`Separate but equal' was the law of the land, until one decision brought it crashing down
But the problem was still a southern one: namely, Chief Justice Fred Vinson. Not only was the NAACP arguing before a Supreme Court that had upheld Plessy numerous times since 1896, but the chief justice in 1952 was a native Kentuckian who had a long history of supporting government action over constitutional challenges. By all accounts, Vinson was opposed to overruling Plessy.
Some in the NAACP feared that Marshall might have gone too far. "There was a sense that if you do this and you lose, you're going to enshrine Plessy for a generation," says historian James T. Patterson, author of Brown v. Board of Education: a Civil Rights Milestone and its Troubled Legacy. And NAACP members weren't the only ones worried. Philip Elman, the assistant solicitor general at the time, told an interviewer long afterward: "When we filed our brief in early December [in favor of the NAACP, but with reservations], I went on the NAACP's s- - -list as a gradualist. They just didn't know how to count the votes on the court. . . . It had been a mistake to push for the overruling of segregation per se so long as Vinson was chief justice--it was too early."
Split. The justices heard arguments in December 1952 but were too divided to come to a decision. On one end was Justice Hugo Black, who said that segregation was "Hitler's creed--he preached what the South believed." At the other end was Justice Stanley Reed, a southerner who had gone along with a decision the year before to desegregate restaurants in Washington, only to go outside after the conference and reportedly exclaim, "Why--why, this means that a nigra can walk into the restaurant at the Mayflower and sit down to eat at the table right next to Mrs. Reed."
In an unusual step, the case was pushed back a year so the attorneys could research the original intentions of the framers of the 14th Amendment's equal protection clause. A few months before Brown was to be reheard, however, the foes of segregation caught a break. On the night of Sept. 8, 1953, Chief Justice Vinson died of a massive heart attack. Justice Felix Frankfurter reportedly remarked to a law clerk not long afterward: "This is the first indication I have ever had that there is a God." Less than three weeks later, the new president, Dwight Eisenhower, nominated a replacement: Earl Warren, the Republican governor of California.
Dealmaker. Until 1953, Earl Warren had never served as a judge. He was a consummate politician who had been elected governor three times and was an advocate for civil rights--of a sort. As state attorney general, he had been instrumental in moving Japanese-Americans into internment camps. Later "Warren felt an enormous sense of guilt," says Ed Cray, author of Chief Justice: a Biography of Earl Warren. He called for antilynching and anti-poll-tax legislation, both political nonstarters at the time. And as he took his seat on the bench, "you could argue that he was expiating something," says Cray.