i think that's after i read before greg, if i'm not mistaken. two points. one about -- they've all been glancingly referred to, the point about rule formalism a little more directly. but i think it's important to keep in perspective that the judge really was a great believer in american institutions. and starting with the courts. i think the subtitle of ron williams' very excellent book "american radical" is entirely misplaced. he had disdain for radicals and for all of the different movements that had arisen out of the plight of the american negro. all except the use of the law and ordinary procedures. second, of all of the stories that he told, you've heard a sample, there are more in gilbert king's book.

there are more in the terrific play that laurence fishburne does, in all these stories, he's never the hero. never. thank you. [ applause ] >> i said at the beginning we had a world class panel. i think you can see that was richly validated tonight. can we have a round of applause. [ applause ] let me turn the floor back to the chief judge. >> thanks again to paul englemire for a spectacular job. [ applause ]

and to a spectacular panel. your words will live on with us in our learning center.

number 759, petitioner versus arizona. >> your arguments for number 18, rowe against wade. >> quite often in many of our most famous decisions are ones that the court took that were quite unpopular. >> let's go through a few cases that illustrate very dramatically and visually what it means to live in a society of

310 million different people who helped stick together because they leave in a rule of law. >> good evening and welcome to landmark cases. we were 2/3 of the way through our 12 series. tonight's a 1954 case of a school of education, brown v. board of education. we'll begin by listening to linda brown on the roots of this case. >> my memory of brown began in the fall of 19 a. in the quiet kansas tonight of to pika where a mild mannered black man took his plump 7-year-old daughter by the hand and walked briskly four blocks from their home to the all school and tried without success to enroll his child. black parents of toe pika fell that trying to enroll their

children in schools nearest to their home was long overdue. many were the evenings my father would arrive home to find my mother upset because i had to take a walk, just like she did many years before and catch a school bus and be bussed some two miles across town. i can remember that walk. i could only make half of it days, because the cold would get too bitter for a small child to bear. i can still remember taking that bitter walk and the terrible cold that would cause my tears to freeze upon my face. >> that's linda brown talking about her experience as a school child in topeka, kansas and how he story led her to the supreme court and one of the landmark decisions. we'll learn about that case, how it came to the court and how its

implications are. let me introduce you to tom ka brown-nagin where she teaches law and a long member of the civil rights movement. welcome. >> thank you. >> the president and ceo and our partner for this series and the author of numerous books of the supreme court, including the supreme court and personalities and rivalries that define the personalities. great to have you here. >> really a thrill to be here. >> thank you and for all your help as well. so as we get started let's talk very big picture on the issue in this case. what was the heart of what was decided here? >> well, the supreme court in this case considered the statute of whether segregation in schools was unconstitutional and

thus, it was considerable for the court to reconsider the 1986 case, which found that segregation on rail cars was within the constitution. >> and jeff rosen why did this become a landmark decision? >> because by overturning, as tomiko well said, the court disfaced the disdain of this decision and refilled the 13th amendment. the amendment was designed to assure equality of civil rights and justice harlan thought it was obvious that a fundamental right k like the right to travel on rail roads was a fundamental civil right. but the basic insight the court finally recognized is that separate but equal and inherently unequal is to separate people because of the

their race is -- it took 100 years to recognize to anyone in the south, just as harlan said, it was to degrade african-americans. because it took so long for the court to recognize that is what made brown the land mark of the 20th century. >> it is known as brown but one of the factors that people are learning with us would be surprised that brown is one case but originally five cases. explain how that works, the consolidation? >> there was a bunch of them, they're not well-known today. one of them involved the d.c. government, involving weather the federal government, as well as states could have separate schools. to decide that case it was called bowling versus sharp. the court couldn't use the

instead it had to use the 5th amendment to the constitution which prevents congress from robbing any person any due process of law. it's a technical document called reverse in koorpg but they said it would be unthinkable that if the states can't discriminate, d.c. can. there were a bunch of other really really interesting cases including one prompted by protests, by deplan toes. the on win for the nacp was get heart versus bell ton out of delaware. that time the court did order that african-americans be admitted to the segregated schools. the davis decision came out virginia, which challenged segregation in prince edwards kho county. and finally there was a case called brigs verse ellis from south carolina. there were human stories behind each of those cases and it's

almost a quince dense that linda brown became the face of all five cases. >> how does courts decide to enjoin cases like in into one specific case and give it that case's title? >> i think in this circumstances they consolidated the casings because they raised the same issue. they were consolidated for convenience because it made sense to consolidate them and consider this issue as it was raised in the several states. the naacp strategy involved filing cases in the states where the issues were most dark as to the reality that they were able to show in brown. and that was that separate was never truly equal, that is what the court decided. that justice brown's decision in police see where he said that

where if it is a harm of seg grags it's only because blacks are putting that con strapgs on it. in brown, the court rightly recognized that really the problem with segregation in schools, anti-aggregation generally, the court went on to stim, it was a stigma. it was considered a sign that blacks were infererer. >> we'll go to calls in about another 20 machines. if you began dialing now you can get into the cue. 202-748-8901. mountain and pacific time zones. you could send us a tweet. if you do use the #landmark

cases. finally there's a discussion under way on our facebook page, c-span is a facebook site and we have this video you just saw posted and there's comments already coming in. we look forward to hearing what you have to say about this case and hear your questions about it. so going to spend a little more time on the history that goes into this case. i do want to learn more about the ferguson case, 1896. and you mentioned that it was a transportation case. >> it was. this is a time when jim crow was not yet up and running so a law requiring segregation was not welcome by the rail roads users themselves. it was challenged as a violation protection clause and as tomiko well said, justice brown held for the court, as long as equality is equal there's no problem because facility is all the constitution requires and any imply tags of infer yort is

