The Brethren (8 page)

There was another factor too: the new Chief Justice. Burger's record on civil-rights issues seemed decent. The new Chief had sought out Black's opinion on a number of matters over the summer, and Black had found him well-meaning and congenial. Still, Burger was clearly Nixon's man.

Above all, Black wanted to avoid triggering a split in the Court. He decided not to overturn the delay but to set forth his own views as strongly as possible and thus show the way for the Court. He chose his words carefully, writing slowly with a pencil on a yellow legal pad. A clerk assisted him, but Black's memory problems slowed their effort. He frequently needed to be reminded of what the Court of Appeals had said. His clerk patiently told him. Black would jot down some thoughts and ask the same question. On some points, he needed to be reminded several times. It was a slow and painful struggle. "For a great many years," Black finally wrote, "Mississippi had had in effect what is called a dual system of public schools, one system for white students only and one system for Negro students only."

His frustration and impatience came through in sarcasm. Black recounted the history of the desegregation cases, including the ill-chosen "all deliberate speed" language of the
1955
Brown case
(Brown
v.
Board of Education
II).
The time for "all deliberate speed," he wrote, had "run out." He acknowledged that the most recent
1968
Court desegregation decision
(Green
v.
County School Board of New Kent County)
could be interpreted as approving a "transition period" from a dual to a unitary system. That decision could also be read to say that the Court required only that the school systems have
plans
for desegregation now, not that there must be desegregation now. For Black, that was an incorrect interpretation. The time for delay, postponement, footdragging, transition was over. But, he wrote, "I recognize that, in certain respects, my views as stated above go beyond anything this Court has expressly held to date. . . . Although I feel there is a strong possibility that the full Court would agree with my views, I cannot say definitely that they would... ."

On September
5,
Black issued a five-page opinion that left the Fifth Circuit's delay intact, "deplorable as it is to me," and invited the N.A.A.C.P. Legal Defense and Education Fund, Inc.—commonly known as the "Inc. Fund" —that was representing the blacks in Mississippi to "present the issue to the full Court at the earliest possible opportunity."

The opinion might force the Court to take the case. Since
1954,
the Court had always been unanimous in school cases, its strong commands to desegregate joined by every member. For fifteen years, the Justices had agreed, that it was essential to let the South know that not a single Justice believed in anything less than full desegregation.
To
preserve that unanimity, the Court could not let the Fifth Circuit delay remain in force. Black's opinion put him
on
record as favoring a reversal.

The Inc. Fund followed Black
's
suggestion and filed
an
emergency petition asking for a prompt hearing. On October
7,
the Justice Department formally urged the Court to use its discretionary power not to hear the case, arguing that it would be better to wait and see what the Mississippi schools did after the plans were submitted on December
1.
At conference on October
9,
Black was able to muster the four votes required to grant the Inc. Fund cert petition.* The Justices agreed to put the case at the head of the docket and to hear oral arguments in two weeks, on October
23.

The press followed the case closely. Justice Department officials were saying that a Court decision in favor of the Inc. Fund, one that demanded immediate desegregation, would be tough to enforce because the Department did not have enough lawyers, and because the South might react violently. The President remarked at a press conference that those who wanted "instant integration" were
as
"extremist" as those who wanted "segregation forever." Lower federal court judges who were on the battle lines, with hundreds of similar school cases before them, waited to see what signal, if any, might be forthcoming.

On the morning of Thursday, October
23,
the courtroom was packed. Two hours, twice the normal time, had been allotted for oral argument. Jack Greenberg, chief lawyer

* A cert petition is a document filed with the Court, making the arguments as to why the Justices should take a particular case for consideration. Under the Court's internal rules, four votes—one less than a majority—are required to accept a case. The term cert petition is used in this book to refer both to
petitions for certiorari
and, in the case of appeals, to
statements of jurisdiction.

for the Inc. Fund, opened. He said there had been enough stalling and enough lawlessness by the Southern school officials. He reminded the Court that its decisions were not being obeyed. Even after the Court's ruling of the year before, the federal court in southern Mississippi had spent a year arguing whether blacks were innately inferior to whites. Greenberg summed up the situation in Mississippi. A related suit against the school board of Jackson, Mississippi, was still pending in the Fifth Circuit. The man who had filed that suit, Medgar Evers, would not see how it came out; he had been gunned down near his home in Jackson. "The sorriest part of the story lies in the exercise of discretion by some United States District Court judges in that state," Greenberg said. They had delayed, they had refused to proceed, and they had exploited "ambiguity— real ambiguities and fancied ambiguities—in the decisions of this Court and the Court of Appeals."

Greenberg was going for ever
ything in this case. He wanted the Court to take away the South's tested and most effective tool for delay. During the lower court battles, school districts often remained segregated until all appeals were exhausted. He proposed that the burden of proof be shifted, and that the Court order that the original H.E.W. plans be implemented. Desegregation should be the status quo. Its opponents could argue all they wanted, litigate all they wanted, but the schools would be desegregated during that process. He had a further suggestion. The recalcitrant District Court should be told to stay out of the case, and the higher court of appeals, the Fifth Circuit, should oversee implementation of the plans.

