How Anti-Catholic Prejudice Shaped Brown v. Board

by Glenna Goldis

“Various experiences of his life have been calculated to make him a bit of an Ishmaelite—to expect every hand to be raised against him, and therefore, at times to be unwarrantedly suspicious”

Felix Frankfurter on Hugo Black¹

1. Introduction

Law is an alternative to common sense. Legislators try to convince voters that their policies are the most beneficial for them or for society. They manipulate facts and voters’ consciences; that is, they appeal to common sense. Judges try to convince each other and perhaps law professors that their policies are the most legal. To do this they manipulate legal precedent and the English language. Common sense is a last resort.

Supreme Court Justice Hugo Black (1886-1971) advanced his policy preferences by manipulating legal precedent. A secularist and a paranoid man, his primary policy goal in the 1940s and 50s was thwarting the Pope in his quest for world domination. Black pursued it through some of the most important cases of the twentieth century.

Because of his forward thinking stances on labor and free speech, Black is a popular justice. Scholars describe his leadership position in the Ku Klux Klan as an act of political necessity. They begin paragraphs with “Black probably felt that…” and call him an “enigma” because a lot of his votes seem to contradict each other. For example, in Everson (1947), he argues that the Constitution requires a strict separation between church and state but concludes that the state may finance parochial school transportation. His civil rights record is mediocre at best, yet he was eager to strike down school segregation laws—a minority position on the Court in 1952. These facts cohere only when one approaches his votes and opinions under the well-grounded assumption that he was mostly interested in fighting the Catholic Church.

This essay examines Black and his times, focusing on the legal establishment’s evolving attitude toward parochial education. Part II covers anti-parochial school legislation of the early 1920s, which the Court struck down in Pierce (1925). Part III describes Black’s early career, arguing that contrary to his own excuses, politics did not require him to join the Klan. Rather, he joined because he agreed with its positions. Part IV introduces the Roosevelt Court and the race and religion politics of the era. This section also analyzes Black’s majority opinion in Everson, offering a fresh explanation for its mismatched reasoning and conclusion.

Finally, Part V recounts education debates of the 1950s, both inside and outside the courts. Secularists routinely slurred parochial schooling as “segregation.” They professed the ideal of one school system for all children—black and white, Protestant and Catholic. Like the Klansmen of the 20s, these educators, journalists, and professors hoped to Americanize Catholic children by enrolling them in public schools. Comparing parochial education to racial segregation was a standard rhetorical move, and it was not lost on Hugo Black. A textual analysis of three related school desegregation cases shows that Black manipulated them in order to set the stage for overruling Pierce.

2. “A Bill to Make Impossible the American System of Education in Oregon”

One Sunday in 1920, a hundred thousand Catholics marched through Detroit singing songs about America. They felt they needed to prove their patriotism. Michigan was about to vote on a referendum compelling all children to attend public school. Proponents were trying to quash parochial education because, they said, it discouraged patriotism.

It was a losing argument. By a nearly two to one margin, the referendum failed. This was perhaps due to the march, but probably because of the Catholics’ alliance with Lutherans, Jews, and prep-schoolers; and the possibility that compulsory public education would be very expensive.²

Oregon was not a land of hearty multicultural alliances. Fewer than eight hundred thousand people lived in the state, and ninety percent of them were Protestant.³ The Ku Klux Klan began organizing there in 1921, and only a year later Grand Dragon Fred Gifford boasted that fourteen thousand Oregonians were members.⁴ In 1922 the Klan supported a compulsory public education proposal in Oregon. Campaigning for it, the Klan “circulated a tract that pictured a grinning, torch-wielding Catholic bishop triumphantly departing from a burning public school house whose teacher rang the school bell one last time as he lay dying in the vestibule, mourned by crying children.”⁵ A bare majority of voters supported the measure, some of them believing they were supporting education generally.⁶ In 1926 the law would go into effect, ending Catholic education in Oregon.

But a federal district court enjoined it in 1924.⁷ Oregon appealed to the Supreme Court, where Chief Justice William Howard Taft described the case at oral arguments as “simply the Meyer case all over again.”⁸ In Meyer the Court had voided a Nebraska law banning modern languages other than English (that is, languages spoken by immigrants) from primary school classrooms.⁹ The Court applied the due process clause of the Fourteenth Amendment: absent due process of law Nebraska could not deprive parents of the liberty to educate their children as they wanted. The law in Meyer did not meet the standard of due process because its aims (linguistic Americanization of children for the sake of public safety¹⁰) did not outweigh the parents’ liberty interest.¹¹

In Pierce¹², the compulsory public education case, the Court took into account the same liberty interest along with the property rights of those who owned private schools.¹³ A unanimous Court struck down Oregon’s law.

