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August 30, 2018


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Bill Turnier

An interesting podcast on this topic is Malcolm Gladwell’s “Miss Buchanan...” in his Revisionist History podcast series.

Anthony Gaughan

Thanks for the link, Bill. I will check out that podcast. Have a good weekend.

Erik Jensen

One of the interesting things about Brown is that it did not explicitly overrule Plessy.

Anthony Gaughan

That is indeed an interesting point, Erik.

Of course, the reasoning of the Brown decision demolished Plessy in everything but name. In addition, on the issue of the psychological harm caused by segregation, the Brown court expressly declared that "[a]ny language in Plessy contrary to this finding is rejected."

Yet, as you point out, it is interesting that they did not specifically declare Plessy overruled. Moreover, it remains a remarkable fact that as late as December 1952, there were only 4 justices solidly committed to overturning Plessy. But when Chief Justice Fred Vinson died and Earl Warren replaced him, the seas finally parted. Afterwards, Felix Frankfurter famously quipped that Vinson's death was "the first solid piece of evidence I've ever had that there really is a God."

Michael Klarman's book, From Jim Crow to Civil Rights, includes a fascinating analysis of the justices' conference notes during the Brown deliberations. Professor Klarman points out that the justices' clerks strongly supported overturning Plessy (with the sole exception of William Rehnquist, who was clerking at the time for Justice Robert Jackson). It seems to me that the near unanimity among the clerks likely played an important role in encouraging the justices to reach a 9-0 ruling to reverse Plessy.

Thanks for your comment, Erik, and have a good weekend.

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