marshall sat. american history tv is in primetime all week here on cspan3, with our original series landmark cases. tonight, we'll look at mapp versus ohio. found evidence cannot be used in criminal prosecutions if it's collected in violation of fourth amendment protections against unreasonable search and seizure. that's tonight on c-span3 at 8:00 p.m. eastern. landmark cases returns live next february on c-span. join us to hear more stories of the people who sparked ground breaking cases and the justices and lawyers who were key to the supreme court's review. all persons having business before the honorable the supreme

court of the united states give their attention. >> landmark cases, c-span's special history series produced in cooperation with the national constitution center, exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> earnest petitioner versus arizona. >> we hear arguments number 18 roe 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 have helped stick together because they believe in a rule of law. >> good evening and welcome to "landmark cases."

we're about two-thirds of the way through our 12-week series looking at historic supreme court decisions. tonight's a 1954 case of school segregation, brown v. board of education. and we're going to begin this evening by listening to >> my memory of brown began in the fall of 1950. in the quiet kansas tonight of topeka, where a mild-manner ed black man took his plump 7-year-old daughter by the hand and walked briskly four blocks from their home to the all white school and tried, without success, to enroll his child. black parents in topeka felt 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 some 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 our two guests, tomiko brown-nagin is a

professor at harvard law school. she's an author. and jeffrey nagin, has been our partner for the entire series, which we thank you for and is the author of numerous books on the supreme court, including "the supreme court, the personalities and rivalries that defined america." nice to have you finally at the table. >> congratulations on this great series, your team has done such a great job and it's really a great thrill. >> 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 plessey, the court faced the disdain of the decision and fulfilled the reconstruction 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 ing their race is stigmatizing and key degrading. the fact that it took almost 100 years to recognize what was obvious to anyone in the south,

just as harlan said, everyone knows the purpose of segregation was to degrade african-americans. and the fact it took so long for the court and the country to recognize that, is what made brown such a landmark in our society. >> 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 equal protection clause, because that only binds the states. instead it had to use the fifth amendment to the constitution. which prevents congress from robbing any person any due process of law.

the court read into that clause a equal protection component, 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 the plaintiffs. here they are, the only win for the naacp was a case of gephardt versus belden 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 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 coincidence that linda brown, so movingly spoke, 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 plessey, where he said, that if there is a harm of separation, of segregation, it's only because blacks are putting that construction on it. in brown, the court rightly recognized that really the

problem with segregation in schools, anti-aggregation generally, the court went on to stipulate, it was a stigma. it was a sign that blacks were considered inferior. >> one of the things that has made this whole series work for us is your participation and there are several ways that you can do that. we'll go to calls in about another 20 minutes. here are the phone numbers. 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 plessey versus ferguson, 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 imputation of inferiority is the product 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 be consistent. he's the one who in 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 spectacular dissent in plessey versus furgeson, 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. he says in respect to civil rights, the constitution neither knows nor toll rates classes among citizens, the constitution is color blind there is no cast here. but there's an odd preface 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. this as an uncomfortable tone for us. >> 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. you could read the preface to that wonderful part of his opinion where he's saying the constitution is color-blind. as in a way saying that because of social conditions, it's not necessary really to stipulate in the law to have our constitution

besmirched 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. we'll talk about this later in the shoi, the huge question, 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 caste system? and this is a big debate over affirmative action. what the equal protection clause means. the whole history. >> 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. so did plessey versus ferguson, which legalized separate but equal, a transportation case that changed society, did it 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 reconstruction would not 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 ascribe 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 effect of the war and the contributions that african-americans made during the 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 juxtaposition of the soldiers having fought hitler and his creed, with their treatment here, in this country, where they felt as if they were experiencing the same kind of ideology in this country, was enough to make the soldiers vital in the struggle for civil rights. other things that were happening were that african-americans had migrated 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 stature, and they also were beginning more so than ever to think in terms of resisting these jim crow laws. >> so thurgood marshall, 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 segregation in public schools is deeply entrenched, a majority of states have it. he wants to start smaller first by attacking segregation in law school admissions and graduate school admissions. and then after having won those victories, attacking schools. he doesn't initially argue the plessey versus ferguson should be overturned. instead he attacks unequal facilities in the texas case, swaet versus painter. where he says you're not even providing education to african-americans. in this separate law school you set up as patently unequal. in the mclaughlin, a graduate student is 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 over whether plessey should be overturned and the segregation in 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 orange states segregation locally determined. the blue states, no segregation laws and the green states in the northeast and the midwest, segregation 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

