It is doubtful that there was any more significant Supreme Court decision in the 20th Century than Brown v. Board of Education. [1] Beginning in 1951, black students in Virginia and other states protested their unequal status in the state’s segregated educational system. Eventually, the NAACP proceeded with five cases challenging the school systems; these were later consolidated under what is now known as Brown v. Board of Education or “The Segregation Cases,” as Alexander Bickel refers to them in his book, The Least Dangerous Branch.[2]
Bickel had a unique understanding of the cases because he had clerked for Justice Frankfurter during the term immediately preceding the cases’ final hearing and decision by the court, and had drafted a memorandum for the justice outlining the history of the 14th Amendment as it pertained to the case. The case is important for The Least Dangerous Branch because it was the sensitive handling of this case (urged by Frankfurter), which was potentially politically explosive, that partially inspired Bickel’s book, which is an extended essay on how the Court can wisely exercise the powers it possesses under the Constitution.
Brown v. Board of Education and the Segregation Cases
In each of the Segregation cases as they reached the Supreme Court, Black minors sought admission to their local community public schools on a nonsegregated basis. The students had previously been denied entry to schools attended by white children under laws that mandated or allowed segregation based on race. The plaintiffs claimed that such segregation violated their rights to equal protection under the Fourteenth Amendment. In all but one case from Delaware, a three-judge federal district court denied relief to the plaintiffs, citing the so-called “separate but equal” doctrine established in its earlier decision in Plessy v. Ferguson. [3] Under Plessy, the state could argue that equality of treatment existed when the races were provided substantially equal facilities, even if those facilities were separate. The plaintiffs argued that segregated public schools are not truly “equal” and cannot be made so, and therefore, they are deprived of the equal protection of the laws. Recognizing the significance of the issue, the Court took jurisdiction, and the case was argued during the 1952 Term. Later in 1953, a re-argument was held to address specific questions posed by the Court. This re-argument focused on the historical situation surrounding the passage of the 14th Amendment and its intent.
Finally, on May 17, 1954, the Court rendered its decision. Chief Justice Warren, speaking for the Court held that segregation of white and black children in the public schools solely based on race, pursuant to state laws permitting or requiring such segregation, denied to impacted children the equal protection of the laws guaranteed by the Fourteenth Amendment — even though the physical facilities and other “tangible” factors of white and Negro schools may be equal.
The Basis and Reasoning of the Court
As readers will recall, the 14th Amendment reads in part:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [4]
The earlier case of Plessy v. Ferguson had concluded that separation of the races was justified and constitutional if the education received was equal. The Reasoning of the Court
In their briefs to the Supreme Court, the plaintiffs argued that even where school districts provided equal resources and facilities to both white and black schools, the underlying rationale for segregation remained a belief that black students are inferior to white students, a message that detrimentally impacted Black children and their educational, mental and emotional development. The NAACP brief was a kind of “Brandeis brief,” filled with scientific and sociological evidence that supported the children’s plea. It relied heavily on historical and social science research to demonstrate the detrimental impact of segregation on black students. The Court agreed with the analysis. [5]
The Decision of the Court
Delivering the unanimous opinion of the Court In Brown v. Board of Education, Chief Justice Earl Warren seemed to accept this line of reasoning. He wrote of black children, “To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
Two passages state the conclusions of the Court:
We come then to the question presented: does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.[6]
Again, later in the opinion:
We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.[7]
The Court accepted the plaintiff’s argument that it was simply impossible for separate schools to be equal in any fundamental way, and that an educational system tallowingsuch a situation would inevitably be unequal, thus depriving students of Equal Protection under the law.
All Deliberate Speed
While Brown v. Board of Education declared the system of legal segregation of the races in schools unconstitutional, there was more to be done in order that its goal might be achieved. One year after the original decision the Court issued what is known as “Brown II.” [8] In Brown II, the Court ordered the states to end segregation with “all deliberate speed.” Generally, when a court enters an order, such as “Stop doing this,” the order has an immediate effect. With school desegregation, the situation was much different. In this instance, the Court concluded that, to achieve the goal of desegregation, the lower federal courts were to “enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.”
