Abstract

Excerpted From: Jill M. Fraley, What Roosevelt Did to Brown v. Board of Education, or Race and Court Packing, 102 Nebraska Law Review 575 (2024) (249 Footnotes) (Full Document)

Currently, more than one-third of U.S. students (K-12) attend a racially segregated school. Recent research shows that racial segregation has increased by 35% over the past three decades. In the 1980s, the Reagan Administration stopped progress on integration by fighting court-ordered integration plans. But the problem dates back much further. Many believe that the U.S. Supreme Court's decisions in 1954 in Brown v. Board of Education I, which held school segregation unconstitutional, and Brown v. Board of Education II, which mandated that all American schools desegregate with “all deliberate speed” settled the issue of segregation. In fact, many scholars have regarded Brown as a defining moment of glory for the Court. In reality, integration barely appeared until more than fifteen years later, and only after the Supreme Court had issued no less than six decisions between 1954 and 1969 demanding that the states proceed with desegregation. Desegregation proceeded neither speedily nor evenly and thoroughly. As a result, scholars have long debated whether the Brown decision was effectively a failure. The reality is that school desegregation not only persists but also is the subject of ongoing litigation in many jurisdictions in recent years. One reason is that private schools, generally white-only and often referred to as segregation academies, proliferated in the years after Brown. This, however, is not a full explanation of the problem because segregation continued in public schools and continues today.

This Article proposes an important and previously undocumented part of the explanation: when the Supreme Court decided Brown v. Board of Education, the recent experience of Roosevelt's court packing attempt remained in living memory and strongly influenced reactions to the Court's decree that American schools must integrate. The public and southern lawmakers capitalized on Roosevelt's attacks on the Court, rearticulating those claims to cast doubt on Brown's legitimacy. Other opponents of integration argued that Roosevelt had succeeded in packing the Court (if by less direct means), and that the Brown Court did not legitimately have the authority to determine constitutional law. Both lines of argument proliferated through the media, reducing public acceptance of the Brown decision and encouraging the many strategies of evading integration.

The impacts of Roosevelt's court packing attempt, however, went beyond questions about the legitimacy of the Court. Roosevelt's legacy also included authoring a playbook of strategies for manipulating both state and federal courts. The public and southern lawmakers attacked Brown by employing these strategies, often directly claiming validity for their actions by way of Roosevelt's endorsement.

In the decades when Roosevelt's court packing attempt persisted in lived memory, Brown was never going to fully succeed in the South, where it did not have majority support of the population. The Court simply did not have the power to either demand public acquiescence or sway public opinion.

The story of court packing and Brown matters not only as a piece of the complicated puzzle of why integration remains a challenge but also because the idea of court packing is in the air again. Court packing is an old concept that enjoys seasons of popularity. Currently both Democrats and Republicans are working to pack courts at the state and federal level. This Article examines the public perceptions of court packing prior to Franklin D. Roosevelt's famous attempt, beginning with the public understanding of jury packing--fixing a jury for a particular outcome-- as the basis for the term “court packing.” The public knowledge of jury packing dictated how the public would respond to Roosevelt's attempt to pack the Supreme Court. From 1937 to the 1950s, public discourse regularly recalled Roosevelt's court packing attempt, keeping the experience vivid in the public memory. Court packing became a significant part of the public political lexicon, operationalized by both the public and lawmakers when the Supreme Court overruled separate but equal precedents in Brown v. Board of Education.

The Roosevelt-era experience with court packing informed the public response to Brown in multiple ways. Public discussions post-Brown echoed the Roosevelt era, not in a generalized way, but in specific patterns traceable directly back to Roosevelt. The public and southern lawmakers attacked Brown by mirroring the strategies Roosevelt had used to attack the Court. Simultaneously, the public discourse capitalized on Roosevelt's actions to discredit the Court, maintaining that the Court lacked legitimacy and had become a political body created by Roosevelt's unconstitutional machinations. Thus, the public discourse in the South challenged the legitimacy of the Court, both building on the Roosevelt-era criticisms and, simultaneously, refusing to credit the Brown decision because of Roosevelt's politicization of the Court.

Changes in the public attitude to the Court after 1937 both lengthened and heightened the post-Brown social turmoil. The Roosevelt-era's attack on the Court also provided a step-by-step set of instructions for the post-Brown attacks on the Court as well as attacks on lawmakers who supported integration. In short, Roosevelt's attempt at court packing decades earlier slowed and even derailed desegregation after Brown.

The story of what Roosevelt's court packing did to make the work of integration harder is a cautionary tale, particularly for those who want to alter the Supreme Court now in furtherance of a liberal cause. The only reasonable route for reforming the Supreme Court must be based on the public understanding of the Court. The historical and sociological patterns of court packing discussed in this Article provide cautionary tales and insights into precisely how that reform should proceed.

The argument proceeds as follows: Part I provides the context for how the public would understand court packing, documenting the link between jury packing and court packing and the connection to race. Part II contains a historical and sociological exploration of how the public understood court packing against the background of jury packing and how the public reacted to Roosevelt's court packing plan. Part III explains the role the public already thought Roosevelt was playing in race and integration in the country. This perspective returned when Brown was decided and contributed to how the pubic understood not only court packing, but also Brown and integration. Part IV tells the history of the impact of Roosevelt's court packing attempt on the public reaction to Brown and desegregation as required by the Supreme Court. Part V analyzes the Roosevelt-Brown history in terms of the modern push for court packing.

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Scholars regularly debate the intricacies of the history of court packing and the arguments for or against it. In the end, however, our opinions are not the important ones. The public experience and the public discourse will form the basis of the American reaction to future Supreme Court rulings, especially those of particular importance to the public, including issues of gun control, family, property, and environmental law.

Changes in the public attitude toward the Court after 1937 both lengthened and heightened the post-Brown turmoil. Any politicized change to the Supreme Court now will logically set up the Court's future decisions for the same treatment. One party may have the political will to pack the Court, but in doing so, they would simultaneously provide a step-by-step set of instructions for attacks on the Court when the next controversial decision comes down. Any reform of the Court must be a stabilizing force rather than a political one, so that the Court can do the hard work needed in the coming decades to reinforce the security and stability of American democracy. The goal should be a Court whose decision in a case like Brown would be greeted by the public with openness rather than hostility.

Professor of Law, Washington and Lee University School of Law.