of law in determining the condition of the negro. he was emancipated by law and then disenfranchised 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 gradual, 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. roger baldwin at the aclu were skeptical 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 interracial movement. those were other people who thought the courts were only as good as the personnel on the court and it would be expected 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 even if thurgood marshall and the legal defense fund were able to prevail, discrimination could continue, notwithstanding

the change 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 skeptical that individuals would come through in the way that marshall 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 plessey? brown was limited to education, did scotus ever say brown was overruling it? >> 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 the plessey case be overturned and brown 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 plessey, inconsistent with what we're saying, then we pull back from the principle of plessey. so it wasn't the kind of robust language overruling that you might see in some other cases. and i think it 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 plessey, 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 findings in the trial court, cited the doll studies of kenneth clark, that 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 clearer overturning of plessey, might have made it harder to resist brown and would have made it harder for critics of that

footnote today, including justice clarence thomas, who said the court was wrong to rely on sociological evidence, the court would preferred the purpose of segregation is to degrade and therefore plessey is 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 thoroughly. i want to congratulate you. 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 obviously it didn't have an equal protection clause. so in the bowling versus sharp

case, could the bowling versus sharp case been decided using a religious 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 it's the best attempt to create an original defense of brown. here's what we know, there were those in congress, in 1868, and jeong bingham was among them, who thought basic civil rights had to be amongst them all. at the same time felix frankfurtherer commissioned his law clerk alexander bickel wrote a long study -- and it's clear people in 1868, 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 covereds an originalist matter, you have to move 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 has done a great job in explaining why it is consistent with original understanding. >> 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 hundreds of years of segregation, and adverse economic impact on black families, that they had in the past, deserve some type of reparations through 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, ladies and gentlemen, 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 intolerable to people. i fought in a war where we were driven out that colonial mentality caste racism. 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 last

century. whether it was armed revolution or nonarmed revolution. people are tired of that caste racism. they're tired of it everywhere 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 chasm in many instances between what i call before law on the books, and our aspirations as a country, and as a people. and everyday 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 this county in virginia. what's interesting is that both sides, the plaintiffs and defendants, used these pictures, stating that they've supported their positions. let's watch. >> these photographs are exhibits in the court case dorothy davis versus school board of prince edward 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 we have several buildings that compose a single school, some of which are brick, some of which are tar paper, and it's in a rural setting. now we move inside to the classrooms. here we have a white school in prince he had where the county, the students seem comfortable. while we take a look at african-american school, children are wearing coats, there's a very large heater thus showing us how cold it was in these rooms. moving on to other parts of the buildings. here we have a home-ec class in a white school. in a white school. notice much of the furniture and 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 equal. >> 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 a, he was a in topeka, he was a wilder in the shops of the santa fe railroad. >> 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 was approached by the naacp. he didn't seek them out. one reason that the naacp and thurgood marshall chose the brown case and not the other cases, was to avoid the dispute that the sides weren't equal. that's why he picked a school where there was no allegation of separate but adequately facilities. equal 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 that she had to walk six blocks to a school bus to take a ride to a segregated elementary school, when there was another school, sumner

elementary, which she could have walked to. to her and her father was an outrage and didn't rely on whether the facilities were equal or not. it was filed in 1951. >> the arguments before the court, naacp was represented by robert carter and jack greenberg. arguing for topeka school board, lester goodell. and it was a three-judge panel. and judge walter huxman wrote the opinion. can you tell us anything about that opinion we should know about for this story? >> the important aspect of that opinion i would say is that although the judges rejected the application of sweats and -- mclaren, which were two cases where the naacp had prevailed, it did include a finding of facts indicating that segregation of schools was harmful, which was incredible. for the naacp it's precisely the

issue in a was so controversial before the supreme court. so it was a decision that on the merits was adverse to naacp but in terms of that little finding of fact, there's a little nugget in there that was very helpful. >> so jeff rosen could you explain how these cases made it to the supreme court. were the justices looking for a case to decide this? what was the process where these five cases were consolidated and the court 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 truman and eisenhower administrations had filed briefs. fip hillman wrote a brief that he considered the most important of his entire career, where he went through the court's

previous press debts and showed how they compelled the result in brown so i think to a certain extent, the court felt that 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 by two different courts. and we'll talk about the drama that caused that court to be different the second time aren't. around. gary is in tampa, florida. hi you're on the air welcome to our program. >> caller: thank you. while i'm aware there were impeach earl warren signs on southern highways, what i'm curious about was brown versus board of education, an issue saying the 1956 presidential 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 salient 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 where warren was a focus of, he was a person from which one wanted a pound of flesh, right? he was the representation of brown and the court and 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. >> caller: i want to say quickly i hope that c-span will expand on their 12 historic cases and do another 12 historic cases here in a little bit. >> let's do it. >> caller: my question was did justice hugo black, who had been a member of the kkk, and also the majority opinion in koramatsu, 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 klan, there's an outcry.

