Earlier this week, we learned with much sadness that Linda Carol Brown had passed away. Linda, you may recall, was the little girl who could not attend the all-white school just 5 blocks from her home. Instead, she had to walk through the Topeka, Kansas, rail-yard to get on a bus that would take her several miles away to a segregated school.
Linda’s father thought his daughter should be able to attend the neighborhood school, and he sued the Topeka Board of Education to make that a reality for his little girl. The case, famously, wended its way to the U.S. Supreme Court where a unanimous court overruled Plessy v Ferguson (1896) and declared that “separate is not equal” in public education.
In Plessy, there was but one dissenting vote, that of Justice Harlan who wrote: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” His was a solitary, but barely audible, voice crying in the legal wilderness of the late 19th Century. It would take more than another half century for change to come.
In the wake of Linda Brown’s passing, it is fitting to reflect on the landmark case of Brown v Board of Education. And it is important to consider what many do not know - the decision almost went the other way. At the halfway mark of the last century, segregation was enshrined into law in many states and, in other states where segregation was not legally protected, it was nonetheless practiced openly.
Brown v Board of Education was first argued in December, 1952 and, at the time, many thought it unlikely the Supreme Court would reverse Plessy even though the appellant firmly established that legal segregation harmed black children. The Court was deeply divided and, in June of 1953, ordered that the case be re-argued.
But before the re-argument scheduled for September 1953, Chief Justice Fred Vinson died in his sleep. His replacement, California's governor Earl Warren, took the time and made the effort to move a seemingly intractable mountain. He did what many thought impossible: he built a consensus of his fellow justices, and - in the end - brought even the most recalcitrant justices along.
The result of Earl Warren's labors was a unanimous decision that declared: “[I]n 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.”
These many years later, we remain indebted to Linda Brown, her father, and an extraordinary team of lawyers led by Thurgood Marshall, who would later join the Supreme Court, for their skill, courage and tenacity in challenging a holding repugnant to the first “self-evident” truth stated in our nation’s founding document – “that all men are created equal.”
And we remain mindful of the fact that the replacement of even one justice on the nation’s highest court can change the course of history.
With that thought in mind, we must do everything in our power to ensure that the balance of power in the next Senate is one that will soundly reject any Trump nominee to the high court – and every other federal court – whose judicial moorings suggest he or she would take our nation backwards. Among the current Supreme Court justices are some who would repeal not only the progress of the Twentieth Century but of the Nineteenth Century as well.
Our nation has come too far to turn back now. Every issue of consequence to the functioning of our republic will, eventually, be addressed in some manner by our nation’s highest court. As the Brown case makes clear, who sits on the Supreme Court can make a real difference in the outcome of critical decisions. We don’t vote for the justices, but we do vote for the senators who confirm or reject them. In 2018, the future of the Court is on the ballot.