McMahon shows how FDR's attempt to strengthen the presidency and undermine the power of conservative Southern Democrats dovetailed with his efforts to seek racial equality through the federal courts. By appointing a majority of rights-based liberals deferential to presidential power, Roosevelt ensured that the Supreme Court would be receptive to civil rights claims, especially when those claims had the support of the executive branch.
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Reconsidering Roosevelt on Race
How the Presidency Paved the Road to Brown
By Kevin J. McMahon
THE UNIVERSITY OF CHICAGO PRESS
Copyright © 2004 The University of Chicago
All right reserved.
Introduction The Day They Drove Old Dixie Down
Shocked." That was the word Governor James "Jimmy" Byrnes of South Carolina used to describe his reaction to the Supreme Court's decision in Brown v. Board of Education. Byrnes had expected the Court to uphold the "separate-but-equal" doctrine when it issued its opinion on school segregation on May 17, 1954. But it didn't. Instead, Chief Justice Earl Warren announced in a firm clear voice that in the area of education the Plessy doctrine was no longer the law. The South would have to comply.
As the leader of the first state to secede from the Union, the seventy-two-year-old Byrnes was an uncommon man. Besides the sitting justices, only he and one other person alive knew the experience of being on the nation's highest tribunal. Appointed as an associate justice by Franklin D. Roosevelt on the eve of America's entry into World War II, Byrnes gave up his judicial post after serving just over a year to head the war mobilization effort as the "assistant president." Elected governor in 1950, he sought to use his first-hand knowledge of the Court by equalizing South Carolina's schools in an attempt to undercut the National Association for the Advancement of Colored People's (NAACP) legal attack on Plessy. While recent Court action clearly indicated a decision in favor of the civil rights organization, Byrnes felt that he could still save segregation.
In turn, he sought to establish a record of rapid improvement in South Carolina's treatment of African Americans and to counter the NAACP's years of effort in the legal and political arenas. Along with his $75 million school-building equalization program, Byrnes pushed through legislation intended to end Ku Klux Klan activities in his state by outlawing "the public wearing of masks by adults or the burning of crosses on private property without the owner's consent." To challenge the NAACP in court, he convinced one of the most respected and politically influential attorneys in the nation-John W. Davis-to argue the South's position before the justices. Davis, the 1924 Democratic presidential nominee and a veteran of more than 250 Supreme Court cases (more than any other twentieth-century attorney), was confident that precedent was on South Carolina's side. Having already broken with President Harry Truman, Byrnes also courted GOP presidential candidate Dwight Eisenhower in an attempt to set himself up as the South's power broker in the 1952 election. With reestablished clout in Washington, he felt he could influence an Eisenhower administration's position on the desegregation cases. Finally, Byrnes visited the Supreme Court in the spring and summer of 1953, where he "lobbied two old friends," Chief Justice Fred Vinson and Associate Justice Felix Frankfurter. With all of this activity, the former justice sought to persuade the Court (and the new administration) that it was unnecessary to overturn Plessy, arguing that southern states were now upgrading black schools and a ruling against the South would unleash powerful forces of resistance. In other words, such a decision would end his brand of moderately conservative political leadership below the Mason-Dixon line.
To many, despite Davis's confidence, Byrnes's effort to produce a decision sympathetic to the South seemed unlikely to end in success. Although the Court had never directly challenged the separate-but-equal standard in its previous rulings, for years it had consistently sided with the NAACP position in a range of cases concerning race. As early as April 1941, guided by a Justice Department brief, a Court of eight-with five Roosevelt justices in place-united to support an African American congressman's complaint against the Interstate Commerce Commission. Never before had the Justice Department submitted an amicus curiae brief on behalf of a black defendant. In 1946 the Court, with only the newly seated Truman appointee Harold Burton dissenting, sided with a black woman who had refused to move to the back of an interstate bus. Two years later, again at the Justice Department's urging, all six participating justices concluded that racially restrictive covenants in housing could not be enforced in state court, virtually making them null and void. In cases decided in 1948 and 1950, the Court turned to the question of school segregation in higher education, methodically and unanimously developing the precedent necessary to support Brown. "Discussions among the justices in the 1950s cases," moreover, showed "that they were ready to abandon" the Plessy doctrine. Indeed, by 1944, it was clear that the newly created Roosevelt Court would practice a new style of progressivism when addressing the issue of race. In that year, the Court overturned a unanimous ruling just nine years old and invalidated the white primary, a device that was then thought to be the most effective legal measure for keeping African Americans out of the South's one-party political process. With this ruling (Smith v. Allwright), the Court initiated a decade-long undertaking that called into question the constitutionality of the southern states' segregation statutes, culminating in Brown v. Board of Education.