On legal grounds Pierce might have been more controversial. Justice Oliver Wendell Holmes was loathe to contradict legislatures in the name of liberty. Dissenting in the infamous Lochner he explained his theory of due process: “the word ‘liberty,’ in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion.”¹⁴ Characteristically, he dissented from Meyer because it presented “a question upon which men reasonably might differ.”¹⁵ Why did he vote differently in Pierce? He never wrote on the subject. But in a companion case to Meyer he did vote to strike down a “fool law”¹⁶ that singled out German-speakers.¹⁷ He (and Justice Sutherland, another Meyer dissenter) either voted with the Court in Pierce because of stare decisis or because the law was too brazenly bigoted.

Compulsory public education was a strictly grassroots movement in the 1920s. Anyone even halfway bourgeois disdained it, from Supreme Court Justices to lawyers in Pendleton, Oregon.¹⁸ A Columbia professor referred to Oregon’s law as “A Bill to Make Impossible the American System of Education in Oregon.” Blowing off its claims to patriotism, the presidents of Yale and the University of Texas, the Journal of Education, John Dewey, and the National Education Association all went on record against compulsory public education.¹⁹ Felix Frankfurter, the future Supreme Court justice, called Pierce an “immediate service on behalf of the essential spirit of liberalism.”²⁰

Over the next twenty years he would change his mind.

3. The Politics of Hugo Black

Meanwhile, “one of the leaders” of the newly-revived Klan in Birmingham was Hugo Black. The Napoleonic young attorney’s name appeared on the stationery of Robert E. Lee Klan No. 1, which was among the most powerful klaverns in the Southeast.²¹ When he decided to run in the 1926 U.S. Senate race, his superior Grand Dragon James Esdale tried to do him a favor. “Give me a letter of resignation,” he said, “and I’ll keep it in my safe against the day when you’ll need to say you’re not a Klan member.”²² Black did.

The Klan was not monolithic in the 1920s.²³ Unlike more established political machines, it did not control voters. Its choice for Governor in the 1926 Democratic primary, Bibb Graves, won a plurality of the vote—but that amounted only to 27.6 percent. Black and Graves were popular in different areas, jointly winning less than a third of counties. Few people voted a straight Klan ticket.²⁴ Other factors outweighed the Klan endorsement.

The Klan’s support probably helped Black. But he did not need it, and he seemed to know he did not need it. In 1924 the Klan lobbied to have Chester Bandman, a Birmingham school principal, fired because he was Jewish. Black persuaded them to let it go. When the Klan resumed its campaign the next year, Black urged the Civitan Club to protest on behalf of Bandman. They did, and Bandman’s job was saved.²⁵ Another time he walked out of a Klavern meeting in protest of a resolution to whip someone.²⁶

On the other hand, “Hugo could make the best anti-Catholic speech you ever heard” and did so every weekend as part of his campaign.²⁷ He also took Klan money to defend a man who killed a Catholic priest²⁸ and published campaign ads reading, “The shuffling feet of myriads of immigrants fill my heart with dread.”²⁹ These were not acts of mere political expediency. They were the reason he joined the Klan.

*

Black avoided campaigning for his party’s Catholic presidential candidate Al Smith in 1928.³⁰ During his next term he helped filibuster an anti-lynching bill, arguing that it would “instill prejudices which, thank God! have been stifled in the hearts of most of the people of Alabama and the other States of the South.”³¹ But his unwavering economic populism redeemed him in the eyes of mainstream Democrats, especially Franklin Delano Roosevelt.

Roosevelt’s first chance to fill a seat on the Supreme Court came in 1937. Nobody knew his preference before he announced it,³² though he did tell Secretary of the Interior Harold Ickes that Black wasn’t “as able a lawyer” as the other candidates.³³ That did not matter. Roosevelt’s priority, after watching the Court negate so much of the New Deal,³⁴ was loyalty. He chose Black.

That Black had Klan “support” was known at the upper levels of government.³⁵ Whether he had technically joined was the issue. Governor Bibb Graves, who would appoint his wife to Black’s Senate seat,³⁶ lied for him.³⁷ Before confirmation, Senator William Borah was delegated by his colleagues to investigate.³⁸ He reported back that Black had several times, long before the present matter came up, denied that he was a member of the Klan.³⁹ By no account did Black explicitly lie; nobody made him. “On Capitol Hill the quality of congressional courtesy has become strained,” the Gridiron Club would comment at its December parody show. “Although senatorial courtesy has been unrestrained.”⁴⁰

Black was confirmed in a matter of days. Only later that summer did a reporter descend to Birmingham to buy the smoking gun from former Grand Dragon Esdale: Black’s formal resignation from the Klan. The media pounced. 59 percent of Americans thought he should resign. Roosevelt recommended that Black deliver a radio address to soothe their fears. He did, arguing: “some of my best and most intimate friends are Catholics and Jews.” Fifteen percent of the country changed its mind and Black took his seat on the bench.⁴¹

Progressives were divided. Some U.S. senators—most of them Catholic—the New York Times, and the N.A.A.C.P. called for Black’s resignation. The Nation, on the other hand, questioned the motives of the newspaper that broke the story. Catholic media opposed Black but Chicago’s Cardinal George Mundelein told his friend Roosevelt “that on any free exercise [of religion] or racial issue, he’d prefer to go in front of Black than anyone else.”⁴²

