The Southern Case for School SegregationKilpatrick, James Jackson
History
The Southern Case for School Segregation
Kilpatrick, James Jackson
African Americans -- Segregation; Segregation -- Southern States
It is difficult--impossible might be a better word--to guess at the
outcome of a Supreme Court case by attempting to read the minds
of the judges through the questions asked from the bench. Here,
however, it seemed unusually clear that the court was seriously
divided. Burton indicated the course that ultimately was to be taken.
During argument on the Topeka case, he put a question to Paul E.
Wilson, assistant attorney general of Kansas: “Don’t you recognize
it as possible that in seventy-five years the social and economic
conditions of the Nation have changed so that which might have been a
valid interpretation of the Fourteenth Amendment seventy-five years
ago would not be valid today?” Wilson replied that he recognized the
possibility, but did not believe the record disclosed such a change.
Evidently recalling some of Judge Parker’s language in the Clarendon
County decision, Burton persisted: “But that might be different from
saying that these courts of appeals and State supreme courts have
been wrong for seventy-five years?” Wilson agreed, but made the point
that until the Supreme Court itself overturned its own precedents,
no other guide to the law was available. When John W. Davis arose
to argue the South Carolina appeal, Burton put the same question to
him. Davis said: “My answer to that is that changed conditions may
affect policy, but changed conditions cannot broaden the terminology
of the Constitution.” Changes in social or economic conditions,
Davis thought, raised “an administrative or political question,
not a judicial one.” Burton subsided with a remark that he viewed
the Constitution as a living document “that must be interpreted in
relation to the facts of the times in which it is interpreted.”
Pointedly stating a conflicting view, Frankfurter interrupted
Thurgood Marshall’s argument at one point to recall that the court
recently had upheld the power of Louisiana to restrict the calling
of river pilots “to the question of who your father was.” The court
sustained that legislation, he said, “not because we thought it
admirable or because we believed in primogeniture, but because it
was so imbedded in the history of that problem in Louisiana that we
thought on the whole that was an allowable justification.”
At the conclusion of the argument, attorneys on both sides were
hopeful. The Negro forces felt reasonably certain they had Douglas,
Black, and Burton; the State attorneys thought they had impressed
Jackson, Minton, Frankfurter, and probably Clark. Vinson and Reed
were question marks. It was anticipated that a decision would be
handed down by a divided court some time in March or April.
Public-domain text, read in full here on John Shaqi.
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