he gives a radio address, which can out on youtube, he dy join the klan, i resigned. 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 some pathway opinions recognizing racial 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 klan membership. he's also the only southerner who says 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. because the court cannot solve this. so he really is bringing his political wisdom to bear.

there's one final story that's interesting, roger downford was a clerk for hugo black. and at one point he asked justice black, why did you join the klan? and black paused for a moment and said, son, if you were running for senate in alabama in the 1920s, would you join the klan, too. ing 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 described as a truman crony. and he was joined on the the court by justice hugo black, harold burton, tom clark, william o'douglas, stanley reed and sherman minton.

so last week we heard vinson did not do an effective job by bringing coalitions together 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 vinson, 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 plessey. plessey was a precedent that was on the books for a very long time. and justice jackson and justice frankfurter were concerned about how to justify a decision to overturn plessey. >> can i just pick up on that? tomiko so well describes that. and they become manifest in the first conference over brown. so as tomiko says, the colleagues don't respect vinson. vinson had 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, minton and burton. three votes to possibly uphold, v.i.n.son from kentucky, stanley reed from kentucky and tom clark from texas. two undecided frank further and jackson. who are in favor of judicial restraint, they are new deal democrats, but 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, vinson 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. not a nice man, frankfurter. and it comes in and you probably want to wait to hear what happens.

>> i do. first i want to get the attorneys on the docket for our viewers. the defendant attorneys included john davis, who has been in now three of our landmark cases. who was john davis and why was he at the helm in so many of these important 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. although i do think the constitution can occasionally adapt as the commerce clause shows. 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, plessey is 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 invested in the case, that 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. in maintaining segregation. >> 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. george hayes and james naybrit. i want to show another video because you talked about the impact of this social experiment case. the doll case. so we have a video about kenneth and mamie 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 kenneth and mamie clark used in the doll studies. the doll test were a series of studies that mamie clark and kenneth clark did to try to determine racial awareness in young children. with the implication being, in a segregated society, if children are aware of race and the differences in race and the differences in how different 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 black and white dolls and they would ask the children, show me that 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 as the doll, the nice doll was the white doll. the doll that was the best was the white doll. when he 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? was this an unusual thing that this became part of their chinking? >> that's a good question. you know justice brandeis in practice had introduced the

reliance on social science into lawyers' practice. and so it was not the first time in brown versus board of education that the court relied on the social science. i think, though, that what made this different was that first over time and i'm sure it was true then, too, there was some question as to how reliable the doll studies were. it really was sort of a simple kind of experiment. and one could raise questions about the methodology in all of the things that we would think about today. in terms of reliability of social science. so although it wasn't altogether new. but on the other hand the extent to which the brown opinion ends up relying on the doll studies and on the idea that 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' death that they decided to rehear the case? or was that already going to be reheard? >> that is an important question, i don't want to get it wrong. they did decide to rehear it because frankfurter asked for a rehearing. it was died that after the rehearing had been granted or before? >> i'm not sure about that detail. whether he, what role his death played in the rehearing. >> but the court couldn't come to a decision after hearing the first round of oral arguments? >> they chose not to. and frankfurter. they could have voted, frankfurter who tried to take credit for everything, he said he had special insight into students at the south because he taught students at harvard law school. he said if we commission this paper about the original understanding of desegregation that will give us sometime and maybe allow a consensus to

happen. so vinson dies, frankfurter says there's a god and then earl warren is appointed by dwight eisenhower. >> who is earl warren? he's the former governor of california, the republican candidate for vice president in 1948 when tom dewy ran. and he's 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 that you talked about so vividly in koramatsu case. and as attorney general of california, he had supported that. it wasn't until the end of his life in his memoirs in 176, he finally expressed remorse for the japanese internment and he wept when he reflected on what he had done. he was nevertheless a very, very

