US Law Week

INSIGHT: Defending Brown and the Rule of Law

May 17, 2019, 8:00 AM

May 17 marks the 65th anniversary of the U.S. Supreme Court’s landmark decision in Brown v. Board of Education, most famously known for its role in declaring segregated education unconstitutional. It is widely recognized as one of the most consequential decisions of the modern Supreme Court. But Brown is less recognized today for its role in transforming the American legal system.

It has perhaps been forgotten that prior to Brown, white supremacy was a central feature of the American legal system. The legal profession itself was a primary abettor of Jim Crow. It promoted, maintained, and defended segregated law schools. It was not until the Supreme Court’s 1950 decision in Sweatt v. Painter that southern law schools began admitting Blacks.

The indignities faced by Black lawyers practicing in southern courts in the decades before Brown were both big and small. In the middle of the 20th century, Thurgood Marshall and the lawyers bringing incredibly consequential civil rights cases could not even eat in the cafeteria in many of the federal courthouses where they brilliantly argued. Famished at the end of the first day of trial in his ultimately successful 1947 challenge to the exclusion of Black applicants from the University of Oklahoma Law School, Marshall told his client, Ada Sipuel, “tomorrow I’ll try the case, and you bring the bologna sandwiches.”

Local counsel litigating school desegregation cases in federal court in Mississippi with Constance Baker Motley in the 1950s had to negotiate with attorneys for the defendant school board to ensure that Motley would be referred to as “Attorney Motley” in the courtroom and not by her first name. In other courtrooms, white judges on the bench even turned their backs when Black lawyers made their arguments in court.

Few African Americans were hired as clerks or secretaries in federal courthouses. Thurgood Marshall integrated the secretarial pool at both the Second Circuit Court of Appeals and the Supreme Court in the 1960s, then he brought Alice Stovall with him from the NAACP Legal Defense and Educational Fund.

In short, the legal system within which courageous and pioneering civil rights lawyers methodically toiled was as hideously warped by white supremacy as almost every other institution in American public life. Brown broke segregation in schools, but it also broke segregation in the courthouse.

Decision Awakened Federal Courts to Constitutional Role

But that’s not all. Most significantly, the Brown decision awakened the federal courts themselves to accept the importance of their role in giving meaning to the Constitution as the “supreme law of the land.”

Where racial discrimination was concerned, the Supreme Court had shamefully abdicated enforcement of this constitutional principle for most of the first half of the 20th century.

In Giles v. Harris in 1903, for example, the Supreme Court recognized that Alabama officials were violating the Constitution by refusing to register Black voters, but refused to order relief because it believed that “relief must be given by the legislative and political departments of the United States,” not the judicial branch.

Brown opened the door to a robust new role for the federal judiciary in enforcing the constitutional rights of racial minorities.

Brown also democratized the image of the lawyer in our society.

The brilliant civil rights lawyers who executed the 20-year strategy that culminated in Brown inspired thousands of young people over multiple generations to believe that the law could be a tool for transformative change.

Thurgood Marshall helped change the image of the lawyer from that of the stodgy businessman. His self-deprecating and wryly humorous depiction of the real physical danger that confronted Black lawyers litigating civil rights cases in the south exhibited a casual kind of courage that so many lawyers wanted to emulate.

Constance Baker Motley fearlessly and coolly taking on officials at Ole Miss and the University of Georgia wearing silk shantung suits and pearls inspired generations of Black women lawyers.

Litigation strategy itself was influenced by Brown. The painstaking decades-long litigation effort designed to destroy Jim Crow in the courts, the careful selection of plaintiffs and geographic locations for litigation, were all innovations virtually patented by the lawyers in Brown and subsequently embraced by lawyers across the profession—including most brazenly, decades later, by conservative legal organizations seeking to undo many of the jurisprudential advances that emanated from Brown.

Transformed U.S. Legal System

It is important to remember how Brown singularly transformed our legal system. Ironically, many lawyers seem to have forgotten this history. Nearly 30 judicial and senior administration nominees have recently refused to affirm that Brown was correctly decided.

Jeffrey Rosen, President Donald Trump’s recently confirmed nominee to serve as deputy attorney general, refused to answer questions about Brown because, he complained, he cannot be expected to comment on “thousands of Supreme Court opinions” decided by the court. The refusal of these nominees to embrace Brown has been met with outrage by the civil rights bar, but surprisingly by silence from the mainstream bar, which has for decades fully and publicly embraced Brown’s significance.

Perhaps our profession is long overdue for a refresher on precisely how much we owe to Brown. Simply put, Brown strengthened the legitimacy of the American legal system. Among “thousands of Supreme Court opinions” litigated in the 20th century, it had the most sweeping effect on the power exercised by the federal courts, on litigation strategy, and on the role of lawyers and judges in transforming our democracy.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Sherrilyn Ifill is the seventh president and director-counsel of the NAACP Legal Defense and Educational Fund Inc. (LDF). The litigation of Brown v. Board of Education was conceived of, argued, and won by LDF attorneys.

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