The Warren Court Wikipedia Commons One of the most despicable chapters in the history of the United States is the hundred years of segregation following the Civil War. As if slavery wasn’t bad enough, the United States tolerated—and through court decisions mandated—a system that fundamentally deprived people of the rights afforded to their fellow citizens because of their race. All of this in spite of the 14th amendment guaranteeing equal rights to everyone.  

The story about how the Supreme Court overturned segregation is worth reviewing, especially for local leaders who aspire to close the Sustainability Gap—that annoying difference between what some elected officials say about sustainability and what they actually do. It’s a story about how change can take a long time, but how courageous and principled leadership can make the difference. The Brown v. Board of Education decision made civil rights real in a way that fighting a war and even passing a constitutional amendment couldn’t do. 

  • More than ten years ago I read a biography of Earl Warren by Ed Cray  called Chief Justice. I rediscovered it when a home repair project forced me to box up all my books. I re-read the chapter that describes how Warren put together the unanimous decision on Brown v Board of Education, overturning years of legalized segregation. Warren demonstrated how one leader can build on the hard work of others to accomplish serious and beneficial change.

    Earl Warren was a well known California Republican politician in the 1930’s and 40’s. Warren had a hand in the internment of the Japanese after Pearl Harbor when he was governor of California, responding to fears that raged at the time, just as many political aspirants are responding to fear today (the internment is another ugly chapter in our history. You can find lots of source documents and background on the internment here). Warren’s appointment to the highest court in the land was greeted with skepticism. After all, people suspected the appointment was a back room deal in exchange for Warren’s grudging support of Dwight Eisenhower for the Republican Presidential nomination in 1952.

    That, and Warren had never been a judge. He was an attorney and had been elected Attorney General of California twice and Governor three times. But what could Warren possibly bring to a seriously divided court—a court divided philosophically and even personally on major issues—as an outsider and political appointee?

    Warren’s first case right out of the box as Chief Justice was an opportunity for the Court to overturn the separate but equal rule created through a previous decision in Plessey v Ferguson. The separate but equal concept was an insidious one, allowing for legalized segregation in the south and other parts of the United States (see map). Schools could keep whites and blacks apart, as long as the curriculum was the same. Overturning Plessey would transform the country, according everyone equal access to education and by extension everything else, regardless of race.

     

    Segregation Map Wikipedia Commons

    Brown v. Board was a class action suit first filed in 1951 by 13 parents against the school board in Topeka, Kansas. The suit called for an end to segregation in the Topeka schools, challenging the basis of Plessy. The case was a perfect chance to reverse the legal principle of separate but equal, and an opportunity to set the country on a new course. No more would there be separate bathrooms, water fountains, movie theaters, or neighborhoods for black and white people; everyone would be equal—a fulfillment of the highest principles that, until then, remained only words on paper.

    But in Warren’s view the decision needed to be unanimous, simple, and clarion. Having a divided court, or even one with different concurring decisions, would dangerously mix up the Court’s conclusions, giving fodder for racist politicians throughout the South. The Court needed to be firm, clear, and united in what it delivered or risk inciting, or at least giving encouragement to, opponents of civil rights.

    Here’s how Warren pulled this off. First of all he believed segregation was wrong. His internal compass pointed toward reversing the Court’s tentative attitude toward Jim Crow. Second, he recognized he couldn’t do it alone. Third, he took advantage of the power he had as Chief Justice to set the Court’s agenda and manage decisions. Finally, Warren was relentlessly patient—but principled—waiting until all eight justices were aligned with the decision.

    The result is a clear decision that cuts to the point:

    We conclude that, in the field of public education, the doctrine of “separate but      equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.

    Warren worked his colleagues, taking the time to get to know them. It was a diverse bunch ranging from early environmentalist William O. Douglas to Justice Hugo Black who had been a member of the Klu Klux Klan in the 1920s. And there had been a battle raging between Justice Felix Frankfurter, an adherent of judicial restraint, and Justice Robert Jackson who thought the Supreme Court ought to be more interventionist. The Court was not united in personality, disposition, or philosophy. But Warren de
    livered.

    Warren’s work and the decision of the Court dealt the final legal blow to a system of segregation that activists had worked against for the previous century. In fact, it was Thurgood Marshall who argued the case in front of Warren’s court. Marshall would go on to be appointed the first African American on the Supreme Court (go to this great biography on Marshall).  But it was Warren who led the court to its decision and who, when in a position to act, did so even though he and his colleagues knew that years would pass before their decision would be fully implemented.

    Thurgood Marshall Wikipedia

    One has to be cautious, of course, when making an analogy between civil rights and sustainability. But I think my point is pretty simple. Our elected leaders often have similar opportunities to strike down bad legislation or support legislation that is controversial, and the consequences of not acting are obvious and negative. Whether it’s building tunnels or bridges or making land use judgments, today’s leaders often face ordinary decisions that have significant implications.

    Building more highways doesn’t make sense while we’re trying to reduce our dependence on cars. But we’ve been building highways now for 60 years. It takes guts to stand up to that kind of momentum in the face of intense opposition. It’s true that Warren didn’t face a re-election fight since he had a lifetime appointment. It’s impossible to measure the significance of that in his ability to deliver the right outcome.

    Impeach Warren Wikipedia Commons

    For larger image click here

    Leaders in the fight against the effects of climate change, for example, have to build the foundation—as civil rights leaders did in the years leading up to the Brown victory—for significant change, and we have to support elected officials willing to do the right thing when presented with the opportunity.

    Segregation was a stubborn affliction that didn’t get resolved just by a decision of the Supreme Court. Even with the force of the written words of the 14th Amendment, equality was elusive at best for millions of people for decades. It took broad social action along with the courage and integrity of a few leaders to deal the death blow. Similarly, positively affecting climate change means working for broad change but it also means putting people in office that have the sense and integrity to do the right thing when the time is ripe—no matter how much risk and work it takes.

     

    Photo credits: Warren Court, from Wikipedia Commons.

    Educational Separation in the US Prior to Brown Map, from Wikipedia Commons

    Thurgood Marshall, from Wikipedia Commons

    Impeach Warren, from Wikipedia Commons