moderate, remember this with is a time when the democratic peanparty had been the party of desegregation. so for earl warren to be in favor of civil rights at the time was not unusual. he had won the one the first supreme court seats, he had wanted it. and vinson dies and warren said give me the seat. and eisenhower said you said the first seat, this is the first seat. so he held eisenhower to the deal. eisenhower says it was the worst damn fool decision he ever made. >> so the second set of oral arguments were heard december 7-9, 1953. the court again i'll read the justices, chief justices, earl warren, black, clark, frankfurter, jackson, minton and reed. what was the length of oral arguments the second time around? and did they differ very much? >> the oral arguments the second time around were focused on these questions about original

intent. and the trouble there, jeffrey has already explained what the problems were. the framers of the 14th amendment were not social integrationists, in the way we think of today. so the question that was put before lawyers, the naacp lawyers struggled a bit. and the problem was that the answer was not going to be found in the questions that had been put before the lawyers and the court. >> the seminal question before the court in this case does racial segregation of children in public schools deprive minority children of equal protection of the laws under the 14th amendment? i would like to have you tell the story. because the chief justice decided that for this decision to work, it had to be unanimous. how did they get to unanimity. >> this is a riveting decision.

and a riveting story of how they got there. one of the great examples of judicial statesmanship in american constitutional history. so the arguments are heard. as tomiko described. and the justices have their vote in a private conference. and warren begins by saying this is an easy case. this is an easy case, it's obvious that segregation has the intent and purpose and effect of degrading african-americans. and they take a vote. and it's not entirely clear what the first vote was, but it's at least 6-3, maybe 7-2. and there are two major holdouts. robert jackson, the great advocate of judicial restraint, as tomiko said and stanley reed from kentucky, an ardent segregationist. so jackson is in the hospital. he's had a heart attack. and warren visits him and basically says it's a very important for the court that this be unanimous. and jackson can't see in the original understanding or the text or the precedent, or

tradition, a 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 reed, the last segregationist. and warren goes to visit reed in his chambers and says stanley, it's going to look bad for the court and bad for you, if this is an 8-1 decision with the one dissenter being a segregationist from the south. for the good of the court and the country you've got to make it unanimous. and reed who is an institutionalist agrees to make it unanimous. warren then reads the decision to a spellbound courtroom. he says the question is does segregation violate the 14th amendment? we believe it does. thurgood marshall looks up at stanley reed, he cannot believe that this ardent segregationist voted to strike down segregation and he looks up and said stanley reed, you voted? and stanley reed nods, an electric moment and a real testament to warren's

statesmanship that he was able to create unanimity. >> let me read a little bit of chief justice warren who wrote the opinion for the court in what he had to say. we conclude that in the field of public education, the doctrine of separate but equal has no place. separate educational facilities are inherently unequal. therefore, we hold that the plaintiff and others similarly situated for whom the actions have been brought are, by reason of the segregation complained 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 watching in brooklyn, new york. you're on. >> caller: so majority of white people were against segregation. and i actually, i saw, i saw your preview of the baby situation. the white baby looks like an

angel, and the black baby looks like an epa. >> dennis in palestine, texas you're on. go ahead. you're on. last time for dennis, we're going to move. on to ron watching us in east chicago, indiana. good evening, ron. >> caller: i want to real quickly say wow, this program and this discussion and this show is so vital for our survival. kudos and congratulations to your program which is so vital for the survival of america. my question is what do we need to do to keep this going? this discussion has to keep going. you know, our neighborhoods have been robbed of our history and you guys are doing a phenomenal job. whether people agree with you, disagree with you, we've got to keep it going. especially during the presidential election. i love you, i want to keep it going. thank you very much. god bless you, bye.

>> that's very kind of you, appreciate the good comments there. before we leave, i want to get one other thing on the record. which you mentioned earlier, the cold war. and in fact in at least in the first case, the government filed an amicus brief, that made reference to the united states' reputation being damaged by segregation. often we hear the court 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 is seems to be a determined impact on the outcome by the justices' realization about the politics or policy impact 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. what we keep seeing instances where politics does impact the decision. >> you know it's so important, to focus on this.

