“If it was not the most important decision in the history of the Court,” Justice Stanley Reed observed of Brown v. Board of Education, “it was very close.”
The Supreme Court’s opinion in Brown, delivered on May 17, 1954, held segregation in public schools unconstitutional, a decision that paved the way for the removal of racial discrimination from American law. By any measurement, the ruling placed Brown in the pantheon of America’s greatest judicial decisions.
Justice Reed, the last of the three Southern members of the Court to join Chief Justice Earl Warren’s unanimous opinion, who had concluded that there were no factors outweighing “a fair treatment of Negroes,” had tears in his eyes as he and his Brethren, and a packed courtroom of reporters and observers, listened to the Chief Justice read his entire opinion, one more closely guarded than any in the history of the High Tribunal.
Chief Justice Warren took unprecedented steps to protect the secrecy of the Court’s opinion. The Justices agreed that a decision of such magnitude should be written and delivered by the Chief Justice. The extreme secrecy of the drafting of Warren’s opinion, a reflection of the Court’s understanding of the impact of the decision in the South, was summed up by Warren’s note: “I need hardly add that the typewriting was done under conditions of strictest security.”
The Justices’ efforts to maintain secrecy meant withholding from their law clerks word of the Court’s decision to overturn Plessy v. Ferguson. There was no entry of any action placed in the Court’s docket, kept by the Justices and shared with their clerks. It was agreed that the only clerks that would be involved would be Warren’s and that any written communications would be delivered to the Justices personally.
Warren’s usual approach to drafting an opinion was abandoned in Brown, in the name of security. Typically, he left the drafting of opinions to his clerks, after orally outlining the facts of the case and the desired conclusion. Clerks would fill in the reasoning and supply the necessary footnotes.
In Brown, however, Warren wrote the first draft, entitled “Memorandum,” in pencil on yellow legal pads. The draft ran nine pages. It reflected Warren’s penchant for opinions that were short, free of technical jargon and Latin phrases and, most of all, accessible to lay readers. Like Justice Hugo Black, Warren believed that Supreme Court opinions should be written for the general public. Warren’s draft was remarkably like the final opinion, which underwent review by his clerks and the Justices.
After Chief Justice Warren finished his draft opinion, he informed his clerks of the Court’s unanimous decision to overturn Plessy and swore them to secrecy. He noted that nobody beyond the Justices themselves knew of the decision, not even his wife. The clerks were given the weekend to work over his draft opinion. When the “team effort” was finished, Warren personally delivered the opinion to his colleagues, in their chambers. As it happened, Justice Black’s copy was delivered to him while he was playing tennis in Alexandria, Virginia. The final draft was printed on May 13, four days before the opinion was announced, and locked away in a vault. No copies were made.
On May 17, the Justices informed their law clerks that they would want to attend the Court’s announcement of its ruling on Brown, known as “the segregation case.” Chief Justice Warren later noted that there was a palpable tension in the courtroom. Anticipation of the Court’s ruling was high, and the room was filled, with reporters standing at the back of the room, ready to race to telephones to share the ruling with their editors. The wives of the Justices were in court that day, a rare occurrence reserved for historic rulings. Justice Robert Jackson, who lay critically in a local hospital, dragged himself to the Supreme Court to demonstrated “our solidarity.”
At 12:52 p.m., after the Court had announced its rulings in other cases, Chief Justice Warren stated: “I have for announcement the judgment and opinion of the Court” in Brown v. Board of Education of Topeka, Kansas.
Warren’s deep voice filled the Marble Palace. He provided, first, the background of the case, that “Plaintiff Negroes” were seeking admission to public schools on a non-segregated basis. Under Plessy v. Ferguson and separate-but-equal, they were denied relief. They asserted that segregated schools were not “equal” to schools that white children attended and that they could not be made equal, which violated the Equal Protection Clause of the 14th Amendment.
Warren next turned to the great question presented in the case: “We must look to the effect of segregation itself on public education.” The Chief stated, “Today, education is perhaps the most important function of state and local governments. It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be available to all on equal terms.”
And then, Warren asked the crucial question: Does segregation of children in public schools based solely on race, deprive Black children of equal educational opportunities?
We turn next week to the content of the Court’s answer.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.