of african-americans. john harlan who is the greatest of the 19th century, this is a kentucky former slave state. he's a no-nothing turned abolitionist who said i'd rather be right than -- he's the one writing the decision to strike down the civil rights act in 1875, his wife put the pen that the chief used to write -- this is one of the great defenders of the promise of the reconstruction amendments in the 19th century. in his decedent in police set versus ferguson he basically says everyone knows the real purpose of separation is not for the convenience of both parties but to degrade and stigmatize african-americans. the constitution neither knows nor toll rates classes among citizens, the constitution is

color blind there is no cast here. but there is an odd previs to his decision which is jarring by modern terms. he said the white race at the moment is preimminent so it will continue to be if it maintains its traditions but in respect to civil rights, the constitution's color blind. he was continuing this distinction that lincoln other, you know, reconstruction people at the time maintain between civil and social rights. he was saying you have to give civil rights to everyone but we're not mandating social e qualities. >> i think that's right. it's almost as if what justice harlan's saying is that it's overkill to dirty up the constitution with these kinds of racial classifications. he -- you could read the prefis so that wonderful part of his

opinion where he's saying the constitution is color blind, as a way of saying because of social conditions, it's not necessary really to stipulate in the law to have our constitution smerjed by this practice of segregation. >> so, question -- >> this is so important and interesting. the big, this descent is so important that thurgood marshal leaves it before he argues -- so he's inspired by this. the huge question is whether when harlan said the constitution is color blind did he mean all racial implications are per admissible or was he saying something with respect to civil rights that constitution can't have classifications. is he saying no classifications or only classifications that affirm a cast system? and this is a big debate over

affirmative action. >> that actual gives rise to the next question which is the legacy of that decision. it's hard to compress the last 50 years into a supple of sentences but we must for the sake of time. the ferguson case give rise to the jim crow laws or would they have happened anyway? >> that's a very hard question but it's probably after the compromise of 1876 when the republican party exchanged for winning this contested election got out of the business and forcing recrux wouonstruction wt have had the force of will to resist jim crow as it arose. i'd be very interesting if tomiko disagrees i would say the ferguson case caused jim crow but it didn't come out in other ways to stop it. >> i think that's right. i would not subscribe to the supreme court that kind of power

at that time. it was pretty late in the day the politics of situation that jeff described is important but it nevertheless is an important indication from the court and -- an indication from the court to which there was no great outcry in the public, thus suggesting that by this time, there had been a consensus reached that the south would do what the south would do in terms of race relations. >> so i need to fast forward to 1940s america where things are actually beginning to move in a more positive direction, notably the affect of the war and the contributions that african-americans made during war. or in 1947 there was a desegregation, a desegregation of the armed forces. in the sport's world jackie robinson integrated baseball in the 1947. so how did thing start to shift

in the late 1940s? >> well, you put your finger on something that is really important and that is in terms of the impact on the war. the fact that african-americans served in the war and then coming home in this country and being mistreated, including because of the segregation laws. being mistreated by virtue of the law but also experiencing terrible incidents of violence. and the jukt that position of the soldier having fought hitler and his creed with their treatment here in this country where they felt they were experiencing the same kind of ideology in this country was enough to make the soldier vital in the struggle for civil rights. other things that were happening were that african-americans had my dprated in substantial numbers to the north, which men they were a force in politics, which was important to changing a sense of where

african-americans belong in society. you mentioned the movements in sports, which was very important, all of which was to say that african-americans were gaining is that tour and they also were beginning more so than ever to think in terms of resisting these jim crow laws. >> so thurgood marshal is going to become an important player in this case. later on in his life he becomes the first african-american appointed to the supreme court. in 1940, what was he doing? >> he had founded the naacp, legal defense and educational fund in order to launch a legal campaign against segregation. and he does so with a strategic brilliance that has come to be seen as decisive in brown victory. he look as public opinion and sees the force as tomiko so well described. he knows the presidency is

turning against segregation because of the cold war. and it's really bad, the russians are saying look at these hypocritical americans who are segregated, and the truman desegregates the military and the truman and eisenhower are both supporting desegregation. it's looked at as a whole and saying it's still the desegregation in schools. he wants to start smaller first by attacking desegregation in law school admissions and graduate school admissions. and then after having won those victories, attacking schools. he doesn't initially argue the ferguson case should be overturned, instead he said -- he attacked unequal stilts in the texas swept versus painter where he said you're not providing education to african-americans. he -- a graduate student is

literally demeaned by having to sit separately in the school, and that is clear unequal. after having established those two precedents, finally there's the big debate the ferguson should be overturned and the public schools should be attacked. >> let's take a look at this map and show you what the public schools look like in segregation in the early 1950s. the reddish pink states, segregation in those states were required. the blue states no segregation laws. and the green states in the northeast and midwest seg grags was strictly prohibited. that was the situation going into this defense of -- by thurgood marshal of using the legal system to approach segregation in schools. that's really at the heart of this case. we're going to listen to thurgood marshal next talking

about the legal system and his thoughts on how to use the courts to address this problem in america. >> -- what's to me is important the law and determine the condition of the me grow. he was emancipated by law and then disfranchised and segregated by law. i submit the history of the negro in this country demonstrates the importance of getting rid of hostile laws and seeking the security of new friendly laws, federal, state and local. >> other civil rights activists would chose different methods to make the case, thurgood marshal chose the law, can you talk more about that? >> sure, well as jeff said the strategy that was implimented by

thurgood marshal it was granted and brilliant ultimately. it also was daring and risky in the minds of others at that time who were equally committed to black freedom. people like randolph, ralph bunch were sceptical of using the courts and the law to achieve emancipation, social change for african-americans. partly this was because people like randolph were interested in an sbe racial movement. those were other people who thought the courts were only as good as the personnel on the court and it would be republicaned that the judges would reflect the racial attitudes of the majority of the population. therefore, why think the court would be a good venue for