we think of brown as a countermajority decision, an unpopular decision imposing a rule of equality at the time when most of the country was in favor of segregation. because of the map you showed earlier. because it was so pervasive. but in fact, 54% of the country supported desegregation at the time brown came down for the reasons that we've been discussing. it was an international embarrassment. after world war ii, it was derided as a kind of something worthy of the defeated nazis to have this kind of justice of segregation and inferiority. and opinion was shifting quickly. it was really the fact that the senate was controlled by a group of southerners who refused to bring desegregation bills to the floor, that in some sense was thwarting public opinion and the fact that both the truman and the eisenhower administration, eisenhower is no big fan of quick desegregation. he said warren was a big mistake. but his administration does

support striking down desegregation. for all these reasons, the court is aware of what the congress is doing. it's aware of what the executive is trying to do it knows about jackie robinson. and in that sense, brown surprisingly, supports it. >> so to the micro, and then to the macro. we'll listen next to linda brown, talking about her family's reaction when they heard the court's decision. let's watch. >> time stood still as the highest court of the land pondered over brown versus board of education. until an afternoon in may of 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 repeat unto god. >> and so we move from linda brown to societal changes. what was the reaction in the country after the brown decision? >> well, thurgood marshall was greeted as mr. civil rights, as a hero, as an icon and there were many african-americans who were very excited about the decision and very hopeful about the decision. the court was viewed over time, as a protector because of the decision. the country, a lot of people seem, and 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 as imperatives to the institution, that the court had put itself in the position of being a legislature. so there was a lot of pushback against brown versus board of education. >> some of that pushback occurred in the congress of the united states, and i would 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 is john bell williams who made a house floor speech on may 17, 1954, and he said among other things, the time is at hand when the states must reassert their constitutional rights or suffer their own destruction. if states are to preserve their sovereignties if they are to preserve the constitution, they must declare the black monday decision to be illegal and

invalid and of no force and effect within the territorial limits of their respective jurisdictions. >> senator harry byrd of virginia who organized the massive resistance movement said the u nan mouse decision of the supreme court to abolish segregation is not only sweeping, excuse me, but will bring implications and dangers of the greatest consequence. it is the most serious blow that has yet been, and vitally affecting their authority and welfare? they authored the southern manifesto and signed by 19 senators and more than 80 raptive, all of them southern democrats in congress. what was the effect of that? >> can you imagine as you said, calling it black monday and then signing the southern manifesto was precisely to encourage southern states to resist in the ways that the manifesto demanded. and the resistance as tamiko suggested was powerful.

people across the south set up private academies for their kids. in 1959 they closed the entire school system rather than integrate any it was closed for five years. the public schools in south carolina were closed for a great period of time. norfolk, charlottesville, and warren county, schools were all closed by state officials and then finally the resistance culminated in this next dramatic case. central high school, little rock, arkansas, and the resistance to allowing integration is so great that president eisenhower was to call in the national guard and we can talk about that case, if you like. >> let me take some calls. this is dennis in palestine, texas. hi, dennis. >> i want to say jeffrey rosen is correct that richard

krueger's simple justice is fantastic work and this southern boy had only heard one side of the argument for most of my childhood and even into college. i wanted to ask about a law clerk for justice jackson by the name of william rehnquist who at his hearing in 1971 that he had written a dissent in the brown case when it came that they were covering their buts, so to speak. they did not feel that way, and if they had checked to see the veracity of justice rehnquist's

comments and his confirmation some 20 years later? >> you summarize it very well. it was an important. the law clerk said basically the fact is black southerners don't like black people and will never admit them and i believe that placy versus ferguson was good law. as you say, chief justice rehnquist maintained he'd been writing in jackson's voice that jackson had expressed to express his own thoughts because jackson was undecided. all we know is justice jackson's secretary disputed rehnquist's account and said that jackson had never asked for competing opinions to be written in his voice, and according to her, rehnquist was expressing his own views. i think that's the most direct evidence that we have on the point. >> 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 and protectionses are so important that they appear twice so that the states in the 14th amendment each have a due process clause. the equal protection of the law is a safeguard prohibited unfairness than due process of law. what i would not assert that that implies that the two are always interchangeable of phrases. how do you feel about the assertion that the concepts of equal protection and due process are not mutually exclusive? well, i think you're referring to the controversy of bowling versus sharp where the court reads an equal component to the fifth amendment and there's a lot of discussion about exactly how 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 that there is not going to be any way that you would get one holding in the four cases involving the states and a different holding in the case involving the district of columbia. therefore we get the equal component read to the due process clause as to how appropriate that was, i -- i tend to think that there is an understanding of due process that makes it a very robust concept, and it's the due process clause that's the basis that the court ends up using for fundamental rights analysis, and so i would say that you know,

