Felix Frankfurter: Concurrence in Cooper v. Aaron

Explanation and Analysis of the Document

In 1954, with Brown v. Board of Education, the Supreme Court handed down one of its most historically significant opinions. The burden of Brown was to overturn Plessy v. Ferguson (1896) and thereby end more than a half-century of “separate but equal” legal racial segregation. The Court did so by taking up the issue of school desegregation, but mandating this change proved difficult. The next year, in Brown v. Board of Education II (1955), the Court ordered states to desegregate their public schools “with all deliberate speed,” putting the onus of enforcement on lower federal courts. Predictably, many southern states dragged their feet—in no small part because President Dwight Eisenhower's well-known personal dislike of the Brown decision provided no moral support for moving forward and perhaps even encouraged delay on the part of noncompliant states. The standstill ended in 1958 with Cooper v. Aaron.

The state of Arkansas responded to Brown II by formulating a plan that would proceed glacially toward integration, beginning with a mere handful of African American students being admitted to only one school, Central High School in Little Rock, in the fall of 1957. The Little Rock chapter of the National Association for the Advancement of Colored People decided to sue in federal court in order to expedite the desegregation process, choosing as litigants a number of children whose applications to all-white schools had been rejected. John Aaron was only the first of these named plaintiffs, just as William G. Cooper, president of the Little Rock School District, was only one of the named defendants. The school district won at trial, and this judgment was upheld by the Eighth District Court of Appeals, which held that the school district's plan was prompt and reasonable.

In the interim between the hearing and its appeal, voters had adopted a state constitutional amendment opposing school integration, while another suit, intended to stop implementation of the limited integration plan, wended its way to the Eighth Circuit. The Arkansas governor, Orval Faubus, then appeared on television to announce that, owing to threats of violence, he was ordering the state national guard to prevent integration at Central High. The next day, Judge Ronald Davis of the federal district court ordered the school to integrate on schedule and also requested that the U.S. Department of Justice intervene to enjoin Governor Faubus from executing his order. On September 23, 1957, nine black students, the “Little Rock Nine,” entered Central High School under the protection of the city police department. Their attendance lasted only a few hours, however, because of the large crowds demonstrating outside the school. President Eisenhower could not ignore Faubus's challenge to federal power, and two days later he sent members of the 101st Airborne Division to escort the Little Rock Nine to Central High. Federalized national guardsmen replaced the army troops and remained in place for the remainder of the school year.

Although Judge Davis's ruling had been upheld in federal appellate court, yet another lawsuit sought to delay desegregation because of continued threats of violence. As that case was working its way through the courts, in August 1958 the Supreme Court met in special session for only the third time in its history to hear arguments for and against delaying the Arkansas school desegregation plan. The case presented two primary questions: Would a postponement violate the constitutional rights of the black students? Were the state governor and legislature bound by decisions of the U.S. Supreme Court? The justices agreed quickly and unanimously that the equal protection clause of the Fourteenth Amendment demanded that the Arkansas desegregation plan go forward as planned. They further agreed that the supremacy clause of Article VI bound state governments to Supreme Court decisions. At Justice Frankfurter's suggestion, for the first time in the Court's history and as an indication of its solidarity, every justice signed the Court's opinion. The other justices were therefore astonished on September 29, when the Court convened to announce its decision, to hear Frankfurter say that he had written a separate concurring opinion memorializing his disagreement with some of the language in the Court's opinion, which had been written by Justice William Brennan.

Frankfurter's concurrence differs little from the Court's opinion: No state can interfere with the authority of the federal government as outlined in the Constitution. Without adherence to law, anarchy reigns—just as it did during the Civil War. And law cannot yield to force, for the constitutional rights of a minority are at stake, rights that must be upheld lest the rest of American society succumb to a breakdown in the order imposed by law. But then Frankfurter closes with a bow to what he sees as the different sensibilities of white southerners. Brown II, he implies, recognized differing needs among different communities—and recognized that it would take cooperation from local authorities to make desegregation work. The eloquent words of Abraham Lincoln’s First Inaugural Address failed to avert war, but the compassion implicit in “the better angels of our nature” helped overcome seemingly insurmountable differences.

Frankfurter claimed that his decision to concur separately grew out of a long-standing and special relationship with southern lawyers, on whose respect for the law he felt desegregation ultimately depended. In the midst of oral argument in Cooper, he had asked Chief Justice Earl Warren to make a similar bow to the school district's lawyer. Warren refused. Frankfurter believed that Warren lacked a proper sense of the delicacy of the situation and, in essence, made an end run around the chief justice and the rest of the Court. Warren, not surprisingly, felt betrayed. Justices William Brennan and Hugo Black drafted a separate concurrence to distance themselves from Frankfurter but were dissuaded from publishing it. Whatever Frankfurter's motives, his attempt at a grace note did little good. Cooper initially stiffened resistance to desegregation. It would take another six years of struggle on the part of civil rights activists before the Civil Rights Act of 1964 forced the South to desegregate.