Still striving toward a more perfect union

America changed on May 17, 1954. On that day, 50 years ago, Chief Justice Earl Warren announced the Supreme Court’s unanimous decision in Brown vs. Board of Education. As a legal matter, the decision declared segregation in public schools unconstitutional and disavowed the doctrine permitting “separate but equal” treatment of blacks and whites. As moral principle, the court announced that, after centuries of legally authorized racial degradation, the government could no longer humiliate blacks by setting them apart or punishing them for sharing the aspirations of their fellow citizens.

Public acclaim for and acceptance of Brown are at a zenith as the half-century milestone approaches. Today, public officials of every political stripe, and especially nominees to the federal courts, routinely rank the decision as the Supreme Court’s finest -- an unsurpassed triumph of American constitutionalism.

Indeed, praise for Brown has become so uniform and reflexive that it is difficult even to remember the world into which the decision was born or the outrage, derision and outright defiance with which the ruling was initially received in many quarters. “White Only” signs, then ubiquitous across the South, are relics now, as are the newsreels of prominent Southern politicians (including the current dean of the U.S. Senate, Robert C. Byrd of West Virginia) denouncing Brown as an illegitimate and lawless abomination. Lost too is the tepid reception Brown received outside the South: President Eisenhower rued the court’s decision to disturb the racial status quo, and many legal academics, even liberal ones, questioned Brown’s analytic bona fides.

But if time has smoothed the surface of the waters, a passionate debate about Brown’s legacy still roils underneath. Although state-sponsored racial segregation (the norm before Brown) is now dead and buried, many contemporary legal scholars question the importance of Brown in securing civil rights. For these academics, the nation’s progress on civil rights (such as it is) owes far more to Congress’ enactment of sweeping civil rights legislation in the 1960s than to Brown or any other of the court’s racially progressive decisions.

Much current commentary also emphasizes that Brown, even after 50 years, has largely failed to accomplish its most immediate goal of desegregating the nation’s public schools. For more than a decade after the court handed down its decision, Southern resistance to the idea of black children learning next to white children successfully frustrated its mandate of desegregation. More recently, the combination of white flight to the suburbs and opposition to interdistrict school busing has reversed much of the progress that eventually was made. As a result, many urban school districts have become re-segregated ghettos of inferior education.

For a number of prominent black intellectuals, this sorry state of affairs, plus what they see as other betrayals in the field of racial justice, has generated reflections on Brown ranging from disillusionment to despair. Some have come to the point of wondering whether blacks would have been better served had the justices in Brown upheld the doctrine of separate but equal, provided that the court require true equality of separate facilities and not the sham of equality that existed at the time.

Fortunately for those who would like to better understand the current ferment and Brown’s place in history, the anniversary has spawned an outpouring of books assessing the Supreme Court’s contribution to the enduring American dilemma of race discrimination.

It is impossible to understand either the successes or failures of Brown without setting the decision against the nation’s long history of race relations and the Supreme Court’s role in perpetuating both the institution of slavery and the system of Jim Crow that took slavery’s place in the South after the Civil War. Richard Kluger’s “Simple Justice,” first published in 1975 and now reissued with a thoughtful afterword, is the bible on this subject. A Pulitzer Prize-winning legal historian, Kluger masterfully explains how the Supreme Court came to construct the odious doctrine of “separate but equal,” how a cadre of young NAACP lawyers launched a 20-year campaign to topple that doctrine, and then how, under the leadership of Kluger’s “Superchief” Earl Warren, those plans came to fruition inside the Supreme Court in the spring of 1954.

The republication of “Simple Justice” gives occasion to celebrate Kluger’s remarkable achievement. Despite the passing of nearly three decades, no one has drawn more brilliantly the protagonists of the Brown drama -- especially Thurgood Marshall, the NAACP’s lead lawyer -- or more deeply penetrated the court’s internal debate over how to reverse the legal construct of Jim Crow, which historically, from Dred Scott through Plessy vs. Ferguson and beyond, the court had permitted to flourish.

If “Simple Justice” is lacking in any regard, it would be that its loving concentration on those responsible for Brown leaves less space for considering the larger changes in American society that helped them succeed in their endeavor. This broader context is the strong suit of “From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality” by Michael J. Klarman, a legal scholar and historian at the University of Virginia, who is among the leading academics writing about the law of race.

Klarman’s book is in sharp contrast with Kluger’s, but they complement each other well. “Simple Justice” is a book of heroes. It tells the story of how a dedicated band of mostly black lawyers devoted their lives and risked everything to try to force America to live up to its highest ideals and aspirations, even as the country humiliated and oppressed them and the race to which they belonged. Moving inside the Supreme Court, Kluger’s narrative then captures the magic of Chief Justice Warren, who, by dint of personality and political genius, took a court that had been deeply divided over whether to outlaw segregated schools and united it behind a ruling that flatly repudiated the cornerstone legal defense of Jim Crow.