there's not the same and there's an appropriateness to reading about that component, and the equal protection component under those circumstances. >> if i can just add they believed that the exemption from class legislation or unfriendly legislation based on race was itself a priviledge and immunity of citizenship and the court read the privileges and immuneities clause out of the 14th amendment as you know if you watched the episode, and that is no longer available, but for some of the framers of the 14th amendment it might have been a less close case. >> what did the brown v. board decision do to the legacy of judge marshall harlan notable for his pressing dissent? >> it vindicated him as one of the great prophets of the 19th century. >> next is chuck palmyra,

pennsylvania. hi, chuck. go ahead. yes, we can hear you. go ahead, please. >> hello? hello? hello? >> although you say that brown reversed the blessy decision, isn't it true that railroads continue to ignore the brown decision and continue segregating passenger rail cars. it's public institutions that don't exactly apply with brown forth with. so it takes a very long time, as you say for brown to actually be implemented and there's the cooper versus 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 that if there's not these dramaticic stances 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 mid, late 1960s that brown is implemented in any substantial way. >> our next piece of video is thurgood marshal, and he gave an interview to mike wallace, a famous of cbs on eisenhower, president eisenhower and what he thought of the president's decision and response, rather, to the desegregation of schools. this was taped on april 16, 1957. let's watch. >> i do not think that president eisenhower has done anywhere near what he could have done. i wonder if it's too late and i

don't think it's too late. the president should have shortly after the decision, at least by now have gotten on a television network or radio and spoken as a chief executive of this government to the good people of the south, urging them to support the decision of the supreme court, and it's the law of the land whether they believed in it or not and to use the full influence of his position as president to bring about a peaceful solution to 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 have allowed these other forces like the citizens' council and the plan to threaten and intimidate good people.

the moral leadership should come from the top executive of the government. it's his responsibility. >> five months after that decision, president eisenhower sent federal troops in to enforce the desegregation in little rock, arkansas. walk us through the legacy on this? >> as if brown wasn't dramatic enough, cooper v. aaron was also incredibly dramatic. you have a court order to integrate central high school. you have students who are being turned away by mobs you have the governor standing at the school house door saying he will not allow the students to come in and you have president eisenhower's decision to send the national guard to ensure is the admission of these school kids and then you have the supreme court which is so afraid that its rule to integrate the schools will not be obeyed that

they're not sure. each of the justices sign in ink, this was never done before, they prove their unanimity and it's a sign they're scared to death that he's not going to follow through and there's language of judicial supremacy that almost overstates the case. this court is supreme in its interpretation of the constitution seeming to suggest the president and congress have no role. that wasn't what john marshall asserted. basically, these were nine men who literally don't know what the president will do. the fact that he did send the troops and despite his grumbling about earl warren and i have to enforce the law is helps mitigate eisenhower's legacy. behind the scene, eisenhower was aware of the shifting politics and he was more supportive of

desegregation. >> i would like to show one more video and i would like to come back and talk about this. this is earl warren taped in 1969 in an interview, and he's talking about his frustration with the resistance to the brown decision. let's mix that in, and we'll hear your thoughts on this. >> in some parts of the country, yes, one couldn't help be impatient when you would see the orderses of the court and not obeyeded in any sense of the word and illegal things were changed in form, but not in substance and carried on. of course, one feels frustrated at that, but 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 that in the future they will have these rights then we'll solve most of the problems. a couple of things to say. first of all, i -- i agree that there is this revisionist scholarship that eisenhower puts a somewhat different spin on his views. however, and there is cooper versus 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. he's very supportive of state's rights which is what thurgood nashl is talking about it and

there is a sense that he is not really supportive of the principle of desegregation as a personal matter. so there's the story about how at a white house dinner that the people of the south who were resistant were not bad people. they simply were concerned about the little white girls sitting beside overgrown black boys in the classroom. i don't think there was that personal commitment to brown versus board of education and he, in that sense, was on the wrong side of history and earl warren on the other hand, also a politician and not a man who when he was appointed was respected as a great legal thinker. his skills were political, and

understood that having the office of the presidency and having three branches acting in the same way as we have after 1964 was really the only way that the decision would be enforced. >> let me take a call from ken watching us in somerset, new jersey. hi, ken. you're on. >> hi. thank you. i have two questions. number one, it is 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 is my understanding that at the time that he appointed warren, he intentionally appointed him because of this case and he wanted that to have a kind of a decision and i would like to hear your comments on that and secondly, it is also my understanding that when eisenhower sent troops into arkansas, it was also the first time that the president and the

executive had stood behind the supreme court especially since president jackson in 1828, and i'd like to hear your comments. >> the cherokees indians case, and he said of john marshall's decision, john marshall has made his decision and now let him enforce it confirming hamilton's adage that the supreme court has not -- i had not heard that eisenhower appointed warren because he wanted a positive decision in brown. the fact that he resisted making the appointment at all and trying to renege saying i didn't mean you for chief seems to call that into question and i do agree with tamika's counter which is that despite the revisionism on his whole, he was on the right side and please tweet something like that, i haven't heard that particular story.