Roosevelt himself was not concerned. “I’ve felt from the beginning of all this Klan talk,” he wrote to a friend, “that perhaps he did belong to the Klan—but that did not necessarily mean that he might not make a very great Judge on the Supreme Court—On verra!”⁴³

4. Roosevelt’s Court

By its 1941 term seven of the justices on the Supreme Court were Roosevelt appointees. Felix Frankfurter had been a superstar professor at Harvard Law School who now enjoyed educating his colleagues.⁴⁴ Frank Murphy was the justice most likely to call a racist law “racist.”⁴⁵ The former Michigan governor was Catholic, somewhat openly gay,⁴⁶ and once between Court terms he completed basic training at Fort Knox.⁴⁷ Robert Jackson was a poor poker player⁴⁸ who wrote some of the best legal opinions in history. They were shrewd and employed graceful metaphors but they rarely netted a majority of the Court.⁴⁹

• The Court and Minorities

In 1938 Chief Justice Harlan Fiske Stone introduced the theory that laws targeting “discrete and insular minorities” required “more exacting judicial scrutiny.”⁵⁰ The proposition appeared in the now-famous Footnote 4 to Carolene Products, an otherwise unremarkable commerce clause case. Black concurred with the result and the reasoning, except for the several paragraphs which included Footnote 4.⁵¹

It later became the grounds for modern equal protection doctrine, but for years after Footnote 4’s articulation the Court did not apply it authoritatively. Stone himself invoked that part of Footnote 4 in his 1940 Gobitis dissent, arguing that public schools could not compel Jehovah’s Witnesses to salute the flag. He called for “a searching judicial inquiry into the legislative judgment in situations where prejudice against discrete and insular minorities may tend to curtail the operation of those political processes ordinarily to be relied on to protect minorities.”⁵²

The footnote was not forgotten. Other justices appealed to the part of Footnote 4 which called for closer scrutiny of laws affecting enumerated rights (such as free exercise of religion).⁵³ But the first authoritative opinion to employ Footnote 4’s logic of protecting minorities was Black’s majority opinion in Korematsu.

In Korematsu⁵⁴ Black wrote for a 6-3 Court that a military order detaining people on the basis of ancestry was constitutional. Black began by evoking (but not citing) Footnote 4:

all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.⁵⁵

He concluded that the order was in fact based in pressing public necessity, not racial antagonism.⁵⁶ Footnote 4 had been applied authoritatively for the first time—and it had been shrunk in the process. In order to defeat a discriminatory law rationalized by “public necessity,” plaintiffs, under Korematsu’s reasoning, would have to prove animus and that a “civil right” was implicated. But Korematsu wound up carrying no precedential value because it was a national embarrassment.⁵⁷

It is impossible to know for sure whether Black was concerned with creating a new doctrine. But Jackson, writing in dissent, certainly was. He argued that the military’s order violated an absolute constitutional principle: “that guilt is personal and not inheritable.”⁵⁸ By rationalizing the order, the Court created a caveat that would lie “about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”⁵⁹ Murphy dissented as well, illustrating that the order was in fact rooted in racism and not any reasonable state interest.⁶⁰ Frankfurter concurred with Black. He justified his hawkish reading of the Constitution in part by reminding the reader that it was written by “hard-headed Framers, of whom a majority had had actual participation in war.”⁶¹ The Constitution implicitly bowed to the military because its authors had been in the military.

*

Black and Frankfurter had worked on the National Labor Relations Act of 1935. On the bench they broke new ground in free speech⁶² and criminal defendants’ rights.⁶³ They were the foremost progressives of their generation. How could they have endorsed the racist policy in Korematsu? Fundamentally the case presented a choice between trusting the military’s judgment and trusting a cultural minority. The intellectual climate in which Black and Frankfurter operated, progressive as it was on other topics, favored the military.

Workers were Roosevelt’s primary constituency; economic reform and foreign policy swamped the progressive agenda; anti-discrimination laws were decades off. At a dinner party in 1940, Jackson, Harold Ickes, and Third Circuit Judge Francis Biddle (all New Dealers) agreed that Hitler was “satisfying the aspirations of the youth of Germany.”⁶⁴ Once Nazism was discovered to have countervailing negatives, social scientists foraged for an antidote to it. “Anglo-Saxon Protestant traditions,” according to a prominent Harvard sociologist, were America’s best defense against fascism.⁶⁵ Multiculturalism was not crucial to progressives in the 30s and 40s.

The relationship of the Catholic Church to the progressive movement was complicated. The Church was radically progressive in some areas and medieval in others. It had favored racial equality since well before the Civil War and made a concerted effort to integrate its schools in the 1940s. But the Church also opposed birth control and attacked the legacy of “Progressive darling” Justice Oliver Wendell Holmes because of his lack of religious faith.⁶⁶ The Democratic party still relied on Catholics for votes; Roosevelt maintained close ties to the Church until his death in 1945.

