Chief Justice EARL WARREN achieved a unanimous decision in BROWN V. BOARD OF EDUCATION (1954) by assuring that enforcement of school DESEGREGATION would be gradual. Ordinarily, state officials found to be violating the Constitution are simply ordered to stop. Brown II (1955), however, instructed lower courts to insist only that offending school boards make "a prompt and reasonable start," proceeding toward full desegregation with "all deliberate speed."
This calculatedly elusive phrase was contributed by Justice FELIX FRANKFURTER, who had borrowed it from an old opinion by Justice OLIVER WENDELL HOLMES. Holmes attributed it to English EQUITY practice, but he may also have seen it in Francis Thompson's poem, "The Hound of Heaven." Whatever the phrase's origins, it was a thin cover for compromise. The objective presumably was to allow time for the white South to become accustomed to the end of SEGREGATION, in the hope of avoiding defiance of the courts and even violence. Robert Penn Warren, a southern man of letters who had not studied quantum mechanics, even tried to make gradualism in desegregation a historical necessity: "History, like nature, knows no jumps."
The South responded not with accommodation but with politically orchestrated defiance. A full decade after Brown I, two percent of southern black children were attending integrated schools. By 1969, the Supreme Court explicitly abandoned "all deliberate speed"; in ALEXANDER V. HOLMES COUNTY BOARD OF EDUCATION school boards were told to desegregate "at once."
No one pretends that the Supreme Court could have ended Jim Crow overnight, certainly not without support from Congress or the President. Yet the Court's...