Given this string of decisions, it is difficult not to wonder whether Byrnes feigned his amazement at the result in Brown-to question whether or not his shock was that of the Captain Louis Renault variety in the film Casablanca. Indeed, of all the southern leaders commenting on the decision the day of its announcement, Byrnes's surprise, coupled with his hope for a reversal, was a rare reaction. Most others expressed disappointment, outrage, even acceptance. To the extent that southerners shared in Byrnes's surprise, it was due more to the unity of the Court than to the ruling itself. As the Atlanta Constitution put it, "the South has three representatives on the court in Justices Black of Alabama, Clark of Texas and Reid [sic] of Kentucky, which is a border commonwealth. Expectations had been that the South's traditional stand on segregation would be upheld by some of these at least." In Brown, it wasn't.
But while Byrnes's reaction may have been odd, it should not be disregarded. With their decision in Brown, the justices completed a dramatic turn in American law that rejected the defining institutions of the South and endorsed the ideal of a more inclusive democracy. First as an influential senator, then as a justice, and finally as a member of both the Roosevelt and Truman administrations, Byrnes had been at the center of the political regime that created this Court. Perhaps more than any other elected southern official, it could be said that the Court's transformation on race had occurred on his watch. In this light, his surprise should not be surprising at all. Rather, his emotions as well as his efforts to save Plessy suggest a profound misunderstanding-if not denial-of the Court's institutional mission following the "constitutional revolution of 1937." Given this mission, Byrnes's search for a compromise was destined for failure. It represented the thinking of a skilled legislator, a status Byrnes had achieved in his twenty-four years in Congress, not of a successful jurist, a label few would attach to him. Thus, in Brown the justices unanimously rejected the governor's late-day attempts to save segregation by stressing that separate schools based on race could not be made equal-as South Carolina had sought to do-for they were "inherently unequal."
The Origins of the Supreme Court's Civil Rights Decisions
How did this judicial transformation occur? How did this Supreme Court emerge as such a unified opponent of segregation? Countering conventional wisdom about their inability to significantly sway judicial interpretation, I argue that presidents, especially "reconstructive" presidents like FDR, are powerful agents of constitutional change. Under the influence of these presidents, Supreme Courts are predisposed to follow the command of the executive branch. In turn, I suggest that the civil rights decisions are the byproducts of an institutional mission-embraced by the Court-that was significantly shaped by what I call the "judicial policy" of the Roosevelt administration, a policy that was itself a consequence of FDR's management of divisions within the Democratic Party and of his construction of the modern presidency. Put another way, FDR's conclusion that "southern democracy" was incompatible with his vision of a thoroughly liberal Democratic Party and with his institutional design for an executive-dominated national government served as a mainspring for the Supreme Court's later commitment to federal civil rights protection. To be sure, this assessment does not transform FDR into a radical reformer on race. His decisions were driven more by the demands of intraparty management and his own institutional desires than by a personal commitment to the African American cause. And while his administration laid the institutional foundation for the development of the Court's civil rights doctrine of the 1940s and 1950s, it must be made clear that others built the house.
In developing this argument, I focus on three inquiries made by southerners on the day of Brown's announcement. First, why did a Court largely staffed soon after the constitutional crisis of the 1930s issue such an activist decision? After all, as the New York Times reminded its readers, "five of the nine Supreme Court Justices who today outlawed race segregation in public schools were appointees of President Franklin D. Roosevelt." It had been only seventeen years since FDR's historic fight with that tribunal to ensure Congress's ability to regulate the economy as it saw fit. Now, all of the Court's members-even those who for years had preached judicial restraint-had, in the words of Georgia's Governor Herman Talmadge, "blatantly ignored all law and precedent." Echoing his governor's sentiment, Senator Richard Russell issued a declaration that reminded many of the late president's attempt to "pack" the Court. "Ways must be found to check the tendency of the court to disregard the Constitution and the precedents of able and unbiased judges to decide cases solely on the basis of the personal predilections of some of its members as to political, economic and social questions."
