Making Our Democracy Work (11 page)
Read Making Our Democracy Work Online
Authors: Stephen Breyer
Herbert Brownell, Eisenhower’s friend, ally, counselor, and attorney general, urged the president to take action. On Monday, September 23, Eisenhower made his decision. Unlike President Jackson 120 years earlier, he would use federal troops to support federal law.
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In a public statement issued that evening, Eisenhower said, “The Federal law and orders of a United States District Court implementing
that law cannot be flouted with impunity by an individual or any mob of extremists.” He pledged to use “whatever force may be necessary to prevent any obstruction of the law and to carry out the orders of the Federal Court.” He then issued an order: As “President of the United States, under and by virtue of the authority vested in me by the Constitution,” I “do command all persons engaged in such obstruction of justice to cease and desist therefrom, and to disperse forthwith.”
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In 1957, Americans remembered the 101st Airborne Division as the heroes of World War II. They had fought in the Battle of the Bulge and had parachuted into Normandy, many dying when the winds left them dangling from church steeples. Eisenhower told his army chief of staff, General Maxwell Taylor, to send this famous division to Little Rock.
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On Tuesday afternoon, September 24, fifty-two aircraft carrying about one thousand troops left Fort Campbell, Kentucky. That evening Eisenhower spoke to the nation about the importance of the orders of the Little Rock federal court being “executed without unlawful interference.” By then, the soldiers had deployed around Central High School. That evening Melba Pattillo, one of the Little Rock Nine, wrote in her diary, “I don’t know how to go to school with soldiers.… Please show me. P.S. Please help the soldiers to keep the mobs away from me.”
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The next morning a crowd again gathered outside the school, some taunting the soldiers. The soldiers lowered their bayonets, but they injured only a small number. One man was pricked by a bayonet, another hit on the head with a rifle butt. Army jeeps picked up the nine black students. Another black student, Minnijean Brown, said, “For the first time in my life, I feel like an American citizen.” At 9:25 a.m., the jeeps delivered the black students to Central High. As reporters and television crews broadcast pictures around the world, soldiers accompanied the students up the steps and into the school. Despite a false bomb scare around noon, the students successfully completed their first day.
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The next morning the crowd was gone. The students continued to attend Central High without serious incident. A poll showed that 68.4 percent of Americans approved the president’s decision to send the troops (the numbers reflected 77.5 percent who approved in the North and 62.6 percent who disapproved in the South).
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Yet the battle was far from over. Governor Faubus announced, “We are now an occupied territory.” Senator James Eastland of Mississippi stated at a White Citizens’ Council meeting that Eisenhower had “lit the fires of hate between the races.” “The use of an army will not win,” he added, “because the soldiers cannot stay in Little Rock all the time.” Nor can Eisenhower occupy every southern school. After about two months in Arkansas the troops withdrew. The nine black students remained at Central High, finding the atmosphere difficult (many white classmates were silently hostile), though a few white students and many teachers offered comfort and support.
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HE
S
UPREME
C
OURT
L
ITIGATION AGAIN BECAME
the center of attention. Governor Faubus and his allies urged the school board to suspend its integration effort. And in February 1958 the school board returned to federal court.
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The board told the court that it was difficult to operate a school system given the hostility from the governor, the state legislators, and the community. They pointed to incidents of segregationist intimidation. Furthermore, the state legislature had recently enacted laws that substituted all-white private academies (operating with state support) for integrated public schools. The board asked the court to suspend integration for thirty months, after which time it expected the courts to have determined whether the private academy scheme was lawful.
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On June 21, 1958, the district court granted the board’s request for a thirty-month delay, but on August 18 the Eighth Circuit reversed the district court. It then ordered a thirty-day stay, temporarily leaving in effect the district court’s order to delay integration. To prevent Little Rock’s schools from abandoning integration and instead reopening the school year on a segregated basis, the Supreme Court agreed to hear the case immediately.
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The Court held a special oral argument session on August 28 and then again on September 11 in the case of
Cooper v. Aaron
. (William Cooper was a member of the school board, and John Aaron was the parent of a black student.) The NAACP asked the Court to put the
Eighth Circuit’s order into effect immediately, that is, to order the lower courts to proceed with integration. The school board registered strong opposition because of the state’s efforts to interfere, the “chaotic” educational conditions at Central High, the possibility of the new private academy system, and the need for a thirty-month delay. The executive branch supported the NAACP. With the troops clearly in mind, the solicitor general told the Court that the moment you “bow to force and violence,” you “give up law and order.” The “country cannot exist without a recognition that the Supreme Court of the United States, when it speaks on a legal matter, is the law.” Furthermore, Americans were entitled to a definitive statement from the Court on whether force and violence and opposition to the Court’s decision were reasons to delay integration.
