(Page 19 of 21) - Unanimity and Brown in Perspective: Institutions and the Shaping of Choice on the Supreme Court authored by Martin, Paul.

timately successful, strategies of a committed constitutional desegregationist whose political val-
ues clashed with his commitment to judicial restraint;

more recent critics have questioned this

claim.

In these three cases, and later in Brown, Frankfurter used his expertise, derived from

his connections to the NAACP, and his knowledge of many relatively liberal Southern lawyers to
pursue a distinctive line to the question which did not necessarily maximally advance the case
of desegregation: indeed, where necessary, he undermined the Court’s unanimity (as in Cooper
v. Aaron) in order to pursue it. But other Justices, also, in these cases view them essentially as
problems and threats rather than as (for example) an opportunity to do constitutional right. In
sum, then, I think it is possible to identify a characteristic uncertainty about the Court’s position
and power as fundamental in the rise of the unanimity norm.

In the cases where unanimity falters and falls, we may similarly make two observations.
Firstly, in Alexander and Swann, the instability of unanimity can clearly be seen. In Alexander,

Black claims (perhaps misleadingly) that he is more interested in getting his preferred outcome
than he is in achieving unanimity. As a consequence, he obtains a decision which is very close
to his preferred outcome. Conversely, in Swann, Black makes the same claim, but at a later stage
Brennan does something similar. In this situation it becomes impossible for the remainder of the
Justices to satisfy both Black and Brennan if they are telling the truth. In fact, it turns out that
they are not: both are willing to compromise more than they initially admit in order to achieve a
unanimous opinion. But clearly, if more Justices start to make the same sort of claim (that they
value their preferred outcome more than unanimity) then unanimity will swiftly become impos-
sible to maintain. Finally, both Brennan’s and Black’s credibility will be damaged if they often
make threats which they do not eventually back up: compromises of the sort reached in Swann are
therefore not necessarily optimal outcomes for the outlying Justices in the long run. If Justices do
threaten to dissent, then eventually they will dissent in order to maintain their credibility.

Secondly, non-unanimous decision-making in West Feliciana shows clear divisions along what

I will argue are institutional lines. While there is some attachment to unanimity — notably in
Burger’s saying it was “desirable to have one voice” in the January 12th conference — in practice,
little effort appears to have been made to bridge the divisions on the Court, especially once Har-
lan’s proposed per curiam had been clearly rejected. The group of four (Black, Douglas, Brennan
and Marshall) were clearly disturbed that the Harlan/White concurrence diluted the Court’s mes-
sage in this and previous decisions, and thought the Burger/Stewart dissent did likewise. The
source of this division is, I think, institutional, and it connects the “rise” and “fall” cases here.
In legal circles (even among supporters of desegregation), the fact that the Court had decided so
many educational desegregation cases from Brown II without plenary consideration was deeply
controversial, both among academic legal Ãl’lites and among state judges; there is some evidence
that they did so under pressure from Frankfurter who was, as ever, concerned to act as minimally
as possible.

Of the group of four, two had participated most of these summary dispositions of

cases (Black and Douglas); one had been the lawyer arguing for most of them (Marshall); and
one had taken part in some of the summary dispositions, and been closely associated with both
Frankfurter and Warren (Brennan). All four were in some sense tied to this strategy. Of the other
four, however, none were so closely tied, and all probably had some sympathy with the Court’s
critics on this issue — in particular, Harlan and Burger, who actually wrote the separate opinions,
were in this category: for the former, at least, lower courts needed to be given more guidance
than Frankfurter-inspired minimalism would provide. Thus, in some sense, the divisions in West

For a critical summary of this view see Tushnet and Lezin (1991, 1872–1875).

See Tushnet (1994, 188–90); Klarman (1994, 437–446); Patterson (2001, 56).

See Hutchinson (1979, S.IV).