While anger over the justices' activism stirred emotions, it masked the partisan makeup of the Court. And in the days following Brown, few southern voices had an answer to a second, more implicit, question. Why would a court dominated by justices appointed by two Democratic presidents-and approved with the overwhelming support of southern senators-issue a ruling so harmful to southern democracy? Rather, southern leaders tended to ignore the essence of this inquiry by fixing their sights on the new chief justice, the only member of the Court appointed by a Republican president. After all, as late as December 1952-the time of the first oral arguments in Brown-many in the South thought segregation would survive. For his part, Byrnes predicted that the NAACP would lose decisively, with only Justice William O. Douglas supporting Plessy's demise. Instead, despite the lame-duck Truman administration's restrained attack on the separate-but-equal doctrine in the government's brief, a Fred Vinson-led Supreme Court unanimously held the case over for reargument and invited the incoming Eisenhower administration both to take part in oral arguments and to submit a brief. Warren's addition to the mix following Vinson's death in 1953, coupled with Eisenhower Attorney General Herbert Brownell's reserved support of the NAACP's position in the government's "supplemental" brief, must have upset the balance. Only "under the duress" of these two men, South Carolina Senator Burnet Maybank concluded, could the Court have reached this "shameful political edict." Simply stated, "had the Democrats been in power, the decision would never have been made." Joining in this South Carolina chorus, Senator Olin D. Johnston reasoned that with Warren and Brownell in command, the Court had made "a flagrant, direct appeal for the political favor of minority groups."
In their assault on Warren, southern leaders took aim at not only his leadership but the nature of his opinion as well. Senator Russell, the self-proclaimed voice of Georgia, underscored that "for the first time, the Court admittedly substitutes psychology for law and legal precedent in construing the Constitution." Other southerners, including Byrnes, accused the scholars cited by the Court as being "members of Communist front organizations." These comments led to a third question. Why did the Court use social science-in its famed footnote 11-to support its conclusion that segregated schools violated the Fourteenth Amendment? To be sure, the use of this evidence was no small matter. Along with southern attacks, it opened the Brown decision to significant criticism from members of an otherwise friendly legal community. For example, Edmond Cahn noted in 1955 that he would "not have the constitutional rights of Negroes-or of other Americans-rest on any such flimsy foundation as some of the scientific demonstrations" cited in Brown.
Nevertheless, the deed was done. Jimmy Byrnes's early efforts to prevent President Truman's renomination as the Democratic candidate in 1952, combined with his support for the Republican Eisenhower over the Democrat Stevenson, had blown up in his face. Congressional sentiment held that such "bolting" southerners had been "badly hurt" by the decision. Senator Russell-described as "the most powerful southerner in the Senate"-did provide some political cover for the South Carolina governor. To him, the Court, dating back to the Truman administration, had formed into "a pliant tool" of the Attorney General, a mere "political arm of the Executive Branch of the Government." Once the Eisenhower Justice Department decided to continue the Truman administration's stance on segregation, Plessy's fate was sealed.
Summary of the Argument
Since Russell's initial assessment of the origins of the Supreme Court's decision, many have followed. In the years since, Brown and the Court's civil rights decisions leading up to it have alternatively been understood as: (1) a reflection of the "current of history," (2) a consequence of the NAACP's effective organization and advocacy, (3) an expression of the national political regime, and (4) a result of an independent judiciary convinced of the evils of Jim Crow. While each of these explanations offers insights into the origins of these decisions, none can fully answer the three concerns southern leaders articulated following Brown. Namely, why did a court supposedly committed to judicial restraint issue such an activist decision? Why did the Democratic white South suffer a dramatic loss before a court filled with eight justices appointed by Democratic presidents? And why did the Court employ social science in its unanimous ruling? These questions inform the focus of this book.
Excerpted from Reconsidering Roosevelt on Race by Kevin J. McMahon Copyright © 2004 by The University of Chicago. Excerpted by permission.
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Table of ContentsAcknowledgments
1. Introduction: The Day They Drove Old Dixie Down
2. The Incongruities of Reform: Rights-Centered Liberalism and Legal Realism in the Early New Deal Years
3. FDR's Constitutional Vision and the Defeat of the Court-Packing Plan: The Modern Presidency and the Enemies of Institutional Reform
4. "Approving Legislation for the People, Preserving Liberties—Almost Rewriting Laws": The Politics of Creating the Roosevelt Court
5. A Constitutional Purge: Southern Democracy, Lynch Law, and the Roosevelt Justice Department
6. The Commitment Continues: Truman, Eisenhower, and the Civil Rights Decisions
7. Conclusion: The Road the Court Trod
What People are Saying About This
A fabulous study and a great story. Through his innovative examination of FDR's strategic decision to promote civil rights through a reconstructed federal judiciary, McMahon makes an original and important contribution to civil rights history and the determinants of constitutional change. Highly recommended.