vindicating african-american rights. and there were those who said that thurgood marshal and the fund was able to prevail -- excuse me, segregation could, notwithstanding the chang in the law which is perhaps the most profound criticism that could be made. and i have to say that all of those critics were on to something, and that's really the difference between constructional law in theory and on the books and on the ground. ultimately all of these people were saying that individuals are the face of the law that people experience on an every day basis and they were septembkeptical t individuals would come through in the way that thursday god marshal imagined. >> let's start mixing in your comments. first, jeff rosen, this is kathy by the wayler on twitter who asked if brown did overrule

ferguson? >> brown did overall ferguson. it was applied to school and in subsequent cases the court applied it to desegregate swimming pools and other public facilities and so forth. the main question was should the case be overturned and brown be overturned. >> i would say i think what the caller may be getting at is the way in which the opinion was written. and the fact that in the opinion, justice warren writing for the court, used language saying to the extent that there's anything in the case inconsistent with what we're saying, then what we pull back from the principal of that case. so it wouldn't the kind of robust language of overruling that you might see in some other cases, and i think that was by design. it was a strategy for the court

to try to be a consensus court. >> and there was another -- that's exactly right. there were other parts of the opinion that by failing clearly to say, segregation was wrong at the time of that case and it's wrong now because it's stigmatizing and degrading, gave critics of brown time to resist it. whatever may have been the state of public education at the time of the 14th amendment now it's really important and it has to be given to everyone on equal terms. there was the famous footnote 11 in which the court coming off of some -- in the trial court cited the famous doll studies that have found that african-american children has lower self-esteem and were more likely to chose white dolls than african-american dolls and this led people who were resisting the decision say that it was based on bad social science.

i think tomiko's right the clearing overturning of police set made it hard to resist brown. the the court was wrong to rely on sociological evidence, the court would preferred the purpose of segregation is to degrade and therefore it's overturned. >> barry is watching us in michigan and your own. >> caller: good evening. i'm calling from an arbor, michigan. >> oh okay. >>. >> caller: i'm enjoying this theerly. getting to my questions. my first question is did the framers believe that segregation was a violation of equal protection of laws given the fact that the nation's capital was segregated? and with this in mind, could the brown decision have been made

using a religious interpretation. and the final question is when the the 5th amendment was passed there was no equal protection law. so in the bowling versus sharp case be decided in using the interpretation? >> it was a great question. so read michael mcconnell's great article, originalism in the desegregation decisions, it's in the virginia law review and it's the best team to treat an original defense of brown. here's what we know, there were knows in congress in 1868 and john big gum was among them, who thought basic civil rights had to be amongst them all. at the same time the law clerk, alexander bickel wrote a long study -- and it's clear people in 1968 who opposed the amendment did not think schools ought to be desegregated. people stood up and opposed the

amendment and said, don't worry this isn't going to apply to school. in order to say the schools are covered you really have to move around to 1875 when the congress was more liberal. this is a problem for originalist, brown is hard to justify over original interpretation and no current justice as done a great job in deciding why it is -- >> i'm going to stop there. we'll get back to that later in the program. fulton is watching us from maryland, you're on. >> caller: yes, my -- >> we're listening. >> caller: -- comment is, do you think that after 100s of years of segregation that the impact on black families that they had in the past is there some type of reparations to the justice

system for black american families? >> thank you. >> well, that question has been debated by a lot of people, and i think that there are certainly the arguments to that effect. the -- i think most people come to the conclusion that there are two problems, one of which is politics. and the other of which is a concern about how one would actually assess the damages. if one could convince the right people that reparations were appropriate, how would one actually go about figuring out what was owed. now, one might say, that well, just give it a shot. but, you know, it's a question that's been debated a lot. but really the problem is a political problem. >> and next is rob, frost burg,

maryland. hi robert. >> caller: good evening larjs how are you doing? yes, ma'am i'm a vietnam veteran. and one of the things that have just devastated to me, is first of all democracy has never lost anywhere on earth and it's been respect everywhere. in pure colonial supremacy and racism -- was driven all over the world just driven out of their lives because it's so intoll rational to people. i fought in a war where we were driven out that colonial mentality castration. here we talk about brown versus the education system. i mean, it is so -- that we still hold on to these stupid prejudice we had a civil war over this insanity, and yet, my country with all the beautiful

presidents that it has, and people learn to respect all over the world, yet we keep on holding on to what was driven out all over the world weather it was armed revolution. people are tied of that can't racism. they're tired of it every where on earth. thank you. >> well, first i will say thank you for your service. the second thing i will say is that you make a fantastic point which is that the u.s. has been able to export democracy to many places and there are many nations that look up to our system, for our constitutional system, and yet it is true i would a that there still is a cast. in many instances between what i call before law on the books, and our aspirations as a country, and as a people and every day practice. and partly that's reflection of

the fact of something that i said before, which is that -- and something that frankly the court was concerned about at various times, and that is the ability of law to change people's hearts or every day practices. in order for there to be social change in the way -- in race relations -- in a way that you aspire to rightly, it really has to occur not only institutionally but interpersonally. >> so this was used in one of the lower court cases in davis versus county school board here in the county of virginia. and it's interesting because the documents, the difference between white and black schools in virginia, both sides plaintiff and defendants use these pictures stated that they've supported their