>> we have ten minutes to talk about the 60 years of legacy which is just impossible to do. i first want to start with its legal legacy. we have four citations of brown and '64 with sims and racial integration and marriages. san antonio independent school district versus rodriguez in 1973 and planned parenthood v. case ney 1992. if you look at the legal legacy, what has it left the country with from that perspective? >> well, that's a really big question, i will say. the most important legal legacy of brown goes back to the point that it established the idea that the supreme court could be interventionist to protect 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 and you site san antonio versus rodriguez and there was a discussion of that decision by justice powell who writes san antonio which is a case that holds it, wealth is in suspect and education is not a fundamental right that is inconsistent with thurgood marshall's and a lot of people's understanding of the consequences of brown versus board of education. so when it came to the question of what it meant for education itself, brown was not persuasive authority at that point and there were other examples. >> when you are talking about the integration of schools bob hepburn on twitter says so far

you have not mentioned the hedge from the supreme court using the phrase integrating with all deliberate speed. how did this come in to play? >> how instructive was the court in actual rollout of desegregation? >> thank you, bob, for noting that. it's really important and the language came from our friend felix frankfurter who always had something up his sleeve and he said, once again, i know from english common law and principles of equity that when you are not sure if a particular decree could be in force you can give the party discretion and tell them they don't have to do it immediately and this principle was resisted by hugo black unlike frankfurt who actually was from the south, and black said if you give the south any room it will be worse, but frankfurter put in that language and there's lots of other hedges in that decision in brown to while giving weight to public and private consideration, it should make a prompt and reasonable start. the courts can consider problems

related to administration, but disagreement, the court did say the vitality of the principles can't be allowed to yield and the problem is it was a huge pass to the south, basically saying, go ahead, we're not going to be really be on you if you resist, and as tamiko, had such a central point that she made. it wasn't until the passage of the civil rights act in 1964, but the guideline adopted by the department of education and welfare a few years later that threatened to withhold federal funds of schools that didn't desegregate. it took more than a decade after brown to actually achieve its promise. >> so the court seems to continue to struggle at least at the university level with affirmative action cases and another one scheduled for this term in the court. so what has really been a societal legacy of brown versus board of education? >> another big question.

i would point as to parents involved it was a case about k through 12 education and whether a school district could voluntarily desegregate and there, the court held and struck down the policies that were at issue which in louisville had been adopted with the school system which was no longer efficiently under court order and with the large consensus of the community it wanted to continue with this integration program in schools and it was considered a model community for integration and the court impeded that saying that the principles established regarding diversity really don't apply in the k through 12 context. as you mentioned, there is the continuing controversy over

affirmative action. the court is going to hear the fisher case again. it will rule on the merits and it doesn't look good to proponents of affirmative action and it may not be a sweeping holding, but the nature of the conversation that the court is having really goes back to that word, some would say of judicial supremacy. the 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 and educational officials that would argue that they need to be in that position of exercising discretion about composing their student bodies. parents involved in the community schools in seattle was heard in 2007. some of what he wrote is this, before brown, schoolchildren

were told where they could and could not go to school based on the color of their skin. they have not carried the heavy burden that we should allow this once again even for very different reasons. the way to stop discrimination on the basis of race, is to stop discriminating on the basis of race. >> there is, as tamiko says, is it a ban on all racial classifications as chief justice roberts seems to suggest or is it a ban on racial subordination? does it demand color blindness or does it just prohibit cast affirming laws that degrade in the court is deeply divided on this question. the question itself can be found in the opinion and brown 2 which didn't resolve whether it was demanding equality of opportunity the end to formal segregation or the quality of results' actual integration and this continues to this day and all i can say is with c-span,

the national constitution center will host a series of debates and conversations on all of these questions including a great one on the fisher case next week with our partners in intelligence square, but this, the fact that after years after brown, more than 60 years after brown, we still haven't resolved what its central meaning is, and suggests that the meaning of the reconstruction amendments continues to be contested and debated. >> my last piece of video is thurgood marshall. it was the architect of the naacp's legal defense strategy which decided to attack the segregation of schools as the process to help change society. thurgood marshall went on to the supreme court as the first african-american justice and he served from 1967 to 1991. >> here is justice marshall at the national bar association meeting in 1988, accepting jurist of the century award and he talked a bit about the state of race relations post-brown.

