Commentary Magazine


Simple Justice, by Richard Kluger

Simple Justice.
by Richard Kluger.
Knopf. 823 pp. $15.95.

It was in December 1952 that the Supreme Court first heard oral argument in the five cases that history would know collectively as Brown v. Board of Education. The immediate question before the Court was whether to overturn or let stand the state school-segregation laws enacted in the six decades since Plessy v. Ferguson had sanctioned the principle of “separate but equal.” Free and compulsory public education, uncommon when the Fourteenth Amendment was ratified and far from universal at the time of Plessy (a case concerning railway segregation), had in the interim become the norm everywhere, and in Southern and border states public education generally meant separate schools for black and white. But rarely were they equal. The NAACP had already made substantial progress at the college and graduate-school level in persuading the courts to command equality of treatment. Since the 20’s, moreover, strategists at the NAACP and the Howard University Law School had weighed the possibility of directly attacking the legal basis of segregation itself by seeking a reversal of Plessy on the grounds that it was a misinterpretation of the Fourteenth Amendment and that state actions classifying and separating citizens solely on the basis of their race were forbidden by the Constitution. Brown v. Board of Education became the weapon of that attack.

Richard Kluger’s monumental account is really three books. He has written a sympathetic mini-history of the Negro in America, emphasizing the actions, laws, and court decisions that shaped, limited, and sometimes restored his rights as a citizen, but including also a string of vignettes and profiles of major figures such as Frederick Douglass, Booker T. Washington, and W.E.B. DuBois. Second, he offers a detailed and engrossing examination of the pre-1950 civil-rights movement and the men, organizations, and ideas that energized it; readers familiar with Martin Luther King, Roy Wilkins, and the militant groups of the 60’s will be re-acquainted with Charles H. Houston, James M. Nabrit, Jr., Walter F. White, the origins of the Legal Defense Fund, the protracted campaign to desegregate the federal government itself, and the pioneering lawsuits of the 30’s and 40’s that began to shake the legal bulwarks of racial separation. Third, Kluger’s seven years of research have yielded a remarkable chronicle of Brown and its companion cases, tracing their origins in Topeka, suburban Wilmington, the District of Columbia, and rural Virginia and South Carlina, their tortuous passage through lower and appellate courts, and their protracted and climactic consideration by the highest court in the land.

The Supreme Court chapters are fascinating. From interviews, scrutiny of the transcripts and briefs, and examination of letters, diaries, and other archival material as well as contemporary news stories and subsequent monographs, Kluger has synthesized a revealing account of the workings of the high court and the views and actions of the eleven justices who signed the landmark decrees. (Fred M. Vinson and Robert H. Jackson died during the Court’s three-year bout with Brown and were succeeded by Earl Warren and John Marshall Harlan.) A Court that in the preceding years had been split on most major issues and divided in its opinions fully appreciated the gravity of the school-desegregation cases and the importance of presenting a harmonious front and a unanimous decision on so highly charged an issue. But the justices also came to the conference room with clashing social philosophies, diverse interpretations of the Constitution, and distinctive views on the propriety and feasibility of judicial action in the political realm. Buoyed especially by Felix Frankfurter, who sensed from the outset that if the Court were to sail into these waters it was imperative that every member climb aboard a single craft, the new Chief Justice, Earl Warren, waited, persuaded, and, in drafting the decisions himself, artfully knit the disparate views of his colleagues into a united opinion.

Of the process and the personalities Kluger discloses much. And if his tale were frozen in time these revelations would suffice. As it is, they amply repay the large investment of effort needed to digest this bulky tome. But two decades have now elapsed since the Supreme Court’s single voice remanded the cases “to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially non-discriminatory basis with all deliberate speed the parties to these cases.” And in that period a simple and seemingly indisputable principle—that the Constitution forbids states and their instrumentalities to discriminate against citizens on the basis of race—has been fanned into the most protracted, rancorous, and divisive domestic blaze of the postwar era. The two-to-six months which Thurgood Marshall, at the time chief counsel for the NAACP (and since 1967 himself a member of the Court), suggested might be required for the nation’s segregated school districts to come into compliance have lengthened into a generation of resistance, litigation, and even bloodshed.

The specific requirements of Brown have largely been met. The legally constituted dual school systems of the Southern and border states have, reluctantly but inexorably, been unified; a black child and a white child in neighboring homes are no longer forbidden to enter the same schoolhouse. That in itself is a monumental accomplishment, albeit a century late. It was accompanied by pain and trauma, but it happened, as it probably would not have if the Court had ruled differently in Brown. Many other Jim Crow laws and practices have fallen alongside the dual school system, as the nation struggled to cleanse itself of what Kluger fairly terms its original sin.

