Brown v. Board of Education was a noble exercise of judicial power. On perhaps the most pressing moral issue in twentieth-century America—racial inequality—the Supreme Court chose the right side well before the president or Congress did so. Not until 1959 did President Eisenhower declare racial segregation immoral, and throughout the 1950s, Congress failed to enact proposed resolutions affirming that Brown was the law of the land (not even that it was rightly decided).

Yet perhaps it is this same heroic quality that has enabled Brown to distort our views of constitutional theory, the Supreme Court’s role in effecting social change, and the history of civil rights litigation. Legal historians have frequently exaggerated Brown’s contributions to the civil rights movement, occasionally going so far as to claim that the movement would not have occurred without Brown. The Justices who decided the case knew better. They acknowledged that Brown was possible only because of antecedent changes in American racial attitudes and practices. Justice Robert Jackson observed in connection with Brown that segregation "has outlived whatever justification it may have had,” and Justice Felix Frankfurter later noted that he would have voted to sustain school segregation had it been challenged in the 1940s, because “public opinion had not then crystallized against it.”

Brown has similarly distorted our constitutional theory. No approach to constitutional interpretation is taken seriously today unless it can accommodate the result in Brown. Originalists, political process theorists, constitutional dualists, and others have made herculean efforts to justify Brown, distorting their theories in the process. Yet several of the Justices who decided Brown doubted whether conventional approaches to constitutional interpretation could justify the decision. At conference Justice Frankfurter conceded that, based on legislative history and precedent, “Plessy is right.” Justice Jackson admitted his difficulty in finding “a judicial basis for a congenial political conclusion.”

In his fascinating and important article, Professor Mack demonstrates that Brown has also distorted our historical understanding of civil rights lawyering. By taking Brown as their point of departure, scholars have imagined a pre-Brown history in which black civil rights lawyers focused almost exclusively on obtaining a judicial decree ending state-mandated racial segregation. By contrast, Mack shows that most black lawyers of this era were more interested in promoting racial uplift—helping black communities to improve themselves. When Charles Hamilton Houston made his famous statement that a black lawyer was “either a social engineer or he’s a parasite on society,” it was this racial-uplift conception of black lawyering that he primarily had in mind. Houston’s reform of the curriculum at Howard Law School in the early 1930s was mainly addressed toward devising business law courses that would enable black lawyers to serve the practical needs of black entrepreneurs. By the late 1930s, black civil rights lawyers concentrated on interracial labor organizing and challenging race discrimination in private labor markets at least as much as on school desegregation litigation. In addition, these civil rights pioneers were skeptical of the inclination or capacity of courts to support social reform in advance of public opinion.

I shall focus here on four of the many intriguing questions raised by Mack’s article. First, Mack convincingly shows that the top priority of black civil rights lawyers in the 1920s was racial uplift rather than desegregation litigation. It is worth pondering how much circumstantial constraints may have influenced this strategic choice. In 1913 a black newspaper observed that “the Supreme Court has never but once decided anything in favor of [blacks],” and not long afterwards the NAACP bemoaned that the Court “has virtually declared that the colored man has no rights.” Perhaps litigation seemed pointless in the face of hostile judges.

Yet early civil rights litigation faced even more daunting hurdles. The first lawsuits to challenge the exclusion of blacks from graduate and professional schools at public universities were brought in Missouri and Maryland, which were the only segregationist states to provide blacks with any access to advanced education (in the form of out-of-state tuition scholarships). In the states where blacks received nothing, litigation challenging the status quo would have been too dangerous. When the national secretary of the NAACP, John Shillady, traveled to Austin, Texas in 1919 to defend a beleaguered branch from state legal harassment, a white mob beat him nearly into unconsciousness, causing injuries severe enough to force him to resign. None of the perpetrators were even prosecuted. Perhaps, then, black civil rights lawyers focused on racial uplift because the situation in the South was too dire to permit much else.

Second, Mack rightly emphasizes that black civil rights lawyers were capable of simultaneously participating in racial uplift activities and civil rights litigation (at least where circumstances permitted the latter). But these seemingly distinct roles were even more intertwined than Mack sometimes acknowledges. At a time when direct action protests such as sit-in demonstrations would have been potentially suicidal for southern blacks, litigation was a method of mobilizing social protest.

Lawsuits could educate blacks about their rights and, in Charles Houston’s words, “arouse and strengthen the will of the local communities to demand and fight for their rights.” Because he recognized the need “to back up our legal efforts with the required public support and social force,” Houston referred to himself as “not only lawyer but evangelist and stump speaker.” Lawsuits provided unparalleled fundraising and branch-building opportunities for the NAACP, and they enabled southern black communities to witness the accomplishments and courage of black Americans. Watching a skilled black lawyer subject a white sheriff to a grueling cross-examination inspired southern blacks, who virtually never saw blacks confronting whites on an equal footing. Litigation also may have enlightened whites about race issues. One prominent black observed in the 1930s that “[c]ourt decisions, favorable or unfavorable, serve to dramatize the plight of the race more effectively than any other recourse; their propaganda and educative value is great.” Finally, litigation, when successful, provided blacks with one of the few reasons they had for optimism before World War II. As one black leader noted, even if court victories produced little concrete change, at least they “ keep open the door of hope to the Negro.”