>> i don't care of 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 and a goal that is a basis of true democracy which is over and above the law, and it is something that won't happen and you must pray for it and work for it and that goal is very simple. that goal is that if a child, a ne 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 is by

merely drawing its first breath in a democracy, there and without any more is born with the exact same rights as a similar child born to a white parent of the wealthiest person in the united states. no, it's not true. [ applause ] of course, it's not true. it never will be true, but i challenge anybody to take the position that 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 on the brown v. board decision in 1954 and what its significance has been on american society.

>> well, i think it is a decision that was important in constitutional law and it was generally considered the most important constitutional law case of the 20th century and that's rightly so, and it's a paradox, though, because of all of the things that we've talked about. brown was not considered to be a common law case that was actually baseded in law, right? there are many questions about the method that the court uses to reach its decision, but over time, it is accepted as the right principle. the court did the right thing. it sets a high bar and high aspirations for us and as justice marshall said so many times, we are still climbing toward its goals. >> jefferson and the declaration of independence promised all are created equal yet he owned

slaves and it made it something closer to a reality, the civil war amendments and the 13th, 14th and 15th amendments tried to enshrine that and it took a century for at least brown to begin to make the promise of the declaration and the reconstruction amendments a reality and we've not come close to achieving that for the reasons we were discussing. >> our thanks to tamiko brown, and jeffrey for this installment of land mark cases looking at the 1954 decision of brown versus the board of education and thanks to you for being part of our audience. audience.

american history tv is in prime time all week here on c-span3 with our original series, landmark cases. tonight we'll look at map versus ohio. in the case, the supreme court found that evidence cannot be used in criminal prosecutions if it is collected in violation of fourth amendment protections against unreasonable search and seizure, that's tonight on c-span3 at 8:00 p.m. eastern.

landmark cases returns live next february at c-span. join us to hear more stories of the people who sparked ground breaking cases and the justices and lawyers who were key to the supreme court's review. >> saturday night on book tv beginning at 9:00 p.m. eastern. former marine corps officer tracy crow and jamie bell, former naval officer talk about the history of women in the military in their book, it's my country, too. women's military stories from the american revolution to afghanistan. >> for so long women's stories, women's military stories have just been discounted or appropriated by others and so she felt like the timing was right. it is time to give these women a

voice. >> we were soldiers and sailors and we ended up in iraq and afghanistan doing the same jobs in many cases as the men and coming home to a country that did not recognize many of us as veterans, but with the same physical and moral injuries as the men. at 10:00 p.m. afterwards, arizona senator calls for a return of core conservative principles in his book, conscience of a conservative. he's interviewed by s.e. cupp, new york daily news columnist. >> how do you make the case, rightly, i think, that the health of conservatism is an urgent matter that actually has real world implications? >> i think -- i guess you can split two things. you can win elections and if you're doing that just for the sake of winning elections then, yeah. we can do that, but if we as conservatives want to the enact conservative policy, then you have to treat an election like

how do we set this up for governing and ways that we can move forward with our agenda. >> then at 11:00 p.m., robert o'neal who participated in the killing of osama bin laden on his military career and his participation in 400 other missions in his book, the operator, firing the shots that killed osama bin laden and my years as a s.e.a.l. team warrior. >> we didn't have a set line of who is going where and the guy bringing me up to bin laden's bedroom, he said don't take this the wrong way. i'm going, but if we know we're going to die why are we going which is legit? i said we're not going for fame, we're not going for bravado. we are going for the single mom who dropped her kids off on a tuesday morning and she jumped

off a skyscraper because that was a better alternative than burn alive. >> it was followed by afterward with senator jeff flake at 10:00 p.m. eastern and robert o'neal at 11:00 p.m. on c-span2's book tv. up next on american history tv on c-span3, a conversation on the legacy of supreme court justice thurgood marshall. he was the first african-american on the high court serving from 1967 to 1991. we'll hear from a number of his former law clerks including current supreme court justice elena kagan. >> i am robert katzman chief judge for the court of appeals for the 2nd circuit. today is a very special day. some 650 of us are here in this unprecedented