“From Jim Crow to Civil Rights” is antiheroic, the work of a judicial skeptic who sees Supreme Court decisions -- good and bad, liberal or conservative -- as reflecting rather than transcending the politics of any given time. In considering the historical causes of Brown, Klarman focuses on transformative phenomena, such as World War II or the great migration of Southern blacks to Northern urban centers -- tectonic shifts that changed the national social dynamics of race and created a constituency for initiatives promoting racial justice.

According to Klarman, after World War II it was inevitable that the United States would undergo a fundamental shift in race relations, having just fought a war against Hitler and his ideology of racial superiority. It was engaged in a Cold War against the Soviet Union based in part on America’s claim to moral supremacy. Under the circumstances, Jim Crow had become an embarrassing hypocrisy whose days were numbered.

In Klarman’s thinking, Brown’s principal contribution to civil rights was not to codify a change of law that, in his view, was surely coming anyway. Rather, Brown advanced the cause mainly in a backhanded and ironic fashion -- by creating such an ugly and sometimes violent backlash in the South that it solidified support for civil rights among previously ambivalent Northerners.

There is much to be taken from both Kluger’s and Klarman’s accounts. Kluger brings to life the important truth that behind every great change in the law lie the sweat and courage of individuals. Klarman not only illuminates the social and political forces that have shaped the court’s historical approach to race discrimination, he also gives us a powerful reminder of the limits of law.

As Klarman rightly emphasizes, no court decision, however courageous and farsighted, can magically transform social attitudes. Ultimately, the effectiveness of the court’s work is hostage to the commitment of the president and Congress and, most important, to the receptiveness of the American people.

And therein lies the rub. In the last 50 years, the nation has made huge leaps toward racial equality. We have seen the flowering of a black middle class, the emergence of blacks as a vital political constituency, the development of a deep cadre of black leaders in every walk of life and a growing acceptance of mixed-race marriages and the category-defying generations they produce.

But Brown’s promise of a truly undivided and racially equal society is as yet painfully unredeemed. Race still matters in society, and in the worst way. Too often it defines the quality of our neighborhoods, our schools, our relations with the police, or our chance for a full, economically secure and happy life. Deep in the bones of white people, prejudice is not yet dead -- and across the racial divide, blacks are not blameless either.

These realities of race weigh heavily on the black intelligentsia who came of age during the birthing of Brown. Prominent among these is Derrick Bell, a former NAACP lawyer who now teaches law at New York University. In his prolific career, Bell has become increasingly bitter at the intractability of the nation’s racial dilemma, and his provocative “Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform” represents a deeply disturbing culmination of this emotional arc. Bell is unstinting in his praise of Brown as a legal and moral repudiation of the subjugation of blacks. But in reconciling the beauty of that original promise with what Bell sees as today’s harsh racial realities, he paints a deeply perverse portrait of Brown’s legacy and adds his name to the roster of those who wonder if blacks would be better off today had the court decided Brown very differently.

As Bell tells it, Brown has been transformed over time into an empty statement of principle that allows whites to feel good about themselves even as their baser racial attitudes perpetuate an economic and educational system that deprives most blacks of anything approaching true equal opportunity. At bottom, Bell no longer believes that whites will ever willingly embrace a thorough conception of racial justice and implores blacks to take a more defiant and self-reliant role against continuing oppression.

In “All Deliberate Speed: Reflections on the First Half Century of Brown v. Board of Education,” Harvard law professor and Bell disciple Charles J. Ogletree Jr. reaches a similar epiphany. And unlike Bell, he proposes at least one new engine for driving progress toward racial equality. Ogletree is at the forefront of the push for “black reparations” and specifically for the creation of a fund totaling many billions of dollars to be used to assist poor blacks in realizing at least some fair measure of the American dream.

After reading these four accounts, one cannot help but come away feeling gloomy. The authors -- two white and two black -- share an aching disappointment in the results stemming from Brown and the inability of the nation to translate the decision’s moral vision into social reality.

This despair is readily understandable, but it still may not be justified. Even after 50 years, we are only a middle distance from Brown’s long overdue but revolutionary disavowal of more than three centuries of deeply entrenched racial apartheid. As much as it ought to be self-evident that all people of all colors are created equal, neither human history nor the human heart has fully honored this most fundamental of truths.

To the contrary, no nation has ever wholly assimilated a racially distinct former slave class. In fact, the ideal of racial justice has eluded every society since the beginning of time. It is a Platonic form to be yearned for, yet may never quite be achieved.

Which is exactly why Brown, for all the imperfections of its implementation and all the backtracking on its furthest-reaching guarantees, remains dazzling and great. Prior to Brown, as a matter of national law, there was not even a yearning for racial equality. Brown changed that, forever. It gave Americans a measuring stick for their aspiration to be a country truly just and free -- and created a stick that could be seen and held and wielded by a racial group ground down by centuries of legal subjugation.

This achievement merits celebration now, and for as long as we encounter the evil that is bigotry. *