Third, Mack’s demonstration that pioneering black civil rights lawyers participated in many activities other than desegregation litigation makes one wonder how NAACP leaders became so resistant to direct action protests by the late 1950s. Before World War II, sit-ins and street demonstrations were probably impractical in most of the South because they would have incited violent suppression. The Montgomery bus boycott of 1955-1956 revealed that conditions had changed: Direct action protests had become a viable alternative means of pursuing racial reform.

Yet NAACP leaders resisted pleas from members to supplement litigation with direct action protests. To Association leaders such as Thurgood Marshall, Martin Luther King, Jr., was a “first-rate rabble-rouser.” Thus the NAACP refused to support the voter registration activities of King’s Southern Christian Leadership Conference. In the late 1950s, the national office tried to prevent its youth council in Oklahoma City from conducting sit-in demonstrations, and it refused to support a direct action challenge to segregation in the public library by the branch in Petersburg, Virginia. Small wonder that when student sit-in demonstrations broke out in Greensboro, North Carolina in February 1960, the chairman of the local NAACP branch turned for support to the Congress on Racial Equality rather than to his own national office.

In the early 1960s, the NAACP’s initial reaction to both the sit-in demonstrations and the freedom rides was to try to shut them down. Even after such protests proved enormously popular and successful, leading the NAACP to change its tune, the association continued to misunderstand the significance of direct action protests. While King was urging students to go to jail “ to arouse the dozing conscience of our nation,” the NAACP was telling them to take bail and trying to convert the sit-ins into a few legal test cases. The association failed to grasp the true significance of direct action protests—that they enhanced the agency of blacks through collective action, demonstrated the passionate opposition of blacks to racial segregation, and provoked vigilantes and law enforcement officers to respond with violence. Converting such protests into test cases would have effectively nullified such contributions.

In the 1930s, by contrast, black civil rights lawyers had understood the limited transformative potential of litigation. Charles Houston acknowledged that law “has certain definite limitations when it comes to changing the mores of a community,” and he conceded that “[i]t is too much to expect the court to go against the established and crystallized social customs.” Houston warned that "[w]e cannot depend upon judges to fight . . . our battles” and urged that "[t]he social and public factors must be developed at least along with and if possible before the actual litigation commences.” Perhaps the NAACP’s stunning victory in Brown blinded the organization’s leaders to what they had previously understood: Litigation alone could not make a social movement.

Fourth, Mack notes that most scholars have seen tension between the legal realists, who attacked rights discourse as empty formalism and preferred legislative action to judicial, and black civil rights lawyers, who pursued a judicially declared right to a nonsegregated public education. Yet Mack shows that the realists greatly influenced many of the pioneering black civil rights lawyers. Charles Houston, William Hastie, Raymond Pace Alexander, and John P. Davis all graduated from Harvard Law School, where they studied with leading realists such as Roscoe Pound and Felix Frankfurter. One of Houston’s principal objectives in reforming the curriculum at Howard Law School in the 1930s was to incorporate realist thinking, and black civil rights lawyers applied realist insights to their litigation. They attacked race discrimination in private labor markets by debunking the public/private distinction, and they asserted the priority of collective interests over individual rights in defending injunction suits brought against blacks who boycotted businesses that served blacks but refused to hire them.

How did black lawyers trained by progressive realists such as Frankfurter and Pound become so enthusiastic about litigation as a method of social reform? Most progressives of this era were profoundly skeptical of judicial review because its primary use had been in the service of Lochnerism. Learned Hand, an early convert to progressivism, struck down only two statutes in fifty years as a federal judge. Felix Frankfurter once suggested abandoning the Due Process Clause of the Fourteenth Amendment because its interpretation invited unconstrained judicial subjectivity.

It is deeply ironic that many of the lawyers who helped pave the way for Brown and many of the Justices who decided it had recently been so hostile to judicial activism. Brown was difficult for Justices such as Jackson and Frankfurter, who prided themselves on separating their personal views from the law and questioned the legitimacy and the efficacy of court-mandated social reform. Thus, Frankfurter observed in connection with Brown, “[h]owever passionately any of us may hold egalitarian views, . . . [h]e travels outside his judicial authority if for this private reason alone he declares [it] unconstitutional.” Jackson similarly cautioned, “however desirable it may be to abolish educational segregation, we cannot, with a proper sense of responsibility, ignore the question whether the use of judicial office to initiate law reforms that cannot get enough national public support to put them through Congress, is our own constitutional function.”

Several of the Justices hesitated before invalidating school segregation. Given Mack’s persuasive demonstration that black civil rights lawyers were heavily influenced by legal realism, one wonders if these lawyers too hesitated before asking the Court to do so. To the extent they did not, this may tell us something important about how politically and historically contingent attitudes toward judicial power are. Groups deprecate judicial activism when it is unlikely to benefit their interests but quickly turn to singing its praises when they become its likely beneficiaries. Apparently, some things never change.

Michael J. Klarman, James Monroe Distinguished Professor of Law and Professor of History at the University of Virginia, is author of From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford Univ. Press 2004), which won the 2005 Bancroft Prize in History. Read a review of Klarman's book in volume 114 of The Yale Law Journal here.

Preferred Citation: Michael J. Klarman, Civil Rights Litigation and Social Reform, Yale L.J. (The Pocket Part), Nov. 2005, http://yalelawjournal.org/forum/civil-rights-litigation-and-social-reform.