The Right Decision:
ABRAHAM, HENRY J.
The Right Decision By Henry J. Abraham The passing of time has scarcely dulled the controversy surrounding the Supreme Court's integration decision. Although the ruling was rendered by a...
...Ferguson...
...Brown vs...
...Although the ruling was rendered by a unanimous vote, including Justices from Alabama (Hugo Black), Texas (Tom Clark) and Kentucky (Stanley Reed...
...And how many more decades should the Negro community have waited before taking up the fight against segregation...
...It might well have prevented a good deal of criticism in connection with this fourth and most contentious point of criticism if it had simply ruled that in the mid-20th century the equal protection clause of the 14th Amendment clearly prohibits any and all state-sanctioned and/or state supported discriminations of an unreasonable nature—such as those based on race, creed and previous condition of servitude...
...certainly it did not need to do so in order to arrive at the constitutional point...
...The word "integration" does not appear anywhere in Chief Justice Warren's opinion...
...On tactical grounds, we may ask whether America could afford to wait that long when its claims to leadership of the free world are under searching scrutiny by friend and enemy, and particularly by the colored peoples...
...3) It was not a "wise" decision because the issue involved was education...
...As for the tactical wisdom of the NAACP strategy, this is at least an open issue...
...In any event, would not allout struggle by the Negroes have engendered as much hostility and opposition from the Southern whites as the struggle against segregation in the schools...
...but we ought to be willing to acknowledge them accordingly...
...But the Court is keenly aware of the impact its decisions have on the public and thus often feels obliged to elaborate upon them, at times by drawing upon matters not necessarily vital to the decision itself...
...All too often, the public's attitude toward a decision of the Supreme Court—or for that matter toward any decision affecting the body politic, of which the Court is a part —is determined by whose ox is being gored...
...What follows, however, is not directed toward the latter group, nor to the demonstrable fact that progress has been slight and hesitant in bringing about the Court's mandate of a "prompt and reasonable start," but to the power, justification and appropriateness of the decision itself...
...All remedies below having been exhausted, the Court duly granted petitions for review from judgments of lower Federal courts, as is its power and duty to do in such instances...
...Ample precedents for the merits of such a clearcut decision exist both before and after the famous 1896 "separate but equal" ruling in Plessy vs...
...Education is not exempt from the mandate of this clause, regardless of how long it may have taken the Court to come to grips with this fact...
...The "cardiac promptings of the moment," to quote one of Justice Benjamin Cardozo's happy phrases, affect us all...
...This is precisely what it did in its interpretation of the "separate but equal" doctrine (heretofore not illegal per se), as an inherently unconstitutional denial of the equality of all citizens in their enjoyment of legal privileges and immunities in the field of education...
...2. Even if we were to grant the contention that all matters affecting education are exclusively reserved to the several states, which is neither historically nor factually correct, the original suits arose out of charges that the educational practices involved violated the 14th Amendment which begins with the admonition: "No state shall make or enforce any law which shall abridge deprive deny...
...Would it have been easier for the Negro to wage the battle for equal suffrage rights...
...One may argue that the National Association for the Advancement of Colored People (NAACP), the leading instrumentality in bringing the cases, might have been wiser to choose the field of suffrage rather than education as the main target for its legal strategy, but that is not the Court's concern...
...The crux of the decision was that compulsory racial segregation in the public schools, engendered by the so called "separate but equal" doctrine, represents a violation of the equal protection of the laws guaranteed by the 14th Amendment of the Constitution...
...Finally leaving prudence and tactics aside, how long could the country afford to wait for reasons of simple morality...
...Perhaps referring to outside evidence constituted an error of judgment on the part of the Court...
...2) Its ruling invaded the area of "states rights...
...and although it was reached by due process of law and represented the exercise of the Court's firmly established power of judicial review, critics of the decision still profess to see it as an "illegal act" and, in many instances, continue to counsel obstruction, delay, and even defiance...
...Board of Education arose as a result of suits properly filed in four states and the District of Columbia, challenging the validity of laws and practices on the basis of their alleged violation of the equal protection of the laws clause of the 14th Amendment...
...Yet, as the great jurist contended, it can do so only interstitially...
...The evidence is dubious, judging from the present Negro voting patterns in the deep South...
...it is confined to "molar to molecular motions...
...4) It was a decision replete with "non-judicial" overtones, based on psychological and sociological views that have no place in an opinion of a judicial tribunal—in other words, that it was not "judging" but "legislating...
...The first three charges may be disposed of rather summarily: 1. The Supreme Court has jurisdiction in all cases of law and equity arising under the Constitution...
...Morality must provide the ultimate justification, and here the democratic case against school segregation is unanswerable...
...4. The heaviest artillery against the decision has come from those who contend that, by resorting to copious sociological and psychological evidence to document its opinion (particularly its famous footnote 11, citing authorities repugnant to the South), the Court had in fact legislated rather than judged...
...3. "Wise" or not, the Court did not select the issue involved in the decision: it was presented to it by petitioners...
...Before examining each of these criticisms, it is worth recalling exactly what the Court held...
...Of course, the Court "legislates" in the sense that it interprets the Constitution in the light of its growth and the "felt necessities of the times," in Justice Oliver Wendell Holmes' words...
...Criticisms of the Court's decision generally fall into four major categories: 1) It did not have the power to exercise jurisdiction in the case...
Vol. 44 • May 1961 • No. 22