But many progressives bridled at the Church’s growing power, and anti-Catholicism was no longer the low-brow affair it had been in the 20s. Frankfurter, for example, had hailed the pro-Catholic outcome of Pierce in 1925 but cautioned against the reasoning behind it. Due process, he pointed out, was often the justification for striking down progressive state legislation.⁶⁷ Twenty years later the Court no longer used due process to thwart labor. Now Frankfurter worried about Pierce because of its pro-Catholic outcome. In 1944 he predicted that the Court would come “to rue the implications of Pierce v. Society of Sisters.”⁶⁸

One popular progressive of this era was Paul Blanshard. In the 20s Blanshard was a minister and a socialist; in the 30s he worked for Fiorello La Guardia, the mayor of New York, and then the State Department; in the 40s he was the Nation’s correspondent to the Vatican; by his death he was an atheist.⁶⁹ At the Nation he began writing the opinions of the Catholic Church which would make him famous.

In 1948 these writings were collected in what would become a best-seller, American Freedom and Catholic Power. The book was a set of reasonable policy critiques, pickled in hysteria, served with nuanced insults, and finally lit on fire. For example, Church doctrine forbade birth control. After explaining the positive aspects of birth control, Blanshard wrote “[i]ntelligent Catholics know these things.”⁷⁰ “The hierarchy” of the Catholic Church, not possessing any public offices itself, threatened American freedom via mediocre Catholics. “Can we afford to ignore [the Church’s] relations with fascism even temporarily?”⁷¹ The answer was no. Blanshard concluded,

“there is no alternative for champions of traditional American democracy except to build a resistance movement designed to prevent the hierarchy from imposing its social policies upon our schools, hospitals, government and family organization.”⁷²

Blanshard had allies on the Supreme Court. When some public school libraries banned the Nation because of Blanshard’s articles, Felix Frankfurter gave confidential legal advice to people who wanted to reinstate it.⁷³ In the words of Hugo Black’s son, Black “used to read all of Paul Blanshard’s books exposing the power abuse in the Catholic Church.”⁷⁴

Black told his wife that “when one religion gains predominance, they immediately try to suppress others.”⁷⁵ According to Blanshard, the “American branch of the Roman faith is now almost three times as large as the largest single Protestant denomination in the United States”⁷⁶.

• Everson

Murphy: You know what this case is about—why don’t they tell what it is about? All this legislation is legislation to hurt Catholic schools.

Frankfurter: Well, why don’t you enlighten everybody, since you are peculiarly qualified to state that that is the issue, if that is the issue.⁷⁷

(during oral arguments for Everson v. Board of Education, 1947)

In 1947 the establishment clause of the First Amendment was a cipher. What did it mean for a law to respect an establishment of religion? The Supreme Court had barely touched the question.

Pierce was decided on due process grounds, though Justice Anthony Kennedy has written that it would today be decided under the First Amendment’s religion clauses.⁷⁸ In 1943 Jehovah Witnesses challenged a law that required all public school students to salute the flag because doing so violated their religion. They argued that the law violated the free exercise clause. But the Court framed the issue as one of speech, not religion. One year later in Prince v. Massachusetts the Court addressed a free exercise argument. The issue was the constitutionality of a Massachusetts child labor law which effectively curtailed Jehovah Witness children’s ability to proselytize. The Court imported the “clear and present danger” test from free speech doctrine, then refocused on the question of whether children had the same rights as adults (they did not).⁷⁹ While the free exercise clause accumulated these etchings, the establishment clause remained pristine. The complete text was “Congress shall make no law respecting an establishment of religion” and the Supreme Court had never interpreted it.

In 1947 Everson presented the question of whether a town could reimburse parents for their childrens’ bus fares to and from nonprofit private schools, that is, Catholic ones. Black, writing for a 5-4 majority, found that the policy did not violate the establishment clause because it did not breach the wall separating church and state. The opinion is surprising in two ways. First, its reasoning does not cohere with Black’s jurisprudence; second, its reasoning does not cohere with its conclusion.

Black was a strict constructionist.⁸⁰ “I took an obligation to support and defend the Constitution as I understand it,” he would say regarding his absolutist position toward the free speech portion of the First Amendment. “And being a rather backward country fellow, I understand it to mean what the words say.”⁸¹ He disdained judges who projected their own policy preferences onto the sacred text, particularly the Bill of Rights. In 1965 he would catch Justice William O. Douglas in the act. Douglas wrote for the Court in Griswold that the Constitution protected several types of “privacy” and therefore protected marital privacy (and the choice to use birth control) as well. Dissenting, Black wrote:

“One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning.”⁸²

In fact, Black himself did this in Everson. He dilated the establishment clause by substituting its words with a metaphor about separation.

