Brown's reflection.

• Author: Burt, Robert A.
• Position: Brown II - Response to article by Del Dickson in this issue, p. 1423

Just one week separated the Supreme Court's announcements of its decisions in Brown II(1) on May 31, 1955, and Williams v. Georgia(2) on June 6, 1955. Del Dickson's fascinating account of Williams reveals the two decisions to be mirror images. Through his reconstruction of the Justices' deliberations in Williams, Professor Dickson shows the Court struggling with the same jurisprudential issues as in Brown II and reaching a virtually identical resolution--one that was novel, confusing, and ultimately misunderstood.

The conventional account today of Brown II is that the Justices were so acutely aware of the political vulnerability of their 1954 decision in Brown I--so fearful about the prospects of Southern resistance to school desegregation and the Court's practical impotence in forcing compliance--that they retreated from the high ground of constitutional principle by endorsing the "deliberate speed" implementation formula. Some critics have maintained that the Court committed a strategic error in Brown H; they argue that the white Southern elite would have accepted a clear-cut desegregation order and obtained at least grudging popular acquiescence among its constituents, but the Court's pronounced tolerance for delay opened the way for successful demagogic appeals to massive popular resistance.(3) Others have faulted the Court, regardless of its strategic sense, for allowing its fear of popular resistance to lead it to compromise and thereby abandon constitutional principle.(4) These critics have readily invoked such honored aphorisms as "justice delayed is justice denied" or "fiat justicia ruat caelum," the Latin formula which, as Dickson has ironically observed, is inscribed in marble above the Georgia Supreme Court's bench. Even Alexander Bickel, who praised Brown II as a proper acknowledgement by the Justices of the tensions between "principle" and "expediency" in a democratic polity, seemed to undermine his own approbation by his very terminology.(5)

But the Court's decision in Williams v. Georgia provides a different perspective on the Justices' contemporaneous deliberations in Brown II. Whatever the Justices might have feared regarding elite or popular reception of any order for immediate school desegregation, they had no remotely comparable reason to anticipate resistance to an order for a new trial for Aubry Williams. Just two years earlier, in Avery v. Georgia,(6) the Supreme Court had ruled that the jury selection process later at issue in Williams was unconstitutional; and the state court had acquiesced, setting aside James Avery's death sentence and imposing a prison term instead based on his guilty plea.(7) The next year, the Georgia Supreme Court--though affirming Williams' death sentence on procedural grounds--openly, and apparently ungrudgingly, acknowledged that the racially discriminatory jury selection practice used in Williams' case had "been condemned by this court and the Supreme Court of the United States."(8) The Georgia Court issued its opinion, with this recognition of the constitutional guarantee against race discrimination and the Supreme Court's role in its effectuation, on May 10, 1954--just ten days before the Supreme Court announced its decision in Brown I.

If the Supreme Court thus had no reason to fear that a decision invalidating Aubry Williams' conviction based on race discrimination would be met by Southern white resistance, why nonetheless did the Court hesitate to reach this result? The Court adopted virtually the same approach in Williams v. Georgia as it had in Brown II one week earlier: pointing to the antidiscrimination principle that the state had violated, implying that the Court itself had clear authority to order immediate redress of this violation, but nonetheless declining to exercise this authority while at the same time clearly expressing its hope and expectation that the state would voluntarily repent. If the unusual resolution in Williams was prompted by some motive other than a fear of noncompliance, other than "political expedience" in this sense, that motive might suggest an explanation for the Justices' similar resolution in Brown II.

Although Professor Dickson has not identified any single, clear-cut motive for the Court's action in Williams, some plausible speculations do arise from his account. It is evident from the Justices' deliberations that most of them were convinced that the Georgia courts had not invoked their procedural ground as a ruse to deny Williams' constitutional right against race discrimination; accordingly, the Justices were troubled about the basis for their jurisdiction, in light of the apparently independent, adequate state procedural ground. At the same time, a majority of the Justices were unwilling to let the matter pass. This much is clear from their ultimate disposition. But why? What was it about Williams' case that nagged at the Court majority and made them unwilling to adhere to their own initial impulse to deny certiorari or to the persistent imprecations of successive squads of their (Harvard-trained) law clerks?

Although at various points in their deliberations several of the Justices spoke about the special force of the death penalty, it nonetheless seems likely that Williams' sentence was not the primary impetus for the Court's reluctance to decline intervention. In the opening paragraph of his dissent, Justice Clark set out the perspective that almost certainly was shared by most members of the Court at that time:

While I, too, am not deaf to the pleas of the condemned, I cannot

ignore the long-established precedents of this Court. The proper

course, as has always been followed here, is to recognize and honor

reasonable state procedures as valid exercises of sovereign power. We

have done so in hundreds of capital cases since I have been on the

Court, and I do not think that even the sympathetic facts of this case

should make us lose sight of the limitations on this Court's powers.(9) There was no Court majority in 1955 pressing against the existence of capital punishment; whatever distaste the Justices might have had for it, they were not then intent on combating the legitimacy of the death penalty.(10)

In 1955 there was a Court majority--indeed, unanimity--for a different proposition, unrelated to capital punishment as such: the Brown I proposition that race discrimination was a moral blight and a constitutional wrong that had been practiced in the South and tolerated in the North for too long.(11) By 1955, the Justices had struggled together for more than a decade about the relationship between the moral and the constitutional status of Southern race discrimination. Questions about the morality and constitutionality of racial subordination were of course as old as the American republic, but the Second World War had powerfully intensified their moral salience. In his influential study published in 1944, the War still raged, Gunnar Myrdal emphasized this changed context, drawing conclusions for American legal institutions specifically: [I]n this War the principle of democracy had to be applied more explicitly to race [than in the First World War]. Fascism and nazism are based on a racial superiority dogma--not unlike the old hackneyed American caste theory--and they came to power by means of racial persecution and oppression. In fighting fascism and nazism...