The Supreme Court Building in Washington D.C.
Amid the current national debate over immigration
policies, racial discrimination, LGBTQ rights, and executive power, the
anniversary of an important legal and political dispute that has
directly shaped that debate will pass quietly, its legacy all but
forgotten.
In September 1958, sixty years ago next week, the
United States Supreme Court finally earned its hard-fought reputation as
a co-equal branch of the federal government, in a courtroom drama
filled with urgency and uncertainty.
For perhaps the first time, the high court put muscle
behind its mandate, asserting in unequivocal terms that its
interpretation of the Constitution was the "supreme law of the land,"
and ordering immediate state compliance.
Thurgood Marshall, the prominent lawyer for the NAACP
Legal Defense Fund, had sized up his audience: nine older white men who
were none too thrilled about revisiting their landmark precedent that
was proving nearly impossible to fully enforce.
The crafty civil rights veteran turned the tables on
the justices in a civil rights case debated and decided within hours,
which spoke as much about public confidence in government as it did
about a hot-button social issue.
Marshall was essentially arguing that officials in
Little Rock, Ark. had to follow a federal court order to desegregate its
schools. The 50-year-old's focus was not black students seeking
equality, but about society's larger civic responsibilities.
"Education is not the teaching of three R's. Education
is teaching of the overall citizenship, to learn, to live together with
fellow citizens and above all, to learn to obey the law," he says in
rarely heard audio of the two-day argument.
Thurgood Marshall was nominated and confirmed to the Supreme Court in 1967.
(AP1967)
"I'm not worried about the Negro children at this
stage. I don't believe they're in this case as such," Marsall went on.
"I worry about the white children in Little Rock who are told as young
people that the way to get your rights is to violate the law and defy
the lawful authorities. I'm worried about their future. I don't worry
about the Negro kids' future. They've been struggling with democracy
long enough. They know about it."
The audio was secretly recorded by the court, and only made available to the public decades later. (Marshall's words can be
heard here, at the 27:50 mark of Part 2.)
Just a day after the argument, the high court
unanimously ordered Arkansas' governor to continue admitting
African-American students.
"No state legislator or executive or judicial officer
can war against the Constitution without violating his undertaking to
support it," wrote a unanimous bench in Cooper v. Aaron. Compliance with
the principles of civil rights, as articulated by the federal courts,
is "indispensable for the protection of the freedoms guaranteed by our
fundamental charter for all of us. Our constitutional ideal of equal
justice under law is thus made a living truth."
LITTLE ROCK'S LEGACY
The Court's ruling in Cooper v. Aaron came four years
after the landmark Brown v. Board of Education decision, which found
"separate but equal" public facilities unconstitutional. It was
groundbreaking, but many civil rights activists believed little progress
was made in its initial aftermath, a sentiment echoed today.
"What happened in 1954?" asked current Justice Stephen
Breyer in a speech this past January. "Nothing happened. What happened
in 1955? Nothing. What happened in 1956? Double nothing."
The Brown ruling simply declared school segregation
policies violated the 14th Amendment, implicitly leaving it to the
states and lower courts to sort out the consequences. A follow-up
decision a year later mandated school integration "with all deliberate
speed," with federal court oversight to ensure compliance, but no
timetable.
Some states needed no federal encouragement, but
others, particularly in the South, were deliberately slow to change, and
many courts were reluctant at first to force compliance.
Little Rock's school board initially created a
court-backed integration plan, but the state legislature and Gov. Orval
Faubus passed new laws banning such efforts. Local sovereignty was at
stake, they insisted.
The situation in Arkansas' capital gained national
attention in September 1957, when the state's national guard prevented a
group of black students from attending the largest high school in the
city (the "Little Rock Nine").
Elizabeth Eckford, one of the 'Little Rock Nine' is pursued by white students.
(Getty Images)
The crisis escalated after federal courts again ordered
Little Rock Central High School's doors to be open to all, and
President Dwight Eisenhower sent in Army troops. Despite threats of
violence, the black students entered and began taking classes. They were
subjected to continuing taunts, threats, and physical violence.
Months later, the school board asked for a delay in
implementing the ongoing integration plan, citing "chaos, bedlam, and
turmoil." A federal district judge agreed to do so, but a federal
appeals court reversed that decision.
It was then that the U.S. Supreme Court intervened in a
pair of special argument sessions, ordering immediate integration, and
reaffirming existing precedent that the rights of minority students
could not be sacrificed in lieu of state concerns about "order and
peace." But the united justices went further, asserting clear authority
to bind states to their decisions, which could not be circumvented with
competing legislation.
Faubus was furious, closing the capital city's public schools, and ordering a special election within days to boost his actions.
"The Supreme Court shut its eyes to all the facts, and
in essence said— integration at any price," he declared, "even if it
means the destruction of our school system, our educational processes,
and the risk of disorder and violence that could result in the loss of
life—perhaps yours."
The open defiance continued, token desegregation
continued slowly in many parts of the South and Southwest, and the
impact is still being felt in many communities.
The citizens of Little Rock called 1958 the "lost year"
in Little Rock, but the Supreme Court's newfound recognition of its own
inherent power in its decisions would carry on. Some scholars have
since called that bench the "living voice of the Constitution."
From the 1960s onward, a host of state laws on
abortion, criminal procedure, and civil rights were debated and
overturned by the Supreme Court in a series of cases known as single
words: Gideon, Miranda, Loving, Roe, and Obergefell.
POLITICAL BACKLASH
But the Cooper vs. Aaron decision also created a legal and political backlash, especially among some conservatives.
Edwin Meese, a former Attorney General under President
Ronald Reagan, has been among those who have repeatedly criticized the
Supreme Court for what they consider a self-affirming power grab.
"Constitutional interpretation is not the business of
the court only, but also, and properly, the business of all branches of
government," Meese has written.
The former AG has pinpointed the Cooper decision as the start of an era of an "imperial judiciary."
''Obviously the decision was binding on the parties in
the case; but the implication that everyone would have to accept its
judgments uncritically, that it was a decision from which there could be
no appeal, was astonishing.''
Meese also believes that by saying its interpretation
of the Constitution was "the supreme law of the land," that view ''was,
and is, at war with the Constitution, at war with the basic principles
of democratic government, and at war with the very meaning of the rule
of law.''
Supporters of a more limited role for the nine
unelected justices have cited Abraham Lincoln's remarks in his 1861
inaugural address.
"If the policy of the government, upon vital questions,
affecting the whole people, is to be irrevocably fixed by decisions of
the Supreme Court," he said, "the people will have ceased to be their
own rulers, having, to that extent, practically resigned their
government, into the hands of that eminent tribunal."
Lincoln had his own problems with the Supreme Court,
ignoring its ruling the President had no authority to suspend habeas
corpus, even in wartime. The justices did not bother to hold Lincoln
accountable for his public defiance.
And yet, a Supreme Court confident of its mandate is a
concept the public seems now to accept to a large extent. The justices
themselves lack any formal enforcement tool except their own legitimacy
contained in the power of words and ideas.
Breyer cites the 2000 Bush v. Gore decision that essentially handed the presidency to the Republican.
"What was remarkable about it is that even though vast
numbers of Americans thought it was wrong," and even though Breyer
himself thought it wrongly decided, "people followed it. In other
places, there would have been guns and bullets. The fact that no blood
was shed after Bush v. Gore, is what makes America great."