“Whether this New Jersey law is one respecting an ‘establishment of religion’ requires an understanding of the meaning of that language,”⁸³ Black began his analysis. Next came a description of “freedom-loving colonials” who did not want their taxes to support persecution or ministers’ salaries.⁸⁴ He concluded eight pages later: “In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’”⁸⁵ Dropping the qualifiers, he finally asserted at the end of the opinion that the “First Amendment has erected a wall between church and state. That wall must be kept high and impregnable.”⁸⁶

Black’s history was dubious. At the time, Princeton Professor of Jurisprudence Edward S. Corwin objected. The Framers were concerned about the state preferring one religion over all others, and the establishment clause spoke only to this.⁸⁷ Harvard Divinity professor George Hunston Williams opposed public aid to parochial schools but nevertheless disagreed with Black. “The Catholics are right,” he said. Some members of the First Congress fought for a more restrictive First Amendment but lost, which “supports the Catholic in his interpretation of the original understanding of that Amendment.”⁸⁸ The Framers did not intend separation; Thomas Jefferson did.

The state might aid religion without preferring one denomination. “Separation” and walls did not necessarily follow from the text of the First Amendment, either logically or historically. But then, why did Black choose the wall metaphor?

More recently, Philip Hamburger has argued that anti-Catholic animus propelled Jefferson’s language through the ages and into Everson.⁸⁹ Immigration swelled in the1830s and 40s. Like a cat, the old order defended its territory by hissing and groaning. Most of the immigrants were Catholic and the natives, Protestant, so the conflict was soon verbalized into religious terms. Protestants portrayed Catholics as freedom-haters, wishing to replace the Constitution with the Pope. The two groups did not represent two different religions but—according to Protestant nativists—two different theories of the state: one ruled by law, the other by faith.⁹⁰

Yet many schools receiving public funding were religious. The organization which received most of the funds in New York had explicitly religious goals and required children to read the King James Bible. Public schools were, in effect, Protestant. New York Catholics began soliciting public funds for their own schools as early as 1925. They were charged with trying to unite church and state. Simply requiring the Bible to be read, on the other hand, did not. The American Republicans in 1945 supported “a barrier high and eternal as the Andes, which shall forever separate the Church from the State.” And they argued that the Bible, as long as it was “without sectarian note or comment” did not breach it.⁹¹

“The separation of church and state” therefore gained popularity over the next century because it was a no-lose proposition for anti-Catholic Protestants. The Klan, among other less famous nativist groups, embraced separation.⁹² New members swore to uphold, among other patriotic values, “white supremacy”and “separation of church and state.” As Kladd of the Birmingham Klavern, this was the oath that Hugo Black administered.⁹³ Paul Blanshard advocated separation, too.

To summarize, “the wall” between church and state entered public discourse as a weapon against Catholics. As the animus persisted, so did the phrase. Black was eager to write it into law because he wanted to cut off funding to Catholic schools. Everson, accordingly, reads as a passionate argument that government should never aid religion. Why, then, does it ultimately allow the state to pay for Catholic school busing?

The decision was 5-4. If Black had voted with the other side, he would have achieved the outcome he wanted and employed the same separation logic. But there would have been dissents which employed a different logic. Murphy in particular was on the pro-funding side. He believed that the litigation was basically anti-Catholic and, at least in cases involving Asian-Americans, his opinions called racist laws racist. It is likely that had the Catholics lost Everson, Murphy would have called “bigot” and, more importantly, interpreted the establishment clause in a way having nothing to do with walls.

But Black preempted that. The justices who disagreed with his outcome agreed with his reasoning. Two of them complemented it with their own pro-separation arguments. Sometimes they derived their conclusions from Black’s own arguments by techniques such as “converse necessary implication.”⁹⁴ In his dissent, Jackson marveled at the disconnect between Black’s reasoning and his vote. He wrote: “The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron’s reports, ‘whispering ‘I will ne’er consent,’—consented.”⁹⁵ Ever the poker loser, Jackson’s literary knowledge outpaced his intuition. Black was on top.

The next year another case involving religion and schools reached the Court. McCollum presented the question of “released time.”⁹⁶ In these programs public schools would turn the floor over to religious instructors for thirty minutes each week; students had the option of choosing a study hall instead. Black wrote for an 8-1 majority that the program was unconstitutional:

“The majority in the Everson case, and the minority as shown by quotations from the dissenting views in our notes 6 and 7, agreed that the First Amendment's language, properly interpreted, had erected a wall of separation between Church and State.”⁹⁷

By coopting the would-be anti-separation team in Everson, Black had united the Court. The wall of separation was now uncontested law. Everson “was at first hailed as a great victory for the Catholic Church,” wrote Paul Blanshard, “but an examination of the text of the decision proved that it was a boomerang.”⁹⁸

*

Black did not seek to change church-state law only by rephrasing the First Amendment. Everson also contained two different blueprints for anti-Catholic litigants.

First Black pointed out another angle of attack against the busing law. The New Jersey township did not reimburse children attending for-profit schools (that is, prep schools). In three nearly redundant sentences Black highlighted it, elaborating in two footnotes. “Appellant does not challenge the New Jersey statute or the resolution on the ground that either violates the equal protection clause of the Fourteenth Amendment,” the first footnote begins.⁹⁹ In the next footnote: “The opinion of the [New Jersey] Court of Errors and Appeals in this very case suggests that state law now authorizes transportation of all pupils.”¹⁰⁰ He was practically telling his sacrificial lambs to buck up.

