The School Segregation Cases came up for reargument before the Supreme Court on December 8, 1953. By this time, the Kansas case was moot (it is one of the many ironies of the story that the school cases should be styled as Brown v. Board of Education of Topeka, taking their name from a controversy that had been settled by the time the opinion came down), but the cases from Virginia, South Carolina, and Delaware were still hotly at issue. The cast of lawyers was the same, and again, questions from the bench seemed to indicate a continuing division within the court.
Counsel for the Negro plaintiffs, grappling with Question 1, attempted to show that the Fourteenth Amendment was intended by its framers and adopters to have a “broad, general scope.” John W. Davis and T. Justin Moore, carrying the brunt of argument for the South, relied upon the more tangible history of what actually happened in terms of racially separate schools. Davis placed particular emphasis upon the action of the Southern States in creating separate school systems, without objection from Congress, even as they ratified the amendment. Sumner and his fellow radicals might not have wanted to challenge such Northern allies as Pennsylvania and Ohio, but “if there were any place where sponsors of the amendment would have blown the bugle for mixed schools, surely it would have been in those eight States of Reconstruction legislation.”
Frankfurter kept asking the various attorneys to explain why the Congress itself never had adopted legislation to prohibit the States from maintaining racially separate schools. Defense counsel said the Congress had no power to do so; attorneys for the Negro plaintiffs said Congress had the power, but opponents of segregation never had had the votes. Frankfurter put an embarrassing question to J. Lee Rankin, who as Assistant Attorney General had joined forces with the NAACP. “Realistically,” Frankfurter suggested, “the reason this case is here is that action couldn’t be attained from Congress. Certainly it would be much stronger from your point of view if Congress had acted, wouldn’t it?”
Rankin agreed, but insisted that the court could achieve the desired end by judicial pronouncement as well as the Congress could achieve it by legislative action. Frankfurter persisted, taking judicial notice of eighty-five years of segregation in Washington:
“Is it to be said fairly that not only did Congress not exercise the power under Section 5 with reference to the States but, in a realm in which it has exclusive authority, it enacted legislation to the contrary? Are you saying that legislation does not mean anything but what it does? It just segregates, that’s all.”
“Well, not exactly,” Rankin replied. “You have to find a conscious determination by Congress that segregation was permitted under the Fourteenth Amendment.”
“You think legislation by Congress is like the British Empire—something that is acquired in a fit of absent-mindedness?”
“I wouldn’t make that charge before this court,” said Rankin stiffly, “and I don’t want to be quoted in that manner.”
Nevertheless, Frankfurter’s questions exposed the weakness of the plaintiffs’ historical justifications. Rankin’s astonishing idea—that Congress never really had thought much about what it was doing, during all the years since 1868 in which it had provided annually for segregated schools in Washington—was echoed in feeble attempts to explain away the judicial precedents. Jackson and Reed asked Rankin how he could account for decisions of Northern courts, in such cases as Garnes, King, and Cory, holding that the Fourteenth Amendment did not reach public schools. Rankin replied weakly that “apparently there was no detailed study of the history and background of the Fourteenth Amendment.” This was too much for Jackson: “These men lived with the thing,” he said; “they didn’t have to go to books.”
The question that most troubled Jackson, however, was the key question of judicial power. He wondered aloud if it were appropriate “for the court, after all that has intervened, to exercise this power instead of leaving it to Congress.” Thurgood Marshall, for the plaintiffs, insisted that theories of a dynamic, growing Constitution abundantly justified the court in reversing Plessy and in placing its own contemporary construction on the Amendment. John W. Davis, for the defense, strongly disagreed: “At some time to every principle comes a moment of repose, when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance.”