On October 9th the eight-Justice Court
28
voted unanimously to grant certiorari
29
, and to sched-
ule oral argument for October 23rd (ignoring administration requests to postpone any hearing
until HEW produced new plans at the beginning of December
30
).
At oral argument, Jack Greenberg spoke for the petitioners, attempting to frame the case in
terms of the inadequate (or worse) responses of lower courts and the disobedience of Southern
officials: “The law has been disobeyed by Respondent districts, and the Courts below have not required
obedience”
31
. Not only had Mississippi attempted to evade the Supreme Court’s decisions — “from
1954 to 1964 there was no school desegregation in Mississippi. Instead the state passed doctrines of inter-
position and nullification” — but they had had judicial assistance: “the sorriest part of the story lies in
the exercise of discretion by some U.S. District Judges in that State”. The resulting delays had replaced
“segregation forever [with] litigation forever”.
The various respondents were no longer willing fundamentally to engage with the principle
of desegregation as such: J. C. Satterfield, for the school district, admitted that “I recognize that
time has run out, Sir . . . Everything must come, and come right now, realistically”, although he also
referred at length, and in detail, to the existence of de facto segregated school systems, arising from
patterns of residential segregation, in many non-Southern metropolitan school districts. Jerris
Leonard, Assistant Attorney-General, speaking for the United States, argued that Green v. County
School Board
32
had represented a turning point in the long history of desegregation: the response
to Green had been relatively swift, and the Court ought “not to do anything precipitous” at a time
when meaningful desegregation was at last being achieved.
Conference on the case was on October 24th
33
. Burger argued that the Court should remand
the case to the Appeals Court with directions to remand to the District Court for hearings on the
HEW desgregation plans, with action no later than the end of 1969.
Black disagreed: he argued that the illegality of segregation was settled; it was time to abandon
‘all deliberate speed’ — a phrase the use of which in Brown he said he now regretted — and to issue
a simple order (with no opinion) to desegregate immediately
34
. Douglas and Brennan similarly
supported Black’s stand on the need for “integration right now” and an end to the dual schools
system.
Harlan, Stewart and White adopted a centrist position, arguing that Black was being too ab-
solutist. Harlan, like Burger, wanted an order to be followed by an opinion, remanding to the
District Court for hearings on the HEW plans; Stewart favoured setting an intermediate deadline
of up to two weeks to put a desegregation plan into effect; White (like Douglas) wanted to avoid
remanding the case to the District Court, whose intentions he distrusted, and suggested ordering
the Court of Appeals to effect the HEW plans in the interim, with hearings later.
Marshall stressed that he wanted unanimity above all else, and would even be willing to vote
for delay if that meant unanimity. All the Justices except Black also publicly agreed that una-
nimity was essential; Douglas suggested that Burger, Black and Brennan should form a “drafting
committee” to prepare the order in the case.
28
Burger, Black, Brennan, Douglas, Harlan, Marshall, Stewart and White.
29
Cert. record in WJBP box 418.
30
Clerk’s memo from ‘TCA’ to Douglas, dated October 7th, concerning Solicitor-General’s Memorandum for the
United States in Alexander.
31
Record of oral argument in WJBP box 218.
32
391 US 430 (1968).
33
Discussion taken from conference notes in WODP box 1481.
34
Both Woodward and Armstrong (1979), p. 44, and Schwartz (1986), p. 66, state that Black also threatened to
dissent if there were to be a full opinion allowing for any delay in desegregation, although Douglas’ notes of conference
discussion do not record that threat; as will be seen, Black certainly made such a threat at least at some point in the
case, if not in conference.
9
Convention