Second, Black narrowed Pierce. Citing to it he wrote:

“This Court has said that parents may, in the discharge of their duty under state compulsory education laws, send their children to a religious, rather than a public, school if the school meets the secular educational requirements which the state has power to impose.”¹⁰¹ (Emphasis added.)

In fact, Pierce was much more libertarian in spirit. It ruled that the state lacked the power “to standardize its children by forcing them to accept instruction from public teachers only.”¹⁰² Black was also off-point; the right to attend Catholic schools was not at issue in Everson. No one even claimed that Catholic schools would close down if the state did not fund their transportation. Black mentioned Pierce only to distort it and to signal Catholic schools’ vulnerability to anyone who might litigate.

Everson’s use of Pierce recalls Korematsu’s invocation of Footnote 4. That case did not require him to bring up heightened scrutiny; the footnote was hardly binding precedent in 1944. But he applied it anyway, and in so doing he took charge of it. Black was a shrewd lawyer. He knew that legal precedents were more important than laws. For Black, Korematsu was not about interned Japanese-Americans (especially since they were scheduled for release immediately after his opinion issued); Everson was not about bus fares; and Brown was not about civil rights.

5. The Most Dangerous Kind of Segregation

• The Constitution in 1952

Brown v. Board of Education was a long shot for the N.A.A.C.P. when they appealed to the Supreme Court in 1952. For the Court to ban segregation it would have to void a popular, entrenched state law and bend legal precedent. The justices did not seem up to it.

Legal precedent was mostly against the N.A.A.C.P. Plessy v. Ferguson¹⁰³ reigned, meaning that as long as black and white students attended schools of equal quality, segregating them was constitutional. In Brown, on the other hand, the schools were equal. Brown was a direct challenge to the wisdom of “separate but equal.” To reverse it would seem to reverse not just public school segregation but all of Jim Crow—a daunting proposition in 1952.

“As a political decision I can go along with [desegregation],” Jackson said at conference. But, “I don’t know how to justify the abolition of segregation as a judicial act.”¹⁰⁴ Frankfurter was also ambivalent. “However passionately any of us may hold egalitarian views […] he travels outside his judicial authority if for this reason alone he declares unconstitutional the policy of segregation.”¹⁰⁵ Any justice who struck down segregation would have both political conviction and a flexible jurisprudence.

Black did not appear to fit this profile. In the Senate he had filibustered an anti-lynching bill. In 1940 he wrote a landmark anti-racist opinion for a unanimous court, Chambers v. Florida. But he had originally voted not to hear the case, and then was assigned it against his will.¹⁰⁶ In 1952 the Court upheld the conviction of the president of the White Circle League for distributing racist literature, a violation of Illinois law.¹⁰⁷ The literature called for the mayor of Chicago “to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro. . . .”¹⁰⁸ Black dissented, arguing that the Illinois law violated the First Amendment.¹⁰⁹ It is a respectable argument and ahead of its time, considering the fate of campus speech codes. But it illustrates that, contrary to the arguments of some historians, Black did not go out of his way to prove he was not a racist.¹¹⁰

Black never warmed to the civil rights movement, usually coming “down on the side of property and the preservation of public order.”¹¹¹ He dissented in a case reversing convictions of sit-in protesters, arguing to limit the scope of the Civil Rights Act.¹¹² “Unfortunately,” Black would say in 1968, “there are some who think that Negroes should have special privileges under the law.”¹¹³

Black did not normally compromise values such as safety for the sake of civil rights. Back in 1952 Black believed that desegregating public schools in the South would result in “some violence.”¹¹⁴ Neither legal precedent nor the text of the Fourteenth Amendment required desegregation. A majority of the Court in 1952 believed segregation was constitutional.¹¹⁵ Black was the least likely of their colleagues to disagree. But right after Brown’s first oral argument, having prepared “with no great intensity,” he intimated how he would rule. “[T]he purpose of the law is to discriminate on account of color,” he would say a few nights later. The Reconstruction “Amendments were designed to stop it… I have to vote that way.”¹¹⁶ Why was the law and order strict constructionist suddenly so eager to shake up the South?

• The Country in 1952

In the 50s people used to argue about segregation and Catholic schools at the same time.

Segregationists argued that if Catholic parents could send their children to Catholic schools, white parents should be able to send their children to white schools. Virginia’s star witness in the 1952 segregation case Davis v. County School Board asserted that “the principle of separation in education… is long and well established in American life” and used parochial schools as an example.¹¹⁷

In circles where everyone disdained segregation, anti-Catholics compared parochial schooling to it. “You cannot practice democratic living in segregated schools,” said one Columbia professor, referring to Catholic schools.¹¹⁸ That the Catholic Church opposed racial segregation only sweetened the analogy. Blanshard lamented that integrationist Catholics did not “draw the obvious parallel that segregation of children in separate schools by religion might also injure them and the community.”¹¹⁹

The transcript of a 1951 forum at Harvard Law School shows how public intellectuals framed the issue of Catholic schools, and how they threw race around.¹²⁰ Three professors and a Methodist bishop were debating, ostensibly, the question of public aid to parochial schools. Whether the state should fund them was in fact only part of the debate; much of it seemed to question whether the state should allow them.