But the courts did not stop with the disestablishment of de jure segregation, nor have Congress and the executive branch simply allowed individuals and communities to sort themselves out, subject only to the requirement that government itself may not discriminate on the basis of race. As desegregation has metamorphosed into integration, as de jure has stretched toward de facto, as free choice has given way to obligatory percentages, as the clamor for equal outcomes has overtaken the plea for equal treatment, as a dozen different minorities (and, in the case of women, a majority) have claimed the rights vouchsafed the Negro, as the venue has shifted out of the old Confederacy and embraced the entire land, and as the agencies of government have brandished carrots and sticks of every description, the nation has moved far beyond the question of whether Linda Brown should have to travel a mile to the Monroe school when her father would rather she attended the Sumner school three blocks from home.

When he turns to such matters, and to developments of the past two decades generally, Kluger becomes cursory, ideological, and a shade insensitive. Had he omitted his thirty-page epilogue on recent events and personalities, the book would still have had flaws—excessive detail, long digressions, and a tendency to moralize about historical events—but its manifest strengths would have prevailed. His treatment of matters still fresh in the memory, however, is slanted enough to raise doubts about his judgment and thus to dim the illumination that the first 750 pages seemed to lend to less well remembered years.

He has his say on the last four Presidents: Eisenhower comes through as morally deficient, notwithstanding the fact that his administration wrote the first civil-rights bill to be enacted since 1875, while John Kennedy, who by most accounts sidestepped the issue as long as he could, is seen as “genuinely committed.” Lyndon Johnson had the right instincts, and his civil-rights and anti-poverty programs were “extraordinary,” but they, and the President’s reputation, got mired down somewhere in the Mekong Delta. And then Nixon, the scoundrel. Page after page recounts his sins against black America, and the gravest of them was putting strict constructionists onto the Supreme Court. No matter that in its Holmes County, Charlotte, and Denver decisions, the Burger Court accelerated and widened the national movement toward integrated schools, and did so with virtual unanimity. (Justice Rehnquist entered a solitary dissent in the Denver case.) Of greater consequence to Kluger is what the Court failed to do in Rodriguez and Milliken v. Bradley: to mandate uniform school expenditures everywhere within state borders, and to require entire metropolitan areas to integrate their schools, blending urban blacks and suburban whites without regard to municipal boundaries.

There is a viewpoint here, expressed with consistency in Kluger’s strong, somewhat florid prose, and it is one that many will find congenial. For Kluger, Brown was the first great peak in an endless juridical roller coaster that the nation ought not brake or disembark from, however reckless the speed or jolting the curves. The “justice” of the title turns out to be far from “simple”—its lineaments will be readily recognized by students of John Rawls—for at the end of that careening ride we glimpse a society quite different from the one mandated by the Court in 1954.

But the problem with the book extends beyond the author’s own conception of a just society, his obvious pleasure with events that propel us toward it, and his ill-concealed contempt for those who impede that progress. Simple Justice is, above all, an ode to the lawsuit, a celebration of the courtroom as catalyst for social reform, and a paean to (in Nathan Glazer’s term) the “imperial judiciary.”

Not, one hastens to add, every lawsuit or every decision. From Dred Scott and Plessy to the present day, the Supreme Court has itself impeded progress all too frequently for Kluger’s taste. But his confidence in the judicial process as the primary engine of social justice endures, as shown in an extraordinary passage (there are others like it) in the preface:

Some protested [segregation], to be sure. But no political leader risked all of his power and no sector of the nation’s governmental apparatus was fully applied against this grave injustice—until the Supreme Court of the United States took that step. There was irony in this because the nine justices, as has often been said, constitute the least democratic branch of the national government. Yet this, most likely, was one reason why the Court felt free to act: it is not compelled to nourish the collective biases of the electorate; it may act to curb those unsavory attitudes by the direct expedient of declaring them to be intolerable among civilized people.

Kluger, then, stands in bold opposition to Glazer, the late Alexander Bickel and Robert McCloskey, and other scholars who have cautioned against the reckless intrusion of the “least democratic branch” into heated social and political issues, and he shows little sympathy for the many jurists who have feared that the long-term costs of an activist court may exceed the benefits of imposing their own philosophy upon the nation.

Foremost among such jurists was Felix Frankfurter himself, to whose abhorrence of racial discrimination and of those who, in practicing it, invoked the authority of the federal Constitution, was joined an equally profound sense of judicial restraint and of the danger of reading one’s personal views into the Constitution. Kluger’s gauge, it would appear, has more to do with the substance of one’s philosophy than with such niceties of scruple, and, in the years since Brown, he has found the Supreme Court a more consistent advocate of his philosophy than the elected branches of government. And that, for him, appears to be enough.

It is painful to watch a good writer shed the discipline imposed by deep research and allow his passions to overtake his objectivity. No doubt it is the viewpoint and the passion, more than the massive dose of welcome information about an interesting and important subject, that have elevated the appearance of this volume into a major publishing event rather than one left to the dusty pages of historical reviews. One senses, however, what Justice Frankfurter would have thought.

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