The 1952 Deliberations

As South Carolina's lawyer John W. Davis left the court following final arguments on Wednesday, December 11, 1952, he was overheard telling a colleague from Virginia, "I think we've got it won, five-to-four - or maybe six-to-three."

Davis was right about the court being split, but we'll never know how close he was to the actual count. The justices decided not to take an internal vote after the first round of arguments. Instead, they punted their decision to the following term. It was a strategic move that would change civil rights history.

In the years preceding Brown v. Board of Education, the court had become increasingly polarized. Chief Justice Fred Vinson's struggle to build consensus or unite the court didn't help.

The nine white men gathered in their first-floor conference room on Saturday, December 13,1952, to deliberate Brown v. Board. The court's Saturday deliberations were private—not even clerks were allowed—and the only existing records came from the justices' incomplete notes, particularly those of Justices Harold Burton and Robert H. Jackson.

The court's process for deliberations followed a custom. The justices, wearing regular suits and not their robes, shook hands, sat with the Chief Justice at the head of the table, and spoke in descending order of seniority. On that day, after each Justice had said their piece, if someone had taken a straw poll, it might have broken down like this:

Four favored overturning segregation. Hugo Black was from Alabama, and he was outspoken in his commitment to racial equality, particularly after it came to light that he'd once been a member of the Ku Klux Klan - that was a mistake Black chalked up to political motives rather than ideological ones. Black would likely have been joined by Justices William Douglas, Harold Burton, and Sherman Minton, who each expressed varying degrees of clarity that segregation was not equality.

Two justices—Chief Justice Fred Vinson and Stanley Reed, both Democrats from eastern Kentucky — were likely to have voted to uphold Plessy and allow school segregation.

The remaining three justices - Tom Clark, Robert H. Jackson, and Felix Frankfurter - were likely to overturn Plessy but felt the arguments failed to make the constitutional case for doing so.

Frankfurter had hired the court's first Black law clerk, yet even before the Brown v. Board cases came before the court, he was concerned about the Court overstepping its role. In a memo he drafted sometime in the summer of 1952, Frankfurter wrestled with his opinion:

Frankfurter wrote that the Justices should not express their personal attitudes or individual convictions regarding equal rights.

Frankfurter sought delay, and to achieve that, he wanted evidence: Did the framers of the 14th Amendment mean for the equal rights provision to apply to public schools?

More than anything, Frankfurter thought the court needed more time and hoped to gain the support of the new Eisenhower administration. The justices agreed to hear the cases again at the start of the next term in October. In the summer, Vinson pushed the cases back to December.

To focus the rearguments, Frankfurter had his clerk draft a series of questions for the lawyers on both sides to address when they next appeared before the bench. In a memo he sent on May 27, 1953, he said the questions were designed not to tip the court's hand about which way it was leaning.

Meanwhile, a pivotal event in dismantling segregation was one few could have predicted. In early September 1953, Chief Justice Fred Vinson had a heart attack and died in his sleep. It was the opening Frankfurter thought could shift the court. A life-long agnostic, Frankfurter told his former law clerk, Phil Elman, "This is the first solid piece of evidence that there is a God."