For nearly a century, segregated school districts existed. There were duplicate buildings, teachers, administrators, and other resources that would have to be unified, or some schools would need to close while others opened. No single party in one lawsuit was directly affected. Changes had to be implemented not only in Topeka, Kansas, but in many other places. There was a significant danger that, especially in the South, public schools might be shut down entirely. Additionally, there was almost certain legal resistance led by certain southern politicians. In fact, to some extent, all the negative outcomes considered by the Supreme Court in their judgment did occur.
The Supreme Court, in Brown v. Board of Education, used the phrase “with all deliberate speed” with some degree of thought. Justice Oliver Wendell Holmes used the term in his 1912 decision in Virginia v. West Virginia, stating that “A question like the present should be disposed of without undue delay. But a state cannot be expected to move with the celerity of a private businessman; it is enough if it proceeds, in the language of the English Chancery, with all deliberate speed.” [9] Virginia v. West Virginia was a case stemming from the division of West Virginia and Virginia during the American Civil War. After the war, it was necessary to determine what proportion West Virginia should pay of the indebtedness of Virginia for improvements in that state at the time of their separation. [10]
Not everyone was satisfied with the Court’s decision in Brown II. As Thurgood Marshall (who argued the case and was later an Associate Justice) and other civil rights lawyers considered the second ruling, they tried to understand what the Court meant by adding the crucial phrase “all deliberate speed” to its opinion. It is reported that after reading the decision, a staff member checked a dictionary to confirm their worst fears — that the phrase “all deliberate speed” meant “slow,” and that the supposed victory was undermined because resisters were allowed to end segregation on their own timetable.
As a practical matter, the requirement for slowness resulted from discussions in the Court and the kind of compromise needed to reach unanimity on such an important decision. Certain members of the court agreed to join the unanimous majority opinion understanding that the eventual decree would allow for gradual enforcement by local courts as they implemented the decision in specific cases before them. [11]
Justice Felix Frankfurter used the phrase several times before Chief Justice Warren made it famous in Brown II. In fact, it was Frankfurter who argued for the phrase “all deliberate speed” clause in Brown II, a clause meant to prevent states and school boards from obstructing and delaying the law’s implementation, not simply to permit delay. In Cooper v. Aaron, the court clarified this point. In many cases, district courts could order immediate desegregation. However, the court was willing to adopt exceptions:
On the other hand, a District Court, after analysis of the relevant factors (which, of course, excludes hostility to racial desegregation), might conclude that justification existed for not requiring the present nonsegregated admission of all qualified Negro children. In such circumstances, however, the Court should scrutinize the program of the school authorities to make sure that they had developed arrangements pointed toward the earliest practicable completion of desegregation, and had taken appropriate steps to put their program into effective operation. It was made plain that delay in any guise in order to deny the constitutional rights of Negro children could not be countenanced, and that only a prompt start, diligently and earnestly pursued, to eliminate racial segregation from the public schools could constitute good faith compliance. State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.[12]
In Cooper v. Aaron, the court clarified that “all deliberate speed” was not intended to be used as a delay tactic or to create an environment that could undermine the decision. The phrase meant committing every reasonable effort to achieve the goal of desegregation. In retrospect, it is hard to see how the Court could have proceded more wisely or quickly.