positions. let's watch. >> these photographs are exhibits in the court case dorothy davis versus school board county. the dorothy case was wrapped into the brown case before the supreme court. what we're looking at are the exteriors of the school. here's a white school, notice the brick, two story structure in a neighborhood landscaping and sidewalks. while here ks we have several buildings that compose of a school some which are brooks, tar paper and a rural setting. now we move inside to the classrooms. here we have a excite school, notice the student seems comfortable. while we take a look at african-american school, children are wearing coats, there's a very large heater mt. middle of the room showing us how cold it was in the room. moving on to different parts of

the building, her we have a home ek class in a white school. notice the appliances are relatively new and modern. while in the african-american schools it's a much different story. it's in a basement, the materials are older and also you could tell much more worn. these exhibits were submitted by both the plaintiffs and defendants to show on the plaintiff's side these facilities were unequal, whereas on the defendant side they wanted to show these facilities were just about equalism. >> so, as we're looking at those, we have to talk about one of those cases, the brown versus board of education of topeka made its way into the federal courts. first of all is the brown that we saw in this case the linda brown we saw earlier? >> it is linda brown and she was the daughter of oliver brown who was -- he was a -- he was in

topeka and he was a welder in the shops of the santa fe railroads. >> he was also a part-time preacher. in some pictures he chose to wear his collar which as a dimension no into this case. >> he was brought into this case he didn't seek them out. the reason the naacp and thurgood marshall chose this case was to avoid that the schools weren't equal. that's why he picked a school where there was no allegation of separate but adequately facilities. he was stressing the fact that linda brown as she said in that incredibly moving introduction, did you hear her say her tears froze while walking to school. the fact she had to walk to a

bus to take a ride to another school, sumner elementary which was several blocks from her house which she could have walked directly to. to her and her father was an outrage and didn't rely on whether the facilities were equal or not. >> the arguments before the court, naacp was represented by jeff carter, arguing for the school board, lester roe dell. and testifies a three panel that wrote the opinion. can you tell us anything about that opinion we should know about for this story? >> the important as spektd of that opinion i would say is that although the judges rejected the application of sweats and -- which were two cases where the naacp has per vailed, it did

include a finding of facts indicating that segregation of schools was harmful, which was incredib incredible. for the naacp it's precisely the issue that was so controversy y'all before the supreme court. so it was a decision that on the merits was adverse to naacp but to that finding of fact there was a nugget in there that was helpful. >> so jeff rosen could you explain how these cases made it to the supreme court. were the jays looking for a case to decide this? what was the process where these cases were psychologicaled and the courts agreed to hear them? >> i don't know that the justices were looking for it but there was a disagreement among the lower courts which increases the possibility the court will take the case. it was very important that the president had both the trumanize

enhowever administration had filed briefs. so, i think to a certain extent the court felt it couldn't avoid it. but then something very dramatic happened. i don't know if this is the time to tell the story? >> probably not. let's take two more calls and then we'll talk about what the supreme court looked like in 1952. because in fact, this court -- excuse me, this case was heard twice but two different courts and we'll talk about the drama that caused that court to be different the second time aren't. gary is in tampa, florida. hi you're on the air welcome to our program. >> caller: thank you. while i'm aware there were impeachment warning scenes on southern highways, what i'm curious about was brown versus

board of education, an issue saying the 1956 proper campaign or the 1960, 1964, 1968, et cetera, i don't remember reading about if it was a specific issue raised in any debates and i'm curios to hear some feedback? >> well i don't know that i can talk about presidential debates in brown versus board of education, but i can say that it was -- it was made a highly issue in politics, certainly in the south where there was deep resistance to brown. so, if it wouldn't debated in formal terms it was certainly something that was talked about or was a focus of -- he was a person from which one wanted to pound the flesh right, he was the representations of brown and the court in the sense that the court had been activists in a way that it had never been

before. so, i think it's clear that brown was an issue in politics generally. i'm sure that at various moments, it was an issue in presidential politics, certainly it became an issue in presidential politics during the nixon campaigns, and later on after the court had actually started to enforce the decision. >> josh in iowa you're on c-span. criminal >> caller: i want to say quickly that c-span will expand on their cases and do of 12 historic cases. my question was that justice hugo black who had been a member of the kkk and also the opinion to redeem himself by voting to end school segregation? >> such a great question.

and as you say hugo black is appointed to the court by roosevelt, soon after it's reported that he was in the clan, there's an outcry. he gives a roadway address. which can out on youtube, he stand before the mics and say i did join a clan, i re-signed i denver rejoin. that's all i have to say about the matter. the outcry which led to protest around his house must have made a deep impression on him because he joined opinions recognizing racial and equality and procedural cases. during brown case he's the one southerner in the initial vote who is very keen to vote to strike down segregation. some speculated it was in fact to redeem the stain of his clan membership. he's also the only southerner who said at the conference, there's going to be blood and

people are going to die. we should announce a clear rule and get out of here pause the court can't solve this. there's one final story that's interesting, roger downford was a -- for hugo black, at one point he asked the justice, so justice black why'd you join the clan? there's a silence among the other clerks, and black cause paused for a moment and said son, if you were running for a senate in the 1950s you'd join a clan too. that was his answer to that. >> just brief discussion of what the court looked like in 1952, chief justice was fred vinson and if you watched our series last week you'll remember fred vinson was a truman appointee and he was joined on the the court by justice hugo black,

harold burton, tom clark, william o'dug loss and stanley reed. so last week we heard vinson did not do an effective job by bringing coalitionsing to in a very very divided court. in 1952 was it still very very divided and was he having a difficult time bringing together two groups within the court that really didn't see eye to eye? >> well, i think the basic problem with vincent was that his colleagues didn't republican him very much. thus, he did not have the institutional authority that was necessary to try to bring the justices together is what i would say. the division that i think is most important to perhaps talk about is the rivalry between jackson and frankfurt on the one hand, and hugo black, and douglas on the other.

