About one year after the Court first heard Brown, the case had to be reargued because the Court could not make a unanimous decision. But in September 1953, two months before the reargument was to begin, Chief Justice Vinson died of a heart attack, and Chief Justice Earl Warren was appointed.
Klarman said one of the justices, Felix Frankfurter, pointed to Vinson’s death as evidence of God’s existence, eliciting laughter from the Law School audience.
But the outcome of the case was in doubt until the end. Klarman said the NAACP prepared two press releases because it was not clear who would win.
Finally on May 17, 1954, the Court ruled that “separate educational facilities are inherently unequal.” Reading from a memo written by Justice Douglas the day the Brown decision was handed down, Klarman said that had the justices ruled on the case when it was first argued before the Court in 1952, "the vote would have been five to four in favor of the constitutionality of segregation in the public schools."
Although widely regarded as a revolutionary decision, Klarman said “it is wrong to see Brown as the origin of the Civil Rights Movement.”
“The justices were capitalizing on a trend that was already underway,” he said. “They saw themselves as piggybacking on those changes.”
During a question and answer session after the talk, Ogletree pressed Klarman on whether Brown was a sound constitutional decision. “It depends on your theory of constitutional interpretation,” Klarman answered.
“If you are strictly committed to the text of the Constitution and the line of precedent, then you can’t defend Brown,” Klarman said. “But if you take into account the morality, then you support Brown.”
When one audience member asked about the merits of Marshall’s argument, Klarman said, “Marshall was a one-man law firm...I am a big fan of Thurgood Marshall, but I don’t think the argument had a large impact on the outcome.”
In the end, Klarman said, “none of the justices relished the idea of being on the side of white supremacy.”
HLS continues its Brown celebration today with a panel discussion in Ames Courtroom titled, “Reflections on the Jurisprudence of Justice Thurgood Marshall: A View from His Law Clerks.” The panel will feature nine HLS faculty members who clerked for Marshall. University President Lawrence H. Summers will deliver opening remarks.
Tomorrow, Ogletree and Bloomberg Professor of Law Martha L. Minow will discuss their new books about the decision.
More information about the upcoming events is available on the HLS website at www.law.harvard.edu.
—Staff writer Andrew C. Esensten can be reached at esenst@fas.harvard.edu.