David M O’Brien - Justice Robert H. Jackson’s Unpublished Opinion in Brown V. Board: Conflict, Compromise, and Constitutional Interpretation

Justice Robert H. Jacksons
Unpublished Opinion in
Brown v. Board

Other Books by David M. OBrien

Storm Center: The Supreme Court in American Politics, th edition

Constitutional Law and Politics: Struggles for Power and Governmental
Accountability, th edition

Constitutional Law and Politics: Civil Rights and Civil Liberties, th edition

Supreme Court Watch (annual, 19912015 )

To Dream of Dreams: Religious Freedom and Constitutional Politics in Postwar
Japan

Animal Sacrifice and Religious Freedom: Church of Lukumi Babalu Aye v.
City of Hialeah

Judicial Roulette

Congress Shall Make No Law: The First Amendment, Unprotected Expression,
and the U.S. Supreme Court

Privacy, Law, and Public Policy

The Publics Right to Know: The Supreme Court and the First Amendment

What Process Is Due? Courts and Science Policy Disputes

Judges on Judging, th edition (editor)

The Lanahan Readings on Civil Rights and Civil Liberties,
rd edition (editor)

Abortion and American Politics (coauthor)

Courts and Judicial Policymaking (coauthor)

The Judicial Process: Law, Courts, and Judicial Politics (coauthor)

Government by the People, nd edition (coauthor)

The Politics of American Government (coauthor)

Judicial Independence in the Age of Democracy: Critical Perspectives from
around the World (coeditor)

Views from the Bench: The Judiciary and Constitutional Politics (coeditor)

Justice Robert H. Jacksons
Unpublished Opinion in
Brown v. Board

D AVID M. OB RIEN

U NIVERSITY P RESS OF K ANSAS

2017 by the University Press of Kansas
All rights reserved

Published by the University Press of Kansas (Lawrence, Kansas 66045 ), which was organized by the Kansas Board of Regents and is operated and funded by Emporia State University, Fort Hays State University, Kansas State University, Pittsburg State University, the University of Kansas, and Wichita State University

Library of Congress Cataloging-in-Publication Data

Names: OBrien, David M., author.

Title: Justice Robert H. Jacksons unpublished

opinion in Brown v. Board : conflict, compromise, and constitutional interpretation / David M. OBrien.

Description: Lawrence, Kansas : University Press of Kansas, [2017] | Includes bibliographical references and index.

Identifiers: LCCN 2017026726 ISBN 9780700625185 (cloth : alk. paper) ISBN 9780700625192 (ebook)

Subjects: LCSH: Brown, Oliver, 19181961Trials, litigation, etc. | Topeka (Kan.). Board of EducationTrials, litigation, etc. | Jackson, Robert H., 18921954. | Judicial opinionsUnited States. | Segregation in educationLaw and legislationUnited States. | Discrimination in educationLaw and legislationUnited States. | African AmericansCivil rights. | Constitutional lawUnited States. | Justice, Administration ofUnited States.

Classification: LCC KF228.B76 O27 2017 | DDC 344.73/0798dc23 LC record available at https://lccn.loc.gov/2017026726.

British Library Cataloguing in Publication Data is available.

Printed in the United States of America

10 9 8 7 6 5 4 3 2 1

The paper used in this publication is recycled and contains 30 percent postconsumer waste. It is acid free and meets the minimum requirements of the American National Standard for Permanence of Paper for Printed Library Materials z 39.48-1992 .

For Claudine and our three children,
Benjamin, Sara, and Talia,
and our grandson, Isaac

Contents

Illustrations

P hotographs

F igures

Acknowledgments

First and foremost I am indebted to my wife, Claudine, for putting up with my research and writing while raising our three wonderful children. This book has its origins in research conducted over three decades ago for Storm Center: The Supreme Court in American Politics, now in its eleventh edition. In the process of working through the papers of justices and presidents, I acquired the basis for this book and became intrigued with Justice Robert H. Jacksons unpublished opinion in Brown v. Board of Education. For more than a quarter of a century, excerpts of that opinion have been included in my casebook, Constitutional Law and Politics, volume , Civil Rights and Civil Liberties, now in its tenth edition.

Hence, I remain grateful for all of the assistance over the years of the staffs at the Manuscripts Division of the Library of Congress, the Bancroft Library at the University of California, Berkeley, the Butler Library Oral History Division at Columbia University, the Dwight D. Eisenhower Presidential Library, the Harvard Law School Library, the Lyndon Baines Johnson Presidential Library, the Seeley G. Mudd Library at Princeton University, the Franklin D. Roosevelt Presidential Library, the Harry S. Truman Presidential Library, the Special Collections Library at the University of Kentucky, the Bentley Historical Library at the University of Michigan, the University of Texas Law School Library, and the Yale University Librarys Manuscript and Archives Collections.

In addition, for further work on this book, I appreciate the assistance of Carol A. Leadenham at the Hoover Institution Archives, Amy Wheaton and Lesley Schoenfeld at the Harvard Law School Archives, and Cecilia Brown, special collections archivist, at the University of Virginia Law School Library, as well as the staff at Alderman Library, Joni Blackman at the Fention History Center, Jamestown, New York; Alexis Valentine at the Library of Congress, John Fields at the Supreme Court of the United States, and Sheryl Schutter at the Robert H. Jackson Center in Jamestown, New York.

Several scholars read portions or all of the book and deserve mention. I especially appreciate the time, trouble, and encouragement given by University of Chicago Law School professor Dennis H. Hutchinson, who kindly read and commented on (at times very rough) draft chapters. A former Ph.D. student and now the Robert H. Jackson Distinguished Professor of Law at Albany Law School, Vincent M. Bonventre meticulously read and commented on every chapter. Two colleagues at the University of Virginia, Henry J. Abraham and James S. Todd, also read portions and kept me going. In addition, historian Melvin I. Urofsky and John Q. Barrett of St. Johns University Law School read the first chapter, previously published in Journal of Supreme Court History, for which I am grateful. I also appreciate the work of the University Press of Kansass editor-in-chief, Joyce Harrison, and before her the encouragement of Fred M. Woodward and Michael Briggs, along with Karen Hellekson, copyeditor, Larisa Martin, production editor, and the editorial assistance of Cole Anneberg.

Of course, none of them bears responsibility for any remaining omissions, mistakes, or misinterpretations.

I ntroduction

A Story Retold

Brown v. Board of Education ( 1954 ) is widely recognized as one of the Supreme Courts most important decisions in the twentieth century, second perhaps only to Marbury v. Madison ( 1803 ). Justice Robert H. Jackson is generally considered one of the Courts most gifted writers. Much has been written about Brown, of course, but comparatively little on Jackson or his unpublished opinion in Brown.

The story of Brown has been told and retold in many ways, from different perspectives by historians, legal scholars, political scientists, and others. Some explain Brown in terms of historical currents and struggles,

Brown is placed in the canon of constitutional law by legal scholars on both the left and the right.

Much has also been written about the justices decision making in Brown, and their unanimity in particular.