Conclusion
At each critical juncture in the Least Dangerous Branch, Bickel references Segregation Cases. Throughout his book, he seeks to show the delicate balance required between an authoritarian, unelected judiciary and a more reasonable, democratic approach, which he calls the “approach of principle.” To create a democratic judiciary, the court must be willing to adhere to principles while also accepting the limitations on those principles as they are applied over time.[13]Bickel has had his detractors. One of them famously observed that his approach amounted to advocating “100% insistence on principle, 20% of the time.”[14]
Why did the Segregation Cases cast such a heavy shadow over the author? I believe the answer lies in the allure these cases held for the Court, an allure that the Warren Court found increasingly hard to resist. The lure was to apply what the justices perceived as the underlying principles of the Constitution in a manner that assumed “every right-thinking person” would ultimately agree. Unfortunately, this was not the case, leading to unintentional division within the nation and a loss of respect for the Court. Over the following 20 years, the court repeatedly fell into this same trap—nowhere more disastrously than its forays into fundamentally moral and sexual matters. That discussion, however, must wait for another day.
As one commentator put it:
In The Least Dangerous Branch and in subsequent writings, Bickel warned progressives not to race ahead too quickly; not to press the Court to recognize rights divorced from principles rooted in national experience; and not to forget that the Court undertakes its work in the context of a broader set of governmental and societal institutions. Progressives and conservatives alike ignore those lessons at their own peril.[15]
For the time being, it is sufficient to remember that, in many ways, the Segregation Cases marked the end of a long march toward racial equality that began in 1861. During the 1960s, additional legislation and decisions were made, but the decisive battle had already been fought in the segregation cases. America would be desegregated and intolerant of attempts to reintroduce any form of racial segregation into American life. Behind Brown v Board of Education, there lurks the figure of Felix Frankfurter and his clerk, Alexander Bickel, who worked to be sure that the Court made the correct decision and in a way that would enhance the prestige of the Supreme Court, which the Segregation Cases clearly did.
I sometimes forget that these blogs are intended to reveal something about the wise and loving life for those interested in a deeper dive into wisdom. Plessy v. Ferguson and the earlier Civil Rights cases represented a court that was acting in immediate political expediency, forgetting the longer-term results of continuing the plague of segregation in the South. Brown v. Board of Education was a long-awaited righting of an ancient wrong. Our situation is not the same, and we do not always agree on what the wise and loving course of action might be—but it is seldom right to simply follow popular opinion and embrace the prejudices of an age.
In future blogs, I will demonstrate how certain mistakes made during Reconstruction and after its end harmed both the Court and the American people. This indicates that the Court is a court of law, not a mini-legislature. When the Court uses its power unwisely to support the “spirit of the age”, it often makes serious errors. Judges are not better than the rest of us in divining the future–and must avoid the delusion that they understand the best future for 300 million people.
Copyright 2025, G, Christopher Scruggs, All Rights Reserved
[1] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)
[2] Alexander Bickle, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, IN: Bobbs Merrill, 1962).
[3] Plessy v. Ferguson 163 U.S. 537 (1896).
[4] Constitution of the United States of America, Amendment XIV (1868).
[5] Makiah Lyons, & Paige Duggins-Clay, “Brown vi Board of Education—The Law in Education” (June 12, 2024) https://www.idra.org/education_policy/brown-v-board-of-education-the-law-in-education/ (Downoaded September 12, 2025).
[6] Brown v. Board of Education, cited above.
[7] Id.
[8] Brown v. Board of Education (No. II) 49 U.S. 294 (1955).
[9] Virginia v. West Virginia 222 U.S. 17 (1911).
[10] Virginia v. West Virginia, 220 U.S. 1 (1911).
[11] See John A. Powell “9. Why All Deliberate Speed?: Using Brown to Understand Brown” om Stewart, Mac A. The Promise of Justice: Essays on Brown v. Board of Education. The Ohio State University Press, 2008. Project MUSE. https://muse.jhu.edu/book/27872 (downloaded September 25, 2025).
[12] Cooper v. Aaron, 358 U.S. 1 (1958).
[13] Least Dangerous Branch, 244.
[14] Gerald Gunther, The Subtle Vices of the “Passive Virtues”—A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1, 3, 24 (1964).
[15] Adam White, “Bickel’s principled Prudence” Online Alexander Bickel Symposium August 15, 2012 https://www.scotusblog.com/2012/08/online-alexander-bickel-symposium/ (downloaded September 12, 2025).