Kevin D. Williamson | National Review Online
The Supreme Court’s 1954 decision in Brown v. Board of Education is one of the great landmarks of American history. It is also a good example of the fact that the law is not about the law. Maybe one in 500 college students ever has read the decision, and probably very few Americans could tell you much about the legal questions involved in Brown, but the moral question at the heart of the case — whether an apartheid regime of “separate but [formally] equal” would be allowed to stand in these United States — is well understood. It was well understood by the Court at the time, too: Remarkably, that contentious issue was settled in a unanimous decision. Even Hugo Black, a member of the Ku Klux Klan named to the Supreme Court by Franklin Roosevelt, was on board — but, in all fairness, Justice Black had not joined the Klan because he hated blacks: He had joined the Klan because he hated Catholics.
In any case, unanimity was the order of the day. Justice Felix Frankfurter thought that a unanimous decision was vital, even though a mere majority decision would have been just as legally binding — a fact to keep in mind the next time somebody tries to convince you that the Court is something other than a political body. It was not enough to have a decision in favor of desegregation: The country needed a mandate against segregation. It was in all likelihood death that made that unanimity possible: Chief Justice Fred Vinson, appointed by Democrat Harry S. Truman, had been hostile to overturning segregation without an act of Congress calling expressly for that. He died before Brown was decided. His replacement, Earl Warren, appointed by Republican Dwight D. Eisenhower, was eager to repeal segregation: He had been involved in fighting segregation in the California schools for some years, and as governor had signed the repeal of the last of the state’s segregation statutes.
