
untouchability and psychological inferiority, and so their presence in a
community held the promise of yet another generation of second-class
citizenship. Washington, however, had been obliged by its status as
the federal city to serve its black schoolchildren more justly than the
rest of the sovereign South."
"The black schools in the capital were more nearly equal to the white schools
than any of the segregating states, but they were scarcely places of
learning."
p. 519 line 4-p.542

• This section of Simple Justice takes us through the steps leading up to

the appeal of Brown, Briggs, Davis, Bolling and the Delaware case
that were ultimately set for argument together on December 9, 1952.
We are also introduced to a few of the major players during the
desegregation movement, James Nabrit and John Davis.

• James Nabrit was a black man that grew up in Georgia and at a very
young age witnessed the violent murder of Jack Johnson, the black
heavyweight boxer who had defeated Jim Jeffries "The Great White
Hope." This moment would define Nabrit's life, he would decide to
become a lawyer at a time when there were only two black lawyers in
Georgia and would devote his life to fighting desegregation as a
member of the NAACP Legal Defense and Education Fund.

• John Davis viewed women's suffrage, child labor laws, and federal
anti-lynching laws as "meddlesome mischief put forward by egalitarian
reformers." He grew up in a small town in West Virginia and was the
son of a pro-slavery, Jeffersonian Democratic lawyer. Davis became
an extremely talented lawyer and was eventually named Solicitor
General by Woodrow Wilson. He would eventually run for president in
1924 to no avail. Davis became the chief counsel for the Jim Crow
south and would test the NAACP's legal corps.

23
 • One of the main takeaways from this section is the different
approaches of those leading the desegregation movement. Nabrit was
an advocate for an aggressive approach, he did not want to wait for
the courts to be "ready" and pushed for taking on the south head on.
Others, like Thurgood Marshall were fighting for desegregation but also
within the doctrine of separate but equal as decided in Plessy. There
were also those that felt they should wait for the courts, and to give
them a way out of overturning Plessy so that as many progressions in
the desegregation movement could made, no matter how small.
• p.629 line 24-p.645 line 22,
• Both sides of Brown went to work studying the history behind the
Reconstruction amendments (especially the work of the “Joint
Committee of Fifteen”—9 Representatives, 6 Senators—that shaped
most of the Recon. Legislation)

• In the shaping of legislation in 1866:

o A “no discrimination” clause passed the Senate but was cut in

the House in the Civil Rights Bill of 1866. Practically all states
had some sort of discriminatory laws, and it would have
prohibited them.

o The language of the 14th Amendment was much more broad than
that of the Civil Rights Bill, suggesting that the framers intended
it to go beyond the CRB in application down the road. Phrases
like “due process” and “equal protection.”

• Public education in the South

o Deep financial troubles in the South in late 19th century  no big

rush to build public school system.

o Elsewhere in the country, it was only just a seedling of an idea

when 14th amendment was written.

• W.R. Ming, consultant to Thurgood Marshall, suggested that the

NAACP ignore the troubling facts of the Civil Rights Bill (especially an
assertion that the bill would not affect separate schools by the House
leader) and instead argue the case based on pricipales of
humanitarianism, racial equialitarianism, etc.)—a broad approach.

p.648 line 25-p.658 line 24,

• 14th Amendment itself was intended to prohibit all forms of state-

24
 imposed racial discrimination.

• Argument of the segregationists: 14th Amendment had simply been a

way to enforce CRB, and CRB had NOT prohibited school segregation
or even discrimination, so neither had the 14th Amendment.

• US finally issued a brief, too, even though Eisenhower was reluctant to

have the segregation issue be resolved in the Courts.

• The US Brief: essentially agreed with NAACP (nothing in the 14th about
education, can’t reach conclusions about the intentions re:
segregation)

• Frankfurter’s assistant, Alexander Bickel, took a year to write a report

on the intentions of the 14th’s framers, which concluded that the 14th
neither allowed segregation nor prohibited it, but also that it did not
prohibit future generation from acting on the issue.

p.662 line 17-p.702,

Earl Warren’s appointment:

• Zero pre-SC time on the bench, but an impeccable character that
Americans respected

• Pre-SC clues about Brown decision: Warren “I am for a sweeping civil

rights program…

• The argument of Brown v. BoE:

o NAACP

 Broad 14th amendment

 Spottswood Robinson gave a stellar performance, Marshall

not so much.

o Davis (defending Plessy): 14th said nothing about segregation,

had no jurisdiction over it, couldn’t prohibit it.

• Warren on the deciding process: little doubt about how it should go,
thought Plessy had been eroding for years, argued for a living
Constitution.

• Some thought that the only way segregation could be declared

unconstitutional would be if they adopted the idea of a living
Constitution that “varies from age to age” (Jackson)

25
• Rumors that Frankfurter drafted a dissent, but didn’t end up voting
with it.

• Reed, the last to go, was worried that a sudden dismantling of

segregation would do more harm than good, was finally convinced
when Warren agreed that it would be gradual.

26