and what that represented in terms of how the justices thought about the constitution, i'm sure jeffrey will have something to say about this, but the thing to say about the first combination was that there was a belief in judicial restraint and concern about the justices issuing holdings that were legal holdings and not political. and so, a lot of concern about how to actually deal with me see, me see is a president that was on the books for a very long time and justice jackson and frankfurter were concerned about how to justify a decision to overrule me set. >> can i just pick up on that? tomiko so well describes that. and they become manifest in the first conversation over brown. so as tomiko says, the

colleagues don't respect vincent. vincent threatened to punch frankfurter in the nose because he was condescending to him. so the initial vote is something like four votes to strike down segregation, black, douglas, newton and burton. three votes to possibly uphold, vincent from kentucky, stanley reed from kentucky and tom clark from texas. two undecided frank further and jackson. two who are -- they don't think the courts should be stepping in here. so the initial vote is taken and looks like the segregation is going to win and then all of a sudden before the court can decide the case vincent drops dead of a heart attack. so on the funeral train, on the way home from the funeral, it

was said that this is the first indication i had there is a god. then the court reorders the case and it comes in and you probably want to wait to hear what happens. >> i do. first i want to get the terns on the dock for our viewers. defend attorneys included john davis who has been in three of our landmark cases. who is john davis and why is he at the helm of so many cases? >> he was the presidential candidate, unsuccessful presidential candidate, turned one of the great appellate lawyers of his age, courtly, silver haired, fit. you can call him a strict constructionist, he said i definitely don't believe in a living constitution. but he really did feel like he was defending southern traditions. for him this is an easy case. he says look the court repeatedly affirmed segregation,

of course he's on the books. the text doesn't forbid segregation, the original understanding clearly allowed segregated schools. he thought he was going to win easily and for him he's so invesseled in this case, after the oral argument drg i want all the readers to read this, the end of oral argument davis has tears in his eyes. thurgood marshal says that's how he was invested. >> and on the other side was thurgood marshal as we mentioned. robert carter was part of the naacp legal team. robinson arguing the virginia case, lewis redding. jack greenburg argued part of the delaware case, james hayes and nay brit. i want to show another video because you talked about the

impact of this social experiment case. so we have a video about kenneth and clark who had conducted this test, and we'll talk more about its impact on the justices deciding this case. let's watch. >> the doll test was integral to the brown v. board of education because it clearly demonstrated that separate was not equal and separate was not good. in fact separate was an injustice. what we're looking at here are the dolls that doctors ken net and clark used in the doll studies. the doll test were a series of studies that may mie clark and kenneth clark did to try to bring awareness, racial

awareness in children. if children are aware of race and different races and the deference how racial groups are treated that it would impact how they felt about themselves. what they did that actually became very well-known part of the brown case, was they showed young children children black a dolls. and they would ask the children show me the doll that's nice, give me the doll that's the best, give me the doll that looks like you. and more often than not the black children showed the doll -- the nice doll was the white doll. the doll that was the best was the white doll. when we got to that last question give me the doll that looks like you, that's when the children would pause and be a bit more confused or looked

troubled as dr. clark would say because they had said in many cases this is the bad doll. this is the nice doll. and so remembering that they had said this is the bad doll, they now had to show the doll that looked like them. and it was particularly difficult for them. and some children -- some black children would do -- and some chose the white doll that looked like them because they couldn't embrace -- after having said this is bad, not nice, they couldn't embrace it. >> how often does the court rely on social science in making its

decision? this is some unusual thing this became part of their thinking? >> good question. justice grandice in practice had introduced social science into lawyers practice. so it was not the first time in brown v. board of education that they relied on social science. i think what made this different, though, was first over time and i'm sure it was true then, too, there was some question how reliable the doll studies were. it was really a simple kind of experiment. and one could raise questions about the methodology and all the things we would think about today in terms of reliability in social science. on the other hand, the extent of which the brown v. board opinion

relied upon the doll studies and the idea black children feel inferior because of segregation i think was profound. >> so we left the story with the death of the chief justice. now was it because of the chief justice's death they decided to rehear the case or was it already going to be reheard? >> they did decide to rehear it because frankfurter asked for a rehearing. so is it right he died after the rehearing or before? >> i'm not sure what role his death played in the rehearing. >> but the court chose not to -- >> they could have voted. frankfurter tried to take credit for everything, insisted he knew -- first of all, had special insight into the south.

and then he said if we just commissioned this paper about the understanding of desegregation, that will give us some time and maybe allow us some consensus. anyways, frankfurter dies. earl warren is appointed -- >> who is earl warren? >> he was republican candidate for vice president. he is a tall, blonde all-american moderate republican. this is someone who really made civil rights one of his callings in california and called for the people to be brought together. he does have one stain on his legacy, a very important stain. and that is supporting the japanese internment you talked about so vividly in the korematsu case. it wasn't until in his memories

in 1976 he finally expressed remorse for the japanese internment, and he wept. he'd reflected on he'd done. remember this was a time when the democratic party had been a party of segregation. for warren to be in favor of civil rights at the time was not unusual. he had wanted the first supreme court seat. dwight eisenhower had promised it to him. then vincent dies, and he said give me the seat. izen hower appoints him, later says it was the worst damn fool decision he ever made. >> so the second set of oral arguments were head. chief justice earl warren, hugo black, felix frankfurter, sherman minten, and stanley reed. what was the second round of

arguments and did they differ? >> the oral arguments the second time around were focused on these questions of original intent. and the trouble there, jeffrey has already explained what the problems were. the pdivision that was put befoe the naacp lawyers, they struggled a bit. and the problem was that the answer was not going to be found in the answers that had been put before the lawyers in the court. >> the question before the court in this case, does racial segregation of children in public schools deprive ninort children of equal protection of the laws under the 14th

amendment? so i would like you to tell a story because the chief justice decide it had to be unanimous. how did he get to uniimity. >> the arguments are heard, and the justices have their vote in private conference, and warren begins by saying this is an easy case. it's easy because segregation has the intent of dividing. and they begin to take a vote. and it's not entirely clear what the vote was. there are two major hold outs. robert jackson and stanley reid from kentucky who argued segregation. so jackson is in the hospital.

