The 1953 Deliberations

Following the rearguments, the nine justices met again for their private deliberations on Saturday morning, December 12. Again, the men greeted each other with handshakes, took their seats, and made their opening statements in order of seniority.

We know of that day's deliberations mainly from notes kept by Justices Harold Burton and Felix Frankfurter.

The most significant change in the court's dynamic since the deliberations the previous year was Earl Warren's recess appointment as Chief Justice. Unlike his predecessor, Warren was considered incredibly amiable, well-liked, and-as a longtime governor of California-an experienced political deal-maker.

Warren would later write in his memoir:

Warren opened the discussion that morning by laying his cards on the table: the only way he could see the court upholding Plessy and the "separate but equal" doctrine was to accept the premise that the Black race was inferior. And he believed Thurgood Marshall and his co-counsel had successfully proved it was not. The court must end the segregation of Black schoolchildren.

Further, Warren suggested the justices discuss the case without taking a customary straw vote. The Chief Justice was fairly certain he had the support of the four justices who were ready to vote the previous term to overturn segregation - Hugo Black, William Douglas, Harold Burton, and Sherman Minton - and therefore, he had the majority needed to overturn public school segregation.

But Warren had a larger goal in mind. He wanted the court to speak with one voice, to issue a unanimous ruling, one that would make it clear to the entire country that segregation by race was no longer allowed.

Justice Reed spoke next, making clear his opposition. Though Reed said he could see the Chief Justice's point of view. He believed the Constitution was dynamic and that times had changed since the Plessy ruling. He simply did not think that children going to separate schools was a denial of liberty.

As the justices went around the room that day, Reed offered the lone dissent, but there were details to work out. Justices Frankfurter and Jackson seemed inclined to write concurring opinions, either separately or together. Knowing how important the decision would be, the justices agreed to keep their conversations close, agreeing not to discuss the deliberations even with their clerks.

On March 1,1954, the Senate confirmed Earl Warren as Chief Justice.

Weeks later, the justices allowed a straw vote. 8 to 1 to overturn segregation. Two things stood in the way of Warren's unanimous decision.

Justice Robert Jackson was uneasy and drafted a separate opinion that was never published:

However, in late March, Robert Jackson suffered a heart attack. He survived but was in the hospital for months recovering. By the time Earl Warren hand-delivered his draft opinion to Jackson in the hospital, the ailing Jackson was ready to sign on to Warren's plainspoken language.

That left Kentucky-born Justice Stanley Reed as the final holdout. According to his former law clerk, John David Fassett, Justice Reed thought the country was moving toward equality and worried the Court's ruling might disrupt it. He even wondered aloud about the fate of Black teachers who would lose their jobs as a result of the ruling. Ultimately, Stanley Reed agreed to join the majority opinion, though history does not offer a clear picture of what finally persuaded him.

Justice Burton's diary noted that the Warren opinion was finally approved in the justices' Saturday conference on May 15, 1954. Secrecy was still essential. Earl Warren would read the opinion in its entirety two days later.