Today the Fourth Circuit denied the government’s motion for an emergency stay and Garcia v. Noem. Here, I will not focus on the merits of the appeal. Rather, I want to highlight how Judge Wilkinson’s opinion invokes a defining moment from the Civil Rights Era:
It is in this atmosphere that we are reminded of President Eisenhower’s sage example. Putting his “personal opinions” aside, President Eisenhower honored his “inescapable” duty to enforce the Supreme Court’s decision in Brown v. Board of Education II to desegregate schools “with all deliberate speed.” Address by the President of the United States, Delivered from his Office at the White House 1-2 (Sept. 24, 1957); 349 U.S. 294, 301 (1955). This great man expressed his unflagging belief that “[t]he very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of Government will support and [e]nsure the carrying out of the decisions of the Federal Courts.” Id. at 3. Indeed, in our late Executive’s own words, “[u]nless the President did so, anarchy would result.” Id. . . .
It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.
Judge Wilkinson treats the story of the Little Rock 9 in a very John-Roberts fashion: it tells a beautiful story about judicial supremacy where everyone did what what the federal court said, and everything worked out for the best. The history tells a different story.
The general story of the Little Rock Nine is known, but the legal posture is not. Randy and I discuss this history in the essay on Cooper v. Aaron in 100 Cases. Please watch the video to catch up. Eisenhower’s speech is in there.
For those who do not like to watch videos, you can read the summary, though I think the video footage is compelling:
In 1955, the Little Rock, Arkansas, school board approved a plan for gradual integration. However, the so- called “massive resistance” spread to Arkansas. Citizens approved an amendment to the state constitution that opposed Brown and desegregation. Based on that amendment, a state court judge issued an injunction against members of the Little Rock school board. They were ordered to stop the implementation of the federal court’s integration plan at Central High School.
In response, a federal district court issued an order to block the state court injunction. The situation escalated quickly. Governor Orval Faubus ordered the Arkansas National Guard to prevent black students from entering Central High School. The National Guard blocked nine African- American students — known as the Little Rock Nine — from entering Central High School. Neither Faubus nor the National Guard were bound by the previous court order, which only applied to members of the school board. The situation then escalated further. A federal court enjoined the National Guard from blocking access for the African- American students. In response, the Little Rock Police Department replaced the National Guard. The police had not been included in the prior court order that bound the National Guard.
Two days later, in one of the most dramatic moments of the Civil Rights movement, President Eisenhower dispatched the 101st Airborne Division to Arkansas. “Mob rule cannot be allowed to override the decisions of our courts,” he said. This storied division of U.S. Army paratroopers had fought its way across Europe in World War II and held its ground at the Battle of the Bulge.1 Now its troops were deployed to Little Rock, Arkansas where they escorted the Little Rock Nine into Central High School. Throughout the remainder of the year, the students attended class under the supervision of federal paratroopers.
Even after the federal intervention, the opposition to the desegregation plan did not subside. As a result, the district court granted the school board a thirty- month extension to integrate Central High School. The judge found that a delay was warranted, because the integration plan had caused “chaos, bedlam, and turmoil” in Little Rock. The Eighth Circuit Court of Appeals reversed the district court’s judgment because the school board did not advance a sufficient basis to suspend the integration plan.
Shortly before the start of the semester, the Supreme Court convened for an emergency hearing. The question presented in Cooper v. Aaron was fairly narrow: Was the thirty- month extension given to the school board consistent with Brown’s requirement to integrate with “all deliberate speed”? During oral arguments, the lawyer for the school board told the Court, “It was certainly not anticipated at the time [the] plan was formulated that the Governor of the State of Arkansas would call out troops to keep integration in the schools from taking place.” Therefore, he claimed, a delay was warranted. The school board simply needed more time to deal with the unexpected circumstances. The Court was not persuaded by his argument. Chief Justice Earl Warren asked the attorney, “Can we defer a program of this kind merely because there are those elements in the community that will commit violence to prevent it from going into effect?” Ultimately, the Supreme Court ruled that the delay was not permissible: “The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature.” In an unprecedented showing of unanimity, each of the nine Justices signed the opinion.
This history teaches several lessons.
First, President Eisenhower dispatched the troops in 1957, about a year before the Court’s decision in Cooper v. Aaron (1958). (My article in the myths of Cooper should be useful reading now.) The 101st Airborne did little to stop the massive resistance to integration. Indeed, the troops had to escort the black students to school every day to protect them from mobs. Eisenhower’s action did little to stop the “anarchy.”
Second, the federal district court judge in Little Rock though it best not to integrate the high school due to the chaos, and instead favored a thirty-month pause. Appellate judges who were not close to the judge sought to dictate the path forward. Which level of the judiciary was acting with the right amount of judicial humility?
Third, even after Cooper v. Aaron, Central High School did not integrate. Rather, the school simply shut down. Indeed, throughout the south, schools, swimming pools, and other institutions were closed or transferred to private ownership to avoid federal court injunctions.
What lesson do we draw from the “incipient crisis” in Little Rock? In my view, courts lack the power to solve all problems. Even where there is jurisdiction and law on their side, judges run out of authority. Despite what Brown said, the Warren Court couldn’t integrate schools. They barely tried after Cooper. That task fell to district court judges and federal civil rights enforcement. Decades later, consent decrees were still in force.
We need to take a sober assessment of the power of the courts. As I’ve said many times, a constitutional crisis is a coin with two sides: what are the courts doing, and what is the executive doing? Not all of the blame can be placed on one coordinate branch of government.
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