“The American way is better,” said Methodist Bishop G. Bromley Oxnam, in comparing American public schools to Catholic schools in totalitarian Spain.¹²¹ Of the four speakers Oxnam received the most ovations, probably because he was so patriotic. He continually condemned the Catholic aspects of Franco’s Spain¹²² and (to applause) accused American Catholics of accusing American teachers of being communists.¹²³ Public money should be kept out of the hands of “the hierarchy” because even without it they were “driving a divisive factor into the national life and contributing to the destruction of national unity.”¹²⁴ That factor might be termed segregation. “I am proud of the fact that my Protestant sons and daughter had the privilege of sitting beside their Roman Catholic and Jewish friends—Jew by gentile, black by white, native born by foreign born, and thus learned how to live together.”¹²⁵ Applause followed.

(The pro-funding side was not, so to speak, saintly either. Professor Vincent A. McCrossen argued that “the beginnings of modern totalitarianism go back to the founder of Protestantism, to Martin Luther.” No one applauded.¹²⁶)

Desegregation for these people was like the word “change” in 2008; both sides picked up the banner all the time. A Boston College student later asked Oxnam, “are not Catholics justified in their schools when the Protestant-dominated anti-Negro, anti-Semitic, anti-Catholic Ku Klux Klan moves against public school freedom in the South?” Instead of conceding that segregated public schools were bad, Oxnam argued that the Klan had “nothing to do with Christianity at all.”¹²⁷ Black children were pawns in the Catholic-Protestant debates.

The next year anti-Catholics removed their gloves but donned a fig leaf. Prominent educators openly attacked “nonpublic schools”—not their source of funding, but their existence—at a convention of public school superintendents in Boston. They were following the lead of their own president and Harvard’s president, James B. Conant. One speaker declared that there were two types of segregation: racial segregation in the South and the kind based on “fundamental beliefs.” The latter was more dangerous to democracy.¹²⁸

Both racial and religious segregation were slammed as unpatriotic, particularly in elite circles. The ideal was one public school system for all. Hugo Black wanted to write this into law. Just as Everson was a set-up for McCollum, Brown would lay the groundwork for reversing Pierce.

• Making Brown

Brown was first argued in December of 1952 as a series of several state segregation cases and one from D.C., governed by federal law. Then the justices put five further questions to the parties and scheduled them for reargument in December of 1953. The decision came down in June of 1954. Brown struck down segregation in the states and Bolling v. Sharpe struck down segregation in D.C.

Two factors obscure study of Brown and Bolling. The first is that the justices crafted them under hypersecrecy. Only Frankfurter, Jackson, Stanley Reed, and Tom Clark discussed the cases with their clerks; then only Earl Warren’s clerks wrote the drafts.¹²⁹ Black’s clerks were living with him during the 1953 term, and still he did not discuss desegregation with them. According to Charles Reich,

“Usually we could look at anything in the Judge’s files if it at all related to what we were working on. Nothing was sacrosanct. But it was different in Brown. He said, ‘I don’t think you boys have to know about that,’ and specifically told us not to look at that file. He locked it up and kept the key.”¹³⁰

Black is especially hard to read because in 1971, shortly before his death, he asked his son to burn all of his conference notes and private Court papers. Hugo Jr. did.¹³¹

The other reason Brown and Bolling deliberations are murky to us is that they are compromises, jurisprudential mongrels. Unanimity on the touchy issue was important to Earl Warren, the new chief justice, and he impressed that value on everyone. He did not want any concurrences. So all of the justices got to adjust language here and there, but most of them sacrificed their constitutional visions at least a bit. Reed, for example, preferred that Brown be decided on due process grounds instead of equal protection; Jackson wanted Brown to acknowledge its own shaky legal foundations.

The biggest known change from Warren’s original drafts was in Bolling. Because the equal protection clause did not apply to the federal government, Bolling was decided under the due process clause of the Fifth Amendment. Meyer and Pierce were almost directly on point. Referring to them, Warren originally argued:

“Just as a government may not impose arbitrary restrictions on the parent’s right to educate his child, the government must not impose arbitrary restraints on access to the education which the government itself provides.”¹³²

But Black vetoed this sentence and all other references to Meyer and Pierce.¹³³

This move has been attributed to Black’s well-documented aversion to substantive due process, and particularly its role in the pre-1937 “Lochner era.” But Black did not object to Warren’s use of another Lochner era due process case, Buchanan v. Warley. The difference was that Buchanan had nothing to do with education.

To rely on Pierce would be to reaffirm it. In Black’s eyes, that would make the desegregation cases self-defeating.

As a result, Bolling’s liberty analysis reads:

“Although the Court has not assumed to define ‘liberty’ with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective.”¹³⁴

A due process analysis is only called for when a liberty or property interest is at stake. In Bolling that interest is never named, even though it is obviously education—and education had already been anointed a liberty interest.

