Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality

"If I had to recommend one book about law or about the Supreme Court, this is the book I would pick. Kluger is a journalist; as far as I know, he doesn’t have a legal education. He decided to write the definitive history of the Brown vs. Board of Education litigation and he wrote a gripping, page-turning story. Brown began as five cases; he goes back to each of the five locations to tell the story of the litigation. Many people know what the Supreme Court did with its 1954 decision in Brown, but they don’t know how the case got there. The litigation in Virginia started with Black students in Prince Edward County, which is a county where slavery was pervasive and where Black children were probably more than 50% of the school population around 1950. These children didn’t get bus transportation, whereas whites did, and their schools were dilapidated, whereas white students had fancy new schools with modern amenities. So Black children decided to strike for equal funding; they were not demanding integration. The NAACP (National Association for the Advancement of Colored People) got wind of this. The NAACP said to them, ‘We’re not interested in bringing cases just to achieve material equality, we want integration.’ So it’s an example of how heroic kids were out in front on this issue. Kluger is such a good storyteller that the courage of these kids comes leaping off the page. He also writes the history from within the Supreme Court, and it turns out it’s a fascinating internal history, which is well preserved in memos between the justices and justices’ conference notes on their deliberations. I’ll give you an example from the book. The case was first argued in December 1952. The justices had real doubts about what to do. Kluger recaptures their conversations in some detail, using their conference notes, and captures the debate using memos between the Justices and memos from law clerks. They ended up putting the case over for re-argument, then the Chief Justice dies, and President Eisenhower picks a new Chief—Earl Warren, who was the Governor of California. He goes through all of this and it reads like a novel, but it’s about the most important court case in United States history. Kluger’s book is now 45 years old, but it’s still incredibly valuable. It’s probably a misleading way to think about the Court. There’s no reason to think that any particular chief justice represents the Court and there’s no reason to think that the appointment of a chief justice at a particular moment will change the nature of the Court’s jurisprudence. It is true that Chief Justice Earl Warren left in 1969 and another liberal justice, Abe Fortas, left that same year. Nixon was able to appoint a new chief justice and several additional conservative justices within a few years. That fundamentally changed the nature of the Supreme Court. So it probably is accurate to see the shift from the Warren court to the Burger Court as pretty significant, but it’s not because of the changes in chiefs so much as it is because of the fact that Nixon got four appointments during his first term in office. Support Five Books Five Books interviews are expensive to produce. If you're enjoying this interview, please support us by donating a small amount . John Marshall was different. He presided over the Court for 34 years. He was a very powerful leader and he was quite deliberate in exercising his authority to produce unity in the Court. That’s partly a reflection of the Marshall Court’s weakness, because it was a Federalist Court operating during a Jeffersonian and Jacksonian era. Marshall understood the Court needed to speak with a united voice, so he would ride herd over the other justices. At that time they all lived together. When they were deciding cases, they lived together in a Washington boarding house. They had dinner together, they drank a lot of Marshall’s port together. Marshall insisted that there’d be one opinion for the Court and more often than not, he wrote it. He discouraged dissenting and concurring opinions. So that really was the Marshall Court. Other chief justices really didn’t exercise that much influence. They were just one vote. It’s not like the Chief Justice gets two votes or has any coercive influence over the other justices. So I think it’s analogous to how we encapsulate events into decades. We think of the 1960s, we think of the 80s, the 90s, the 1920s. It’s a misleading, but convenient, way to think of history. There are two different ways in which Roberts may think about this differently than just another associate justice. Roberts, because he’s chief, is probably somewhat more attentive to the stature of the institution. Something about being Chief may lead you to think more about protecting the institution from political reprisals, if the Court does things that are too provocative. Chief Justice Hughes clearly did that in 1937, when the Court was confronted by the threat of Court packing. The other thing is—and Roberts has said this in speeches—Roger Taney’s reputation was destroyed as a result of one decision, Dred Scott . Roger Taney was a brilliant politician and a beloved justice, but by being on the wrong side of history, there has always been a black mark by his name. Remember, most Americans would have agreed with the Dred Scott decision in 1857, but within eight years you had a Civil War and slavery was abolished and that didn’t make his opinion in Dred Scott look very good. Roberts has said he does not want what happened to Taney to happen to him. So I’m sure he was thinking about that in the ACA case. I’m sure he was thinking about that when he was the fifth vote for the liberals in the census case. That’s not quite the same as the institutional stature of the Court, that’s a question of your own personal reputation. But because Americans think of the Court as being embodied by the Chief Justice, that means that the Chief’s personal reputation and the Court’s institutional stature are melded in a way that they may not be for other justices. So of the six conservatives that it will be on the Court, once Justice Amy Coney Barrett is confirmed, Chief Justice Roberts is the one who’s going to be thinking the most about trying to hold the Court together, trying to rein in the other conservatives. He clearly did that last term in the way that the justices resolved the cases involving Trump’s taxes. Chief Justices are supposed to hold the Court together when they can. Earl Warren did that with Brown . Chief Justice Burger tried to do that in the school desegregation case that came up early during his term. His Court was also unanimous in the case deciding that Nixon had to turn over his Oval Office tapes. If anybody is going to hold the Court together, the Chief Justice is the one who’s most likely to try and maybe most likely to be effective in doing that. Yes. President Trump dismissed judges who had struck down one iteration of his Muslim travel ban as “Obama judges” and Roberts responded: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” It was an effort to defend the lower federal courts from the president’s attacks. Ironically, this is one statement Trump has made, maybe in his lifetime, that is true. There are Obama judges and Trump judges. Judges are influenced by their political ideology. That’s true of Supreme Court justices, who divide five to four today on every important issue along political lines. But Trump was not right to attack the independence of judges because the independence of judges is critical to the rule of law. A lot of what the Supreme Court does has nothing to do with high profile cases like abortion and affirmative action. Judges are responsible for deciding ordinary contract cases and criminal cases. And a society that does not have independent judges who can withstand an authoritarian-inclined president like Trump—who is constantly trying to interfere in criminal prosecutions involving his political allies, like Roger Stone and Michael Flynn—that’s not a society that abides by the rule of law, that’s a society that’s already moved dangerously far in an authoritarian direction. So, it’s one thing to acknowledge that Supreme Court Justices and all judges are influenced by their personal ideologies, it’s another thing to attack the judge and jury in the Roger Stone prosecution, which is what authoritarians do and what it’s almost inconceivable one of our presidents could do, without almost a word of objection from his party."