Michael J. Klarman won the Bancroft Prize in 2005 for From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. Brown v. Board of Education and the Civil Rights Movement, is an abridged, paperback edition of his original masterpiece, which focuses around one major case, Brown v. Board of Education. In the original essay below Klarman, who is the James Monroe Professor of Law and Professor of History at the University of Virginia, explores political backlash.
While we ordinarily think of Brown v. Board of Education (1954) as contributing to the creation of the modern civil rights movement, Brown’s more immediate effect was to crystallize the resistance of southern whites to progressive racial change, radicalize southern politics, and create a climate ripe for violence. Indeed, prominent Court decisions interpreting the U.S. Constitution have often produced political backlashes that undermine the causes that the rulings seem to promote.
In 1842, when the U.S. Supreme Court struck down a Pennsylvania law that sought to protect the state’s free black citizens from kidnapping by southern slave catchers, outraged northern states responded to the ruling by adopting even more aggressive laws that interfered with the efforts of southern masters to recapture escaped fugitive slaves. In 1857, the Supreme Court ruled in the famous Dred Scott decision that the Constitution barred Congress from interfering with slavery in federal territories. That decision produced an enormous backlash in northern states. The newly formed Republican party, whose principal political commitment was to securing a congressional ban on slavery in federal territories, mobilized against the Court. Many northern voters, beginning to believe Republican allegations of a slave power conspiracy to interfere with their liberties, became Republicans, thus helping to elect Abraham Lincoln president in 1860.
More recent Court decisions interpreting the Constitution have produced similar political backlashes. The Warren Court’s criminal procedure rulings of the 1960s—and especially Miranda v. Arizona in 1966—became popular targets for politicians trying to establish their toughness on crime in the midst of urban race riots and rising crime rates. A movie actor named Ronald Reagan won the 1966 gubernatorial election in California on such a platform, and Richard Nixon was elected president of the United States in 1968 after a campaign in which he criticized courts for unduly handcuffing police officers.
The Supreme Court’s ruling against the constitutionality of the death penalty in Furman v. Georgia in 1972 produced an extraordinary political backlash. National opinions polls conducted between 1969 and 1971 showed consistent majorities of roughly 50 percent to 40 percent in favor of the death penalty. Within a few months of the Supreme Court’s decision in Furman, that 10 percent gap had become 25 percent; within another year, it had become 35 percent. As Americans came to fear that the Court would permanently deprive them of the death penalty, they mobilized in favor of capital punishment. Politicians played an important role in this process. Within a week of Furman, a young district attorney in Philadelphia named Arlen Specter was promoting a constitutional amendment to save the death penalty. In California, Governor Reagan spent the better part of 1972 attacking the state supreme court ruling against the death penalty, culminating in a state referendum in November that approved capital punishment by 67 percent to 32 percent—by far the largest margin in favor of the death penalty that California polls had ever revealed.
In November of 2003, the Massachusetts Supreme Judicial Court ruled that the state’s constitution required that gay and lesbian couples be permitted to marry. That ruling became a dominant topic in the 2004 presidential election, mobilizing social and religious conservatives, driving a wedge through the Democratic party’s constituencies, and possibly earning President Bush a narrow victory in Ohio, where the presidential contest was determined. In the three years since the Massachusetts court decision, roughly twenty states have adopted constitutional amendments defining marriage as a union between a man and a woman. Only two states had such constitutional provisions before the court ruling.
Brown v. Board of Education had a similar effect in the South in the mid-1950s. The Supreme Court’s decision, which invalidated public school segregation under the Fourteenth Amendment, radicalized southern politics and fomented violent resistance to progressive racial change. Fifteen to twenty-five percent of southern whites candidly admitted to pollsters that they would support violence, if necessary, to block school integration. Southern politicians competed against one another to occupy the most extreme position on the segregationist spectrum. Brown rehabilitated the political careers of southern extremists like Birmingham police commissioner Bull Connor and created the careers of others, such as George Wallace of Alabama. Connor, for example, negotiated with leaders of the Ku Klux Klan, offering them 15 minutes of “open season” on the Freedom Riders when they rolled into Birmingham in May 1961, in exchange for their political support. The civil rights demonstrators suffered horrific beatings, and Connor won reelection to office.
Brown’s backlash ultimately generated a counterbacklash, however. Northern whites had been indifferent about civil rights generally—and the enforcement of Brown v. Board of Education specifically—until they witnessed through the new medium of television the barbarities perpetrated by southern law enforcement officers on peaceful civil rights demonstrators. Repulsed by such episodes on the streets of southern cities such as Birmingham and Selma, they demanded civil rights legislation, which