Greenberg wanted a strong desegregate-at-once statement that would have a straightforward symbolic effect He did not want the Court to focus on the practical problems of ordering instant desegregation.

Louis Oberdorfer, a private attorney and a former law clerk for Justice Black, argued for a group of lawyers in private practice whose names read like a Who's Who of the legal establishment. The group opposed any desegregation delay and offered, if necessary, to supply attorneys to help enforce desegregation in the South.

Black broke into Oberdorfer's argument as if he were asking his former clerk for advice. "The thing to do is to say that the dual system is over and that it is to go into effect today
...
to go at it now—do you agree?" he asked softly.

"I agree with that, Your Honor," Oberdorfer responded, "without knowing exactly what 'now' is."

"I mean when we issue an order," Black said. He paused, then added: "If we do."

The audience broke into loud laughter. Black was not hiding his position.

Mitchell had assigned the head of the Civil Rights Division of the Justice Department, Jerris Leonard, to present the government's case. Leonard had barely given an account of government's successes in achieving desegregation in the South when he was interrupted by questions, first from Douglas and then from Black. Trying to brush them off, Leonard stated that there were practical problems, that the situation was complicated.

"What's so complicated?" Black challenged testily.

Leonard backpedaled. "What I'm pleading with this Court is not to do something precipitous—"

That set Black off. "Could anything be precipitous in this field now?" He could not hide his contempt. "With all the years gone by since our order was given?"

Leonard continued, but he was interrupted repeatedly.

Burger's low baritone attempted to soothe the waters. "Just one question if I may. If there had been no appeal here . . . can you assure us that the plans would have been submitted on December
i?"

Leonard was happy with that question. Yes, he assured the Chief. If the Court did nothing, the new plans would be submitted by then.

Burger was satisfied. It was already the end of October. Whether the Court overturned or upheld the lower court order, the plans would be submitted in about five weeks. But White and Black forced Leonard to concede that even if the plans were in by then, the latest appeals court decision did not guarantee that desegregation would take place before the next school year. Leonard admitted that another year might go by without much progress.

"Too many plans and not enough action," Black said with a thin smile, and the audience once again burst into laughter.

The next day, Friday, October
24,
the Justices met in conference to discuss the case. Tradition dictated that the Chief speak first, that he outline the issues and briefly state his view. Then the discussion would proceed in order of seniority, starting with Black. Theoretically, voting would then take place in the opposite order, starting with the junior Justice, Thurgood Marshall. But over a period of time, the formal vote had been dispensed with, since, in expressing his views, each Justice let it be known where he stood. If his position was firm, it amounted to a vote.

The Chief, sitting in his chair at the end of the table, turned to the Mississippi case, the first major case of the term. The crowded courtroom the day before, the intense press interest, the passion of the lawyers and the obvious concern and emotion of his colleagues, suggested this case would be a landmark, an enduring guide for future cases of the same type. It might be the most important case since the original
Brown
decision. The Warren Court had built much of its reputation on fifteen years of school desegregation cases. Now, Warren Burger, as Chief Justice, would guide the Court to its next milestone. It would be a test of his leadership. From what he had heard and seen, Burger realized that unanimity, the unwritten rule in these cases, was going to be difficult to achieve. His own position differed from Black's September
5
opinion. Burger didn't think the Justice Department was being wholly unreasonable. Clearly there were practical problems—problems H.E.W. and the appeals court understood better than the Supreme Court—and it was important that the plans be workable. If revised plans were submitted December I, five weeks from now, it would not be a disaster for school desegregation. Yet Burger opposed delay for its own sake, and that was clearly what the district court in Mississippi favored. The Supreme Court should take a strong stand against that sort of stalling. It should issue a statement that there would be no delay and ask the appeals court to move as quickly as possible without prolonged debate. Perhaps the Justices could quickly issue a short, simple order opposing delay, and follow it with an opinion laying out their reasoning.

Black, sitting as senior Justice at the opposite end of the conference table, spoke next. Five weeks, he said, was not the issue. It was symbolic. Any willingness on the part of the Court to grant a delay, no matter how slight, would be perceived as a signal. All those district court judges with hundreds of similar cases in their courts, all those Southern politicans, and the Nixon administration itself, were waiting for the Court to show any sign of weakening in its resolve. To appear to waver, even for a second, would be a betrayal. Bla
ck attacked Nixon and his admini
stration bitterly. They were allowing the South hope of further evasions. The Court must resolve the problem and reaffirm its commitment before Nixon took hold of the situation. What little progress there had been in the South and the Border States had really occurred after the Justice Department and H.E.W. had stepped in to sue school boards and to draw up plans. The Court could not permit them to drop out of the struggle now.

All that was needed in this case was
a
short, simple order, Black argued, not an opinion. There had already been too much writing. Every time an opinion came down, some lawyer found an ambiguity, filed a suit and got more time. To involve the Court in debating details or plans would be disastrous. That was exactly what the proponents of delay wanted. There must be no mention of plans in the order, or of timetables. Black wanted
unanimity
as much as anyone, but if the Court's order mentioned the word "plan," he would dissent. There must be nothing that school districts or the Nixon administration could grab onto for another round of quibbling.