he'd a heart attack. and warren visits him. and jackson who tomiko says can't see the reason for brown, nevertheless is a new dealer who thinks that it's important and he's going to join. and then finally it comes down to stanley reid, the last segregationest and warren goes to visit reid. and he says stanley it's going to look bad for you. for the good of the country you've got to make it unanimous. and warren agrees to make it unanimous. warren then reeds the decision to a spellbound courtroom. he says the question is does segregation violate the 14th amendment? we believe it does. and thurgood marshall looks up at stanley reid, and you stanley

reid you voted? and he looks down and said yes, i voted for this. a real testament to warren's st. statesmanship he was able to create unimty. >> and let me read a little bit of the statement. we conclude in the field of public education the doctrine of separate but equal has no place. separate education facilities are inharptly unequal. therefore we hold the plaintiffs and others similarity situated by reason of the compliance kplaint of deprived of the equal protection of the laws guaranteed by the 14th amendment. i'm going to let that stand and take some more calls because our time is evaporating quickly. let's go to christopher in new york. hi, christopher, you're on. >> yes, so a majority of white people were against segregation.

and i actually -- i saw your preview of the baby situation. the white baby looks like an angel and the black baby looks like an ape and death to the -- >> all right, we're going to move on from here. hi, dennis, you're on. on to ron watching us in s chicago. >> i want to real quickly say, wow. this program is so vital to our society. this is so vital to the survival of america. my question is what do we have to do, what do we need to do to keep this going? this discussion has to keep going. are neighborhoods are being robbed by history, and you guys are doing a phenomenal job.

whether people agree with you or disagree with you, we've got to keep it going. i love you, and just want to say thank you very much and god bless you. >> that's very kind of you. appreciate the good comments there. before we leave this, i did want to get one other thing on the record. which is you mentioned earlier the cold war. and in fact at least in the first case the government filed an amika spree that made the case to the united states about the reputation being damaged by segregation. so i wanted to ask you both because often we hear reports saying it's insulated from public opinion. yet this is one of several cases in this landmark series where wars were going on or in this case the cold war, where there seems to be an impact about the politics or policy impacts of what they're reviewing. so help people understand how the court functions, and what it

says is an insulated study of the law environment. but we keep seeing instances where politics does impact the decision. >>, you know, it's so important to focus on this. we think of brown an an unpopular decision that was imposing a rule of equality where most of the time were in favor of segregation. but in fact 50% of the country supported desegregation at the time brown came down for the reasons we were discussing. it was an international embarrassment after world war ii, something worthy of defeated nazis to have this kind of injustice of segregation and inferiority. and opinion was shifting quickly. really the fact the senate was controlled by a group of governors that refused to bring the bill to the floor and the fact that both the truman and

eisenhower -- his administration does support striking down desegregation. for all these reasons the court is aware of what the congress is thwarted from doing, knows about jacky robinson. and in that sense far from thwarting the rule of the court, surprisingly supports it. >> so to the micro and then to the macro we're going to listen to linda brown's family's reaction as they heard the decision. >> time stood still until the afternoon of may 1954 when i was at school, my father at work and my mother at home doing the

family ironing and listening to the radio. at 12:52 p.m. the announcement came. the court's decision on ending segregation was unanimous. that evening in our home was much rejoicing. i remember seeing tears of joy in the eyes of my father as he embraced this repeating thanks be unto god. >> and so we move from linda brown to societal changes. what was the reaction? >> thurgood marshall was greeted as a civil rights icon. there were many african-americans excited about the decision, very hopeful about the decision. the court was viewed over time as a -- a hero, a protector of minorities because of the decision. the country to a lot of people

seemed to be moving in the right direction. on the other hand, there were those who thought that the decision was outrageous, that it was the mother of judicial activism, that the court had not followed the law, that it hadn't been faithful to its imperatives as an institution, that the court had put itself in a position of being a legislator. so there was -- there was a lot of push back against brown v. board of education. >> some of that push back occurred in the congress of the united states. and i'd like to have you talk a little bit about the massive resistance movement. we've got two statements, one from a member of the house and one from a member of the senate who were involved in this. first was from josh bell williams in 1954. and he said among other things the time is at hand with when the states must reassert their

constitutional rights. they must declare the black monday decision -- the brown decision -- to be illegal and invalid and be within no territorial limits of their jurisdiction. and then the one who organized the massive resistance movement said the unanimous decision of the court to abolish segregation and public education is not only sweeping but will bring implications and dangers of the greatest consequence. it is the most serious blow that has been struck in the rights of states violating their authority and welfare. they authored what was called the southern manifesto. and it was signed by 19 senators and more than 80 representatives, all of them southern democrats in congress. what's the effect of this? >> the effect of that which you summarized so viv utdly, can you imagine calling it black monday and signing this southern

manifesto was precisely to encourage southern states to resist -- and the resistance was powerful. in 1959 prince edward county virginia closed its entire school system rather than obey the order to integrate. and it was closed for five years. warren county schools were all closed by state officials. and finally the resistance culminated in this next dramatic case. the resistance to allowing integration is so great that president eisenhower has to call in the national guard. >> going to take some calls. this is dennis in palestine,

