Unanimity and Brown in Perspective: Institutions and the
Shaping of Choice on the Supreme Court
Paul J. Martin
∗
Wadham College
University of Oxford
August 15, 2003
1
Introduction
This paper sets out to explain elements of the relatively stable norm of unanimity on the US
Supreme Court in educational desegregation cases between 1948 and 1971. In particular, it fo-
cuses on the beginning and end of these periods, and of the norm: on the means by which it was
constructed and by which it fell. In this paper, there are two sets of questions I try to address: why
and how was unanimity created as a norm in the educational desegregation cases leading up to
Brown; and why and how did it crumble at the end of this period?
1
This paper shows the considerable importance of a single, informal institution as a constraint
on the development of judicial policy, and as an institution which once adopted is self-reinforcing
in its effects. In conclusion I draw broader conclusions about judicial norms, and the path-dependent
nature of judicial decision making. Thus the politics of race remains generally hostage to the con-
sequences of the Warren court’s specific need to show no weakness in pursuit of racial egalitari-
anism, and of the precise way in which it did so.
The paper focusses exclusively on educational desegregation, partly for practical reasons (be-
cause the issue of race in general is too large, and involves too many non-unanimous cases), and
partly because the Justices themselves seem to see a difference in kind between the educational
and non-educational cases concerning race in this period.
2
Unanimity on the Supreme Court
2.1
Key historical features
It is important to situate the desegregation decisions in terms of three major features of the insti-
tutional backdrop.
∗
email: paul.## email not listed ##. Prepared for delivery at the 2003 Annual Meeting of the American
Political Science Association, Philadelphia PA, August 28 - August 31, 2003. I would like to thank Dr. Eugenia Low for
her help deciphering the handwriting of Justices Douglas and Burton.
1
One important question is not addressed here, for reasons of space: what are the policy consequences of unanimity?
What options were ruled out by the need for unanimity, and how might those options have affected outcomes?. This
question can only really be examined over the full set of educational desegregation cases, but it raises interesting
questions about the options which really were open to the contemporary Court. See Balkin (2001).
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