Case 4: Brown v. the Board of Education

The Supreme Court's decision in Brown reflected evolving
norms, customs and traditions, but not without resistance.

Norms, customs and traditions play an important role in shaping the path of constitutional law. As those factors in society change over time, the Supreme Court's decisions chart those changes through ever-evolving interpretations of constitutional meaning. That's how the Court could progress from decisions such as Dred Scott, declaring African-Americans un-citizens, and Plessy, declaring "separate but equal" OK, to its unanimous decision in Brown, overturning Plessy and demanding the de-segregation of schools.

Reflecting our class discussion, a key factor to consider was the personnel on the Court in 1954. Let's face it: They were a bunch of old white guys, some of them from the South. Consider what a challenge it was for Chief Justice Earl Warren to get all nine to sign on to a unanimous decision. Here is an interesting paragraph about that from the Wikipedia entry:

"Conference notes and draft decisions illustrate the division of opinions before the decision was issued.^[18] Justices Douglas, Black, Burton, and Minton were predisposed to overturn Plessy.^[18] Fred M. Vinson noted that Congress had not issued desegregation legislation; Stanley F. Reed discussed incomplete cultural assimilation and states' rights and was inclined to the view that segregation worked to the benefit of the African-American community; Tom C. Clark wrote that "we had led the states on to think segregation is OK and we should let them work it out."^[18] Felix Frankfurter and Robert H. Jackson disapproved of segregation, but were also opposed to judicial activism and expressed concerns about the proposed decision's enforceability.^[18] Chief Justice Vinson had been a key stumbling block. After Vinson died in September 1953, President Dwight D. Eisenhower appointed Earl Warren as Chief Justice.^[18] Warren had supported the integration of Mexican-American students in California school systems following Mendez v. Westminster.^[19] In his reading of the unanimous decision, Justice Warren noted the adverse psychological effects that segregated schools had on African American children.^"



BROWSE the full entry here: Brown v. the Board


Dialogic Constitutional Interpretation

The Supreme Court "speaks" when it issues a decision, but it also "listens." So say constitutional scholars (including this one) when trying to explain how the law changes over time. A key mechanism for talking to the Court in ways that precede decision and talking back to the Court in response to decisions is by creating non-judicial precedents — that is, taking actions that communicate what various actors consider to be accepted norms, traditions and customs that should inform constitutional law.

Consider these four Wikipedia entries as actions by non-judicial actors that could have created non-judicial precedents before, to talk to, and after, to talk back, the Court's decision in Brown:

Starting the United Negro College Fund

Airing, then canceling, "Amos 'n' Andy"

Thurgood Marshall leading the NAACP

Launching "Massive Resistance"

As always, be thinking about how these and other developments might play into your final Big Question Essay — and how they might play into the Theory of Dialogic Constitutional Interpretation, which we'll discuss more in coming classes.