The attorneys had trouble convincing the Court, because segregation enjoyed cover under text, history, and precedent. Nowhere does the Constitution explicitly prohibit governments from separating people on a racial basis. As an originalist matter, the 18th- and 19th-century framers and ratifiers of the pertinent constitutional provisions did not understand themselves to be withdrawing from governments the authority to impose racial separation. Segregationists, moreover, could point to a wall of precedent built or countenanced by leading jurists, including Oliver Wendell Holmes Jr. and Louis Brandeis. Prior to 1954, vanishingly few judges had ruled that racial segregation violated the Constitution.
In Brown, the Court broke free from baleful tradition. Yet the Brown opinion is utterly pallid. Absent from it is denunciation of the ideology from which segregation arose or the grotesque unfairness with which “separate but equal,” the doctrine ushered in by the 1896 ruling in Plessy v. Ferguson, was administered.
The Court’s diffidence was not inadvertent. Chief Justice Warren told his colleagues that he sought to craft an opinion that would be “short, readable by the lay public, non-rhetorical, and above all, non-accusatory.” Determined to lessen opposition as much as possible, Warren avoided candidly diagnosing segregation’s pathologies. The Supreme Court’s most honored race relations ruling thus skirted frankly discussing racism. The evasion was prudential, perhaps wise. A sound appraisal of Brown should recognize, however, the constraint that accompanied its birth.
Brown’s status has changed dramatically over its lifetime. In its infancy, enemies sought to strangle it. In 1956, 19 senators and 76 members of the House of Representatives endorsed the “Southern Manifesto,” which condemned Brown as a “clear abuse of judicial power” that ought to be resisted by “all lawful means.” In its childhood, assailants unleashed bombings, mob violence, and rampant threats to devastating effect. In 1964, none of Mississippi’s more than 300,000 Black students attended school with whites. Prior to 1966, not a single Black teacher in Mississippi, Alabama, or Louisiana was assigned to work alongside white teachers.
Yet Brown’s core holding—prohibiting government from requiring racial separation—eventually gained traction, subverting the race line in all areas of social life, including transportation, recreation, and matrimony.
Because of changes in consciousness wrought by the civil rights movement, by the time Brown reached adulthood, it had attained a legitimacy beyond serious questioning in national politics.