I’ve been having a conversation with the very sharp Silvana Naguib. Particularly since my general position on this is on the record, and I think the analysis applies to anybody Obama might have appointed, rather than turn this into the umpteenth Kagan post let’s talk about Brown v. Board instead.
As I mentioned in the post below, I think that Mark Tushnet makes an excellent case in his underrated biography of Thurgood Marshall that had the Vinson Court issued an opinion rather than holding the case over for re-hearing it would have ruled school segregation unconstitutional. But of course the influence of Warren is presumed not just to be in Brown’s holding but in the fact that he was able to generate a unanimous opinion despite the initial skepticism of several of his brethren. The ability of Warren to get Jackson to keep his threatened concurrence to himself, strong-arm Stanley Reed into joining the majority, etc. is the kind of statesmanship and ability to persuade that it’s the hot thing to look for in a Supreme Court justice. But the key question is whether any of this maneuvering mattered? My answer: Brown being a unanimous opinion probably had no impact on its short or long term acceptance, and the general tradition of requiring unanimity of in desegregation cases if anything had a net negative impact on desegregation Southern schools.
With respect to the short-term reaction to Brown, the evidence is about as clear as a counterfactual can be. It’s hard to imagine how an 8-1 or 7-2 opinion could have generated any more resistance. There was basically no school integration in the Deep South before the Civil Rights Act. Most Southern members of Congress signed a manifesto declaring the opinion lawless. Southern politics became so radicalized that it became almost impossible to be too racist when you were running office. I don’t really see how a dissent could have made things worse. And long-term, Brown was always going to be accepted because the Court got itself on the right side of history. The only plausible impact of a dissent by Reed would have been a permanent stain on Reed’s reputation. I don’t see how Brown‘s unanimity mattered.
Moreover, as Michael Klarman (who I think is much more sympathetic to this general line of reasoning) has pointed out, the “all deliberate speed” formulation that was cooked up to keep everyone on board in Brown II probably had a small net negative impact on integration in the South. As Black and Douglas always understood, there was never going to be more than token integration in the near term. But the some of the federal judges in the South who might have felt to compelled to obey a clear directive had no reason to issue strong pro-desegregation rulings when the Supreme Court’s controlling opinion didn’t actually require them to do anything. A Court that was less concerned about a futile attempt to persuade Southern moderates and that had just issued a short follow-up ruling saying that school segregation was unconstitutional now might have had some slight positive impact on integrating Southern schools, although any opinion it issued would have been widely resisted.
A final argument in favor of the impact of Warren’s persuasive abilities might be that the tradition of unanimity in desegregation opinions increased support for vigilance on the part of the federal courts. But it’s hard to see how this is true. The the case where the tradition of unanimity was abandoned involved a holding that a segregated and unequal public school system was constitutional. And of course Parents Involved has starkly indicated the extent to which Brown has come to stand for a nearly meaningless formalism that now actually prevents some school districts from trying to integrate their schools. Again, it’s hard to see how the unanimity of Brown mattered here.
In essence, Supreme Court decisions are ultimately judged by results: not by the reasoning, and not by the vote lineups. If persuasive ability matters, it’s only to the extent that it can affect swing votes (and even then cases where this is possible are likely to be very rare.)