texas. you're on the air. >> hi, and just want to say that jeffrey rosen is correct that -- is fantastic work. most of my childhood and even into college -- i wanted to ask about a law clerk or justice jackson by the name of william rendquist who at his confirmation hearing in 1971 the issue came up he had in fact written a dissent for justice jackson in the brown case when it came before the warren court. and he said in '71 they were just covering their bets so to speak, that he did not really

feel that way. and i just wonder if either of your guests have checked to see the voracity of his comments some 20 years laerlt? >> you summarized it really well. it was an important controversy. the memo was quite vivid in which chief justice rendquist and the law clerk said the fact is southerners don't like black people and they're never going to admit them. as you say chief justice rendquist throughout his career said he'd been writing in jackson's voice. all we know is that justice jackson's secretary disputed rendquist's account and said he had never asked for competing opinions to be written in his voice. and he was expressing his own

views. >> maurice is in memphis. hi, maurice you're on. >> good evening, to all of you. the 14th amendment does not apply to the federal government. i think we feel there are certain fundamental protection they appear twice -- the equal protection of the law is a more explicit safeguard of prohibited unfairness than due process of law. buy, not uncertain that iplies the two are interchangeable appraises. how do you feel about the assertion that the concepts of equal protection and due process are not neutrally exclusive the. >> well, i think you're referring to the controversy of bowlen v. sharp where the court

reads an equal protection component into the fifth amendment. there's a lot of discussion about how exactly the court does this, how the court explains it. i don't think the court goes very far towards an explanation. the fact of the matter is there was not going to be any way that you would get one holding in the four cases involving the states and a differently holding in the case involving the district of columbia. therefore, we get this equal protection component read into the due process clause. as to how appropriate that was, i tend to think that there is an understanding of due process that makes it a very robust concept. it's the due process clause the basis the court ends up using

for fundamental rights analysis. so i would say that, you know, they're not the same. but there's an appropriateness to reading that component, the equal protection component into the fifth amendment under those circumstances. >> tomiko is absolutely right. -- believed that the exemption from class legislation or unfrpdly legislation was in itself -- that argument is no longer available. but some of the framers of the 14th amendment, it might have been a less closed case. >> and a quick comment to mr. putnam on twitter who said what did the brown v. board argument

do for plessy? >> it -- >> next is chuck. >> when you say brown reversed the plessy discussion, isn't it true railroads continued to ignore the brown decision and continued segregating passenger rail cars until the civil rights act? >> well, it's not just railroads. it's all kinds of public institutions that don't exactly comply with brown. so it takes a very long time as you say for brown to actually be implemented. as jeffrey pointed out there's a

cooper v. aaron decision where the court speaks to the issue of school desegregation. the problem is that unless there is in the early years after brown, if there's not these dramatic instances of resistance to the decision, then the school districts are able to proceed in whatever way they see fit for a very long time. it's not until the midreally very late 1960s after the civil rights act that brown is implemented in any substantial way. >> our next piece of interview is with thurgood marshall. and this was taped on april 16, 1967.

>> i do not think that president eisenhower has done anywhere near what he could have done. i wonder if it's too late. personally, i don't think it's too late. the president at least by now have gotten on a television network or radio and spoken as the chief executive of this government to the good people of the south urging them to support the decision of the supreme court as the law of the land whether they believed it or not. and to use the full influence of his position as president to bring about a peaceful solution of this problem. i think he was obliged to do that, and i think that his failure to do so does not help us at all, especially when we realize that as a result of the failure of the good forces to take over, we've allowed these other forces like the white

citizens counsels and the klan to threaten intimidate people. our moral good leadership should come from the top executive. it's his responsibility. >> five months after that interview,izen hower sent federal troops to enforce the decision in little rock, arkansas. so walk us through presidentizen hower hower's part in this the. >> you have the court order to integrate central high school. you have students who are being turned away by mobs. you have -- standing at the school door saying he's never going to allow the students to come in. and you have presidentiz eise

eisenhower's decision to send troops in. and then each of the justices signs the decision in ink on the decision itself. this is never done before. all of the justesses to prove their unimty, sign it. it's a sign they're scared to death he's not going to follow through. this court is supreme in its interpretation of the constitution seeming to suggest the president and congress have no ferrell role. basically these were nine men literally don't know what the president will do. the fact he did send the troops and the fact his crumbling about warren did say i was to enforce the law, helped mitigate

eisenhower's history. >> i'd like to show one more video and come back to you and talk about this. this is earl warren, and he's talking about his frustration to the resistance. >> in some parts of the country, yes. one couldn't help being impatient when it was figured that the orders of the court founded and where illegal things were changed in form but not in substance and carried on.

when the american people as a whole recognize that we have in the past been wrong in depriving certain minorities of their constitutional rights, and when we make the decision to see that they will in the future have these rights, then i think that we're on the way to solving most of our domestic problems. >> well, a couple of things to say. first of all, i agree that there is this revisionist scholar on eisenhower that somewhat puts a different spin on his views. however, there is cooper v. aaron where he sent in the guard. those are important. at the same time, i think the problem for eisenhower as it relates to school desegregation,

there's a sense he doesn't -- first of all, he's very supportive of state rights, which is what thurgood marshall was talking about. and there's a sense he's not really supportive of the principle of desegregation as a personal matter. so there's a story how at a white house dinner he was overheard saying that the people of the south who were resistant were not bad people. they simply were concerned about the little white girls sitting over grown black boys in the classroom. so i do think there was not that personal commitment to brown v. board of education. and he in that sense was on the wrong side of history. earl warren, on the other hand, also a politician. and not a man who certainly when he was appointed, was respected

