A Concurring Opinion on Brown v. Board

In the matter of BROWN v BOARD, Justice Earl Warren was sensibly desirous of ensuring that the Court would speak with only one voice. He wrote the opinion, and the only opinion, for all nine Justices.

Warren knew of course that there would be blow-back from the politicians of the former confederacy -- and not only from them -- and that it would be good if the politicians engaging in blowing back at this opinion were not aided by any divisions within the court itself.

He seems to have had some trouble persuading Justice Robert Jackson of this necessity. Jackson was dying at the time but was participating in deliberations and worked on several drafts of what he expected to be a concurring opinion.

I suspect that Jackson thought he would help Warren's cause by making Warren and the other seven judges seem moderate. He may have deliberately sought to outline a position that would seem to segregationists more extreme and outrageous, so they would react to Earl Warren's position as to a moderate.

That was never likely and in time Warren talked him out of issuing it. Impressively, Jackson, who was hospitalized and dying when the 9-0 decision was about to be announced, left the hospital so he could be there for the show of unanimity.

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