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Two weeks later the Court issued a brief statement unequivocally denying the school board’s request for a thirty-month delay and requiring integration to proceed as originally planned. The Court’s unanimous opinion followed on September 29.
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In its opinion the Court decided and clarified four important matters. The first concerned the constitutional duty of obedience to the Court’s own decisions. The Court highlighted Governor Faubus’s claim that “there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the United States Constitution.” The Court replied with five sentences:
Sentence One:
“Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land.’ ”
Sentence Two:
“In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as ‘the fundamental and paramount law of the nation,’ declared in the notable case of
Marbury v. Madison,…
that ‘It is emphatically the province and duty of the judicial department to say what the law is.’ ”
Sentence Three:
“This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law
of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”
Sentence Four:
“It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ ”
Sentence Five:
“Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, §3, ‘to support this Constitution.’ ”
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Sentences One and Two are unexceptionable. Sentence Three, when closely examined, is particularly interesting, and Sentences Four and Five flow directly from it. Sentence Three does not quote
Marbury’s
actual language; rather, it summarizes
Marbury
’s holding. But in reality
Marbury
did not explicitly say (in the words of Sentence Three) that “the federal judiciary [compared to other branches of government] is supreme in the exposition of the law of the Constitution.” Rather,
Marbury
said more ambiguously that “courts,
as well as other departments
, are bound by” the Constitution. Nor, as we have seen, had the cases after
Marbury
clearly demonstrated that either the Court or the country viewed judicial supremacy as “a permanent and indispensable feature of our constitutional system.” Thus, the Court in
Cooper
actually decided that the Constitution obligated other governmental institutions to follow the Court’s interpretations, not just in the particular case announcing those interpretations, but in similar cases as well—a matter that both Hamilton and Marshall had left open.
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Sentence Three reveals that the Court had reached a crossroads. To have used more ambiguous language would have been to hedge or to vacillate, thereby handing a powerful legal and public relations weapon to those who, like Governor Faubus, were trying to convince the South that it need not follow
Brown
. If the Court was to make clear its power
to issue highly unpopular constitutional decisions, it had to assume that other officials and the public at large would follow its key interpretations, and not just in the single case before the Court but in similar cases as well. Hamiltonian judicial review demanded Sentence Three.
The second matter concerned the South’s claim that the Court’s
Brown
decision was legally incorrect. To counter this, the Court emphasized that
Brown
was unanimous and then “unanimously reaffirmed” the decision. It made clear that the three new justices who had joined the Court since
Brown
agreed with the original authors. Furthermore, in a highly unusual step, all nine justices personally signed the opinion (rather than joining an opinion written by one of their number), thereby suggesting that all nine agreed with all of it and stood together in issuing it.
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The third matter concerned the board’s reasons for requesting postponement, which were the practical obstacles the board faced: the “state government opposed the desegregation of Little Rock schools by enacting laws, calling out troops, making statements vilifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace.” Thus, as the district court’s factual findings had revealed, Arkansas had essentially brought the difficulties on itself. The Court refused to accept this as a basis for resisting the desegregation order. As the Court in
Brown II
had held, the Fourteenth Amendment’s “equal protection” requirements “cannot be allowed to yield simply because of disagreement with them.”
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The fourth matter involved the question of remedies, and the Court was divided about the proper approach. Some, such as Justice Hugo Black, believed the South would delay desegregation until the Court set firm, definite, and speedy timetables. Others, such as Justice Felix Frankfurter, thought the Court should continue to follow
Brown II
’s “all deliberate speed” approach, leaving remedial matters primarily up to the district courts, which could shape, or approve, orders reflecting local conditions.
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The Court patched together a compromise. On the one hand, it instructed the school boards to “make a prompt and reasonable start toward full compliance.” It further specified that “only a prompt start,
diligently and earnestly pursued, to eliminate racial segregation from the public schools could constitute good faith compliance.” It also addressed the legality of state-supported private segregated academies, remarking and then reiterating that the “Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property.” On the other hand, the Court repeated
Brown II
’s key language: “all deliberate speed.” And it added that courts must consider local conditions, physical plant, transportation, and the other matters that
Brown II
had permitted or required lower courts to take into account. Justice Frankfurter later filed a separate concurring opinion in which he too emphasized both the legal need to follow
Brown
and the practical need to take account of local problems and difficulties.
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In its concluding paragraph the unanimous opinion invoked the four words carved above the Supreme Court portico: “Equal Justice Under Law.” Those words, it said, set forth an “ideal” to which the Constitution is “dedicated” and which the Fourteenth Amendment “embodie[s].” The amendment, as
Brown
made clear, protects a student’s “fundamental and pervasive” right not to be racially segregated.
Brown
’s basic principles,
“and the obedience of the States to them,…
are indispensable for the protection of the freedoms” that the Constitution guarantees.
Brown
’s principles,
if obeyed
, make equal justice under law “a living truth.”
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