NOTES

Irons – A People’s History of the Supreme Court, “War on the

Constitution”
 Justice Felix Frankfurter: “Did the Fourteenth Amendment’s framers
intend to outlaw school segregation?”
 George W. McLaurin (1894-1968) – first African-American to attend
the University of Oklahoma, already held a master’s degree from the
University of Kansas
o McLaurin v. Oklahoma State Regents for Higher Education
(1950) - McLaurin was denied admission into University of
Oklahoma because of Oklahoma law prohibiting instruction of
whites and blacks together, filed a case in the District Court of
Oklahoma and won citing violation of the Fourteenth Amendment
(Equal Protection Clause), was able to be admitted on a
segregated basis but separate facilities were found to be
discriminatory, appealed to the US Supreme Court which
reversed the lower court’s decision citing that segregation
violated the Fourteenth Amendment
 Marked the end of the “separate but equal” doctrine of
Plessy v. Ferguson in graduate and professional
education
 Equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and
responsibilities imposed (Philippine Judges Association v. Prado, G.R.
No. 105371).
 THREE JUSTICES THAT REQUIRED THE FULL WARREN TREATMENT
o 1 – Felix Frankfurter, wanted an unequivocal ruling of the
Supreme Court and ample time for southern districts to comply
(proposing a decree, allowing them to proceed “with deliberate
speed”) – won over by making the court issue the opinion he
wanted and frame a flexible decree
o 2 – Robert Jackson, wanted Court to admit that ending
segregation has no constitutional warrant, drafted a
concurrence that read like the fable about the emperor with no
clothes – won over through Prettyman, his law clerk, reading
Warren’s draft opinion to him in his hospital bed after suffering a
heart attack
o 3 – Stanley Reed, drafted a dissent, arguing that blacks were
provided only an “opportunity to obtain facilities substantially
 equal to his neighbors for himself.” – won over after 20
lunchtime discussions
 Earl Warren, Oliver Brown et al v. Board of Education of Topeka
o Dismissed Plessy saying it “involved transportation not
education.”
o Unmoved by lower court decisions on school cases which stated
that facilities “have been equalized, or are being equalized
o Stressed the psychological impact of enforced separation
 Denoted “inferiority of the negro group” which
diminished the “motivation of the child to learn”
 “Separate but equal” doctrine has no place
 “Separate educational facilities are inherently
unequal”, concluded unanimously
 Senator James Eastland called Brown, “a legislative decision by a
political court.”
o Irons – The Court “makes” new laws to replace old laws, it
necessarily plays a role in the political process
 Elizabeth Eckford – one of the Little Rock Nine who bravely walked her
way into entering Little Rock, but was riddled with violence
 Cooper v. Aaron
o Cooper, board president of Little Rock in Arkansas
o Aaron, first alphabetically of the black plaintiffs
o Butler, board’s lawyer
o Orval Faubus, Arkansas governor vs. Earl Warren, Chief Justice
of the Supreme Court
o Warren: “…I never heard a lawyer say that a statement of a
governor, as to what was legal or illegal, should control the
action of any court.”
 The irony is that those who waged war against the Constitution was
rewarded rather than punished as Faubus remained for four more
terms