Felix Frankfurter: Concurrence in Cooper v. Aaron

Felix Frankfurter remains something of enigma. An activist in early life, after his appointment to the Supreme Court, he came to stand for a restraint that seemed at odds with his past. In the end, perhaps, it can be said that Frankfurter’s vaulting intellect betrayed him, making him the enemy of his colleagues rather than their leader. His need to have the last word is evident in his concurring Opinion in Cooper v. Aaron, where he takes issue not with the majority’s logic but with its tone.

The state of Arizona had responded to the striking down of “separate but equal” legal racial segregation (in the two Brown v. Board of Education cases) by formulating a plan to integrate schools that would proceed at a snail’s pace. The Little Rock chapter of the National Association for the Advancement of Colored People sued to expedite the integration process. Meanwhile, violence gripped the state, and more roadblocks were put in place to inhibit the process. In the case of Cooper v. Aaron, the justices unanimously agreed that the equal protection clause of the Fourteenth Amendment mandated that the Arkansas desegregation plan go forward. Frankfurter agreed with the Court but bowed to white southern sensibilities in recognizing the need for their cooperation with enforcing the law.