Black, like many others in 1954, wanted to grant children the right to attend a unified public school—and thereby require parents to send them to one. Meyer and Pierce, the education cases on point, contradicted this theory of education. So Black used his veto power to keep the most relevant legal precedents out of Bolling.

• Implementing Brown

Black wanted desegregation on the books but he did not expect it to be enforced; nor did he want to encourage enforcement. “Vagueness is not going to hurt,” he said during one Brown conference. The Court postponed deciding a remedy until the next term. Then Black argued that the remedy should apply to just “these seven children,” the named plaintiffs.¹³⁵ This would not work, of course, because Brown was a class action suit.

The decision about Brown’s implementation came in the spring of 1955 and was titled Brown II. Its terminology was different. Brown I had spoken in terms of segregation, using some form of the word twenty times. Brown II only used the word once, in a footnote quoting Brown I. Instead it addressed “discrimination.” Some form of that word occurred thirteen times, where in Brown I it had only occurred once, describing the early history of the Fourteenth Amendment. Brown I’s crucial word was replaced.

After the Court announced Brown II, Black’s clerk Daniel J. Meador asked him why the opinion used the word discrimination when segregation was “what Brown is really all about.” Black smiled slightly and said, “Well, I think they’ll understand what we mean.”¹³⁶

Discriminate is a narrower term than segregate. Banning discrimination allows for de facto segregation and consensual segregation, i.e. parochial schools. The question is not why the Court switched to discrimination, but why it ever used the broad language of segregation.

Brown II had temporary, practical value; Brown I went down in history. Brown I, in other words, was the legal precedent which would be called up in future cases. Its language, that of segregation, matched the language used in fighting Catholic schools. Black was the Court’s senior justice and he exercised his influence at least enough to gut Bolling. It was probably he who maximized the scope of Brown I, the case that might one day apply to “nonpublic schools.” And it was also probably he who minimized Brown II, the decision which (racially) desegregated the South.

6. Conclusion

Many scholars laud Hugo Black because of his stands for labor and free speech and against school prayer. They characterize his Korematsu opinion and anti-Catholic episodes as driven by not-unjustified fear. Over seventy years ago Roosevelt’s administration spun Black’s klan membership as mandatory pandering. Historians ever since have been falling over each other to flesh that theory out. Meanwhile, Black’s strict constructionism is trumpeted even as two of his most famous votes, in Everson and in Brown, are obviously political. Rather than admit that their interpretation of Black is a mess, scholars have termed him an “enigma.”

To unify the information one needs only to see that anti-Catholicism was a driving force in Black’s career. It trumped racism, multiculturalism (which barely existed in the 1940s), textualism (which did not exist until it was posthumously ascribed to Black because of his free speech absolutism), and most of all judicial transparency. In the 40s and 50s Black manipulated votes and text in order to advance the reborn anti-Catholic compulsory public education movement.

But the movement died anyway. Nobody took Black’s cue and used Brown to litigate against parochial education. Consequently, a judge in 2008 might hate parochial education but never think to compare it to Jim Crow. In the end, Black colored a lot of constitutional law but he barely marked American history.

Church-state doctrine reflects Black’s vision, but actual church-state relations do not. In 2008 the church-state debate is as lively as ever, chiming with Jeffersonians, fundamentalists, Foucauldians, and bigots of all persuasions. The term separation is thrown around more than establishment, but the definition of separation is up for grabs. Everson did slow indirect aid to parochial schools. But judging by the public debates of the era, that was going to happen one way or another. Since then the Court has backslided from its “no state aid” position (over Black’s furious dissents until his death in 1971). Public money finds its way to churches and we debate whether this should be the case. Everson is just one argument used in one forum.

Black’s part in the desegregation cases had little effect on constitutional law and none on history. Despite his effort, education is not a “fundamental right” under modern substantive due process analysis. In San Antonio the Court ruled that precedent showed education was merely “important.” A clearer declaration about education in Bolling would not have been harder to circumvent than the other cases that San Antonio acknowledged, such as Pierce. In 2007 the Roberts Court considered several school districts’ race-conscious school assignment criteria. The Court struck them down because they classified students by race and integration did not meet the “compelling state interest” test. Given the number of principles to which the plurality turned a blind eye, it is safe to assume that it stood ready to gloss over anything. The precise wording of Brown did not matter.

Finally, Korematsu did not affect equal protection doctrine because its conclusion was so wrong. Unlike Everson, Brown, and Bolling, no Supreme Court justice will ever cite to Korematsu. Morality/public opinion trumps precedent.

Supreme Court justices try to write personal agendas into law. The luckiest are successful. But then the laws are implemented or ignored by government officials with other agendas. Eventually they are interpreted generations later by people who do not even understand the authors’ agendas. Nontransparent lawmaking seems sinister, but it is actually the most impotent kind. If a judge’s intent is so dressed up that nobody recognizes it, then it can’t be enforced.

Justices today have turned snubbing international law, flaying the Fourteenth Amendment, and sheltering big business into an art. They might learn from Hugo Black not to be too crafty.