The Day Before the Earthquake

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Paul Wilson was the lawyer who represented the State of Kansas before the Supreme Court in the case of Brown v Board of Education.   Fifty years after the Brown decision he wrote a memoir of his involvement in the case entitled A Time to  Lose. It’s a charming book on many levels, but I think it is especially valuable in giving us a candid picture of race relations in America and the Supreme Court’s attitude towards segregation just before the constitutional earthquake of Brown v. Board. of Education.

Mr. Wilson spends a good deal of time  showing his readers how race played out in Kansas history.  He explains that even though Kansas  had opposed slavery and fought with the North in the Civil War, most white Kansans still thought separation of the races “natural.” They believed in the superiority of the white race and had no moral qualms about segregation.  While they did not have a strong emotional attachment to segregation like citizens of the deep South, they were quite comfortable with it if it was the will of the majority.  And  that was the case  in most towns in Kansas where there was a substantial  African American population.   I must confess this does not sound very different from how  my neighbors on the Southside of Chicago felt in the early 1950’s.

But one reason  Kansans were comfortable with segregation was  the U. S. Supreme Court’s declaration   in Plessy v. Ferguson and subsequent cases that it was constitutionally acceptable.   Most Americans now think of the Supreme Court’s decision in Plessy as outright racist,  but Kansans in 1952 believed it to be well- established constitutional law and determinative of the issues in the Brown case.   The school district at the trial court, and Mr. Wilson for the State in the Supreme Court, relied exclusively on the legal authority of Plessy.   

Part of the charm of Wilson’s book is the tale of how his life changed after he was chosen to represent Kansas before the Supreme Court.  He gives us a lively narrative of his preparation for arguing the case (including buying a new blue suit for the occasion), and of his impressions of the Supreme Court upon arrival  in Washington, D.C.

He also gives a description of the oral arguments before the court.  For me, the most striking fact is the reverence that many  justices showed the Plessy opinion which they  thought expressed well-established constitutional principles.  Justice Frankfurter spoke about the presumptive legitimacy that the “long established historical practice by the states…confirmed and adjudicated by state courts, as well as by expressions by this Court” (Wilson,  A Time to Lose,145)  gave to state-sponsored racial segregation in public schools.

But after oral arguments the justices seemed quite divided about what to do.  Instead of issuing a decision, they asked the parties to brief additional questions about the meaning of the Fourteenth Amendment.  Mr. Wilson had to go back to the law library

But then history intervened.  Dwight Eisenhower was elected president. He appointed Herbert Brownell as Attorney General. Brownell opposed segregation and the government’s briefs to the Court would express that view.  More importantly Chief Justice Vinson, someone insiders had predicted would side with the defendants in Brown, suddenly died.   Eisenhower appointed Earl Warren, the Republican governor of California, as Vinson’s replacement.

Suddenly a new epoch of American constitutional history opened. Warren persuaded the members of the court to issue a unanimous opinion overruling Plessy  and declaring “separate but equal” a violation of the Equal Protection Clause of the Fourteenth Amendment.

America and the Supreme Court has never been the same since. First, the Brown opinion  signaled a  national re-engagement with our history of racism.  Segregation was no longer an acceptable “long established historical practice” but a violation of the civic equality  the constitution promises all citizens. Southern states fought hard to neuter the Brown decision by the policy of “massive resistance,” and were at first largely successful. But soon Martin Luther King was able to use the Court’s holding that segregation was not only immoral but also illegal as a powerful weapon in the protests at Montgomery, Birmingham, and Selma, demonstrations that culminated in the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, the major civil rights documents of the twentieth century.

But these victories were soon followed by riots and looting which fed into Richard Nixon’s call for “law and order” in 1968. The Civil Rights Movement never again was able to mobilize a national majority to fulfill the promise of Brown.   And today killings in Ferguson and racist chants in Oklahoma make it clear that racism is not behind us. But, that said, the national reaction to these facts also shows that most Americans no longer view racism as a quaint local custom but see it as an evil that threatens our democracy.

Brown  also changed the Supreme Court.  Justice Frankfurter urged a deference to “lawful” authority that deprived the court of any meaningful role in enforcing the constitution’s political values.  Brown saw the constitution as a higher law that took precedence over legislative decisions.  It also refused to shrink the Constitution’s meaning to the narrow ambit of the particular evils the framers envisaged at the time the text was drafted.  Instead it was a repository of national political ideals applicable to new problems as they arose.  The Court eventually extended the equality principle of Brown to other discriminations like sex and sexual orientation.  And it also infused broad meanings into the speech and religion clauses.