as a great legal thinker. his skills were political -- understood that having the office of the presidency behind the supreme court, having congress, having all three branches acting in the same way as we had after 1964 was really the only way that the decision would be enforced. >> let me take a call from ken. you're on. >> hi, thank you. i have two questions. number one, it's my understanding that despite what you said earlier that eisenhower said that appointing warren to the supreme court was one of his worst decisions. it's my understanding that at the time that he appointed warren he intentionally appointed him because of this case, and he wanted to have that kind of a decision. and i'd like to hear your comments on that. and secondly, it's also my

understanding when eisenhower sent troops into arkansas it was also the first time that the president, that the executive has stood behind the supreme court especially since president jackson in 1828. and i'd like to hear your comments. >> well, i love the fact you bring out jackson. in fact, he did famously say in the cherokee indians case that -- i have not heard that eisenhower appointed warren because hooechted a positive decision in brown. the fact he resisted an appointment at all, seems to call that in question. despite the resition as a whole,

he say on the wrong side here. if any viewers have insight for that, tweet it. but i haven't heard that particular story. >> so i first want to start with its legal legacy. we've got four citations of brown. in '64 reynolds v. sims. san antonio school district v. rodriguez in 1973. and planned parenthood v. casey in 1992. so what has it left from a legal per spe perspective? >> that is a good question. the most important legal point of brown is it goes back it

established the idea that the supreme court can be interventionalist to protect legal rights in the most profound way. it was cited in various cases where the issue wasn't schools on that point. but i will also say that brown has a mixed legacy in part because it can be interpreted in so many ways. when you say san antonio v. rodriguez, there is a discussion of that discussion by justice powell who rights san antonio, which sacase that holds welt is a -- that is inconsistent. when it came to the question of what it meant for education itself, brown was not per situative authority on that

point. and there's other examples i could point to. >> talking about the integration of schools on twitter, so far you have not mentioned the hedge. so how did this come into play? so how instructive was support in actual rollout of desegregation. >> so, thank you, bob, for noting that. it's really important. he said, once again i know from english common law and principles of equity when you're not sure a particular decree will be immediately enforced, you can give the parties a little bit of discretion and tell them they don't have to do it immediately. and this was pretty resistant by hugo black. black said if you give the south any room, it's going to be worse. but frankfurter put in that language. and there was lots of other hedges in that decision in

brown, too. well, giving weight to public and privatecursions, should make a prompt and reasonable start, the problems related to administration. but disagreement, the court did say the vitality of the constitutional principles can't be allowed to yield simply because of the disagreement with them. as tomiko, a point she made, it wasn't until the passage of the civil rights act of 1964 was but the guidelines just a few years later threatened to with hold funds from schools that didn't desegregate, only then did full desegregation occur. >> so the court continued to struggle with affirmative action cases and another one scheduled

for this term in the court. so what it really been the societal legacy of brown v. board of education? >> another good question. i would point to parents involved whether school districts could voluntarily desegregate. and there the court held -- it struck down the policies that were at issue. which in louisville had been adopted, a desegregation policy adopted, after the school system was no longer under court order. by large consensus of the community, it wanted to i continue with its integration program in schools. it was considered a model community for integration. and the court impeded that saying that the principles established in the affirmative

action cases establishing diversity really don't apply in the k-12 context. and also the court is going to hear the fisher case again, will weigh on theimator, and it doesn't look good to proponements of affirmative action. the nature of the conversation the court is having really goes back to that word, some would say judicial supremacy. court in the affirmative action context is saying it needs to be satisfied that there aren't race neutral alternatives to these race conscious policies. and there are university officials, education officials who would argue that they need to be in that position of exercising discretion about composing their student bodies. >> here's a little bit of chief justice john roberts and the

parent involved decision. it was heard in 2007. some of what he wrote is this. before brown school children were told where they could and could not go to school based on the color of their skin. the school districts in these cases have not carried the burden of demonstrating the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. >> there is a huge debate on the supreme court right now about the meaning of brown. is it a ban on racial -- does it demand color-blindness or just prohibit caste defying laws? the decision itself can be found in the brown opinion and brown

two. this continues to this day. all i can say with c-span, the national constitution center is going to be hosting debates including a great one on the fisher case. the fact that even years after brown, more than 60 years after brown, we still haven't dissolved what the meaning is. >> thurgood marshal was the architect and went onto be appointed to the supreme court as the first african-american justice. here's justice marshall in 1988

accepting an award, and he talked a bit about the state of relations post-brown. >> i don't care about the constitution alone or the declaration of independence or all of the books together. it's not that important. what is important is a goal toward which you're moving. a goal that is a basis for true democracy, which is over and above the law. and it's something that won't happen. but you must pray for it and work for it. and that goal is if a child, a negro child is born to a black mother in a state like mississippi or any other state

like that, born to the dumbest, poorest sharecropper just by merely drawing its first breath in the democracy and without anymore is born with exact same rights as a similar child born to a white parent or the wealthiest person in the united states. no, it's not true. of course it's not true. it never will be true. but i challenge anybody to take a position that is not the goal that we should be shooting for and stop talking about how far we've come and start talking about how close we are. >> and with that thought we have

about a minute left for your comments on the brown v. board decision of 1954 and really what its significance has been on american society. >> well, i think it is a decision that was important in constitutional law. it's generally considered the most important constitutional law case of the 20th century. and that's righty see. and it's and paradox because of all the things we talked about. brown was not considered to be a law case that was actually based in law. there are many questions about the method the koucourt uses to reach its decision. but over time it is accept said as the right principle. the court did the right thing. that's important. it sets a high bar, high aspirations for us. and as justice marshall said, so

many times we're still working towards its goals. >> serfson voted all men are created equal yet he owned slaves. he took lincoln's new birth of getsi gettysburg, it took a century after that for brown to at least begin the promise of deconstruction and amendments to reality. >> our thank tuesday tomiko brown and jeffrey rosen in this the stallment of brown v. board of education. and thanks to you for being part of our audience.