Jamesian Philosophy Refreshed

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 a...

I recently had an opportunity to read the unpublished concurring opinion of Justice Robert H. Jackson in the BROWN v BOARD decision. The BROWN decision came down in May of '54, and Jackson died in October of that year, so his participation in this decision was in a sense his swan song. The decision to strike down de jure racial segregation in public education was unanimous, 9-0.  Justice Earl Warren's opinion was the only opinion, a fact of some historic significance since it meant there were no dissenting (or even distinct) judicial words around which the sizeable resistance to the implementation of this decision could rally. It appears to have been precisely for that reason that Jackson was persuaded NOT to publish the concurring decision, NOT to grant resisters an inch. Jackson's concurrence was different from Warren's opinion in important respects and, yes, one can see why Warren urged him to drop it. Consider this passage: The white South harbors in hi...