The era of the Warren Court eventually ended  and a new more conservative court arose, but the nature of the court itself was no less political after the change.  The new court just chose different political values to enforce.  But that’s not surprising in a democracy as divided as our own.  The crucial question is whether we want a court of acquiescence or engagement.  I think that controversy is preferable to denial.  It’s better to discuss our differences openly than conceal them in pompous abstractions.

Paul Wilson felt no need to apologize for his role in defending the State of Kansas’ authority to permit school districts to segregate on the basis of race if they so wished.  He saw himself as an advocate and that was his client’s position. But he came to believe in retrospect that  1954 was Kansas’ “time to lose” because without the catalyst of Brown there would have been no impetus for white Americans to face up  to the problems of race.   I think he was right on both counts.

 

3 Comments

  1. Marc G. Pufong,, Professor, Political Science and Public law, Valdosta State University, GA. 31698 says

    I offer below some fruit for thought concerning your write up.
    “……They believed in the superiority of the white race and had no moral qualms about segregation. While they did not have a strong emotional attachment to segregation like citizens of the deep South, they were quite comfortable with it if it was the will of the majority. And that was the case in most towns in Kansas where there was a substantial African American population.” …..Realty????

    First: ..You may well be right that people in Kansas may well have “believed in the superiority of the white race and had no moral qualms about segregation….” They could not because they had no $$ investment in the institution,. The notion that citizens of the deep South had a strong emotional attachment to segregation suggest that southern states investment in slavery were more for emotional reasons than financial — the bed rock slave institution. Buying and selling people as property for which their labor to be exploited for financial gains does not sound like an emotional attachment or investment to me.

    Second: Why leap frog the significance Civil Right of 1957 and 1960 in which MLK also play decisive roles in your narrative to 1964 and 1965 …. Was not the Civil Rights Act of 1957 the first order of support by congress for the Supreme Court’s Brown decision after that case and the very first to do so since the passage by Congress of the 1866 and 1875 Acts …. ???

    Third to reiterate again the significance of the 1957 Civil Right Act, following the Supreme Court Brown ruling, reaction in Southern states such as Virginia was immediate as they engaged in “Massive Resistance” with rising violence against African Americans. In places such as Little Rock, Arkansas, President Eisenhower ordered in federal troops to protect nine children integrating a public school. This of courser was the first time the federal government had sent troops to the South since Reconstruction. There had been continued physical assaults against suspected activists and bombings of schools and churches in the South. The administration of Eisenhower then proposed legislation to protect the right to vote by African Americans…..which led to the passage of Civil Acts of 1957 and its revision and expansion in 1960. The Civil Rights Movement continued to expand as fter 1960, with protesters leading non-violent demonstrations to mark that cause. President Kennedy and Johnson would come to view with the 1964 and 1965 acts. MLK was there in 1957 and through 1965 acts. This is a much clearer picture linked to the Brown case that changed America. Time to Lose no doubt opens an important story but one which we must not only get it right but talk about it clearly and completely.

    Thank you for your time.
    Marc G. Pufong, PhD

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    • Thanks for hour comments. I agree that it misstates the case to imply that segregation was only a question of emotion, not economics. I am also interested in your stress on the 1957 Civil Rights Act. I see that Robert Caro thinks it a milestone, but I believe other scholars find it mostly window-dressing for LBJ’s presidential ambitions, with little substantive effect.

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  2. Charles Farnsworth says

    The “earthquake” that John Denvir describes in his review of “A Time to Lose” was more of a slight tremor in the town of Topeka, where I was in high school when Brown v. Board was handed down in 1954. Junior high and high schools had been integrated for years, and the board had taken steps to integrate two grade schools a year before the Supreme Court decision—an action that nearly mooted the appeal, to the consternation of the NAACP Legal Defense Fund, which was counting on Topeka to be a model defendant and peacefully comply with any Court order (which it did).

    Putting that quibble aside, what I found most enlightening about “A Time to Lose” were the revelations by the young appellate lawyer Paul E. Wilson about his heavy heart but strong sense of legal duty as he defended Kansas’ states rights before the Court. He knew the tide of history was moving against him, and had no sympathy for the southern states’ die-hard defense of the old system. At the Court, Wilson was a the stranger in a strange land, arguing a position he no longer believed in. A bright lawyer just doing his job, he was, in a sense, an example of Denvir’s “guile” by not letting his feelings get in the way of his work. But he may have paid a heavy social and emotional price for being the face of Kansas’ segregation laws, as the book’s dedication to his family suggests: “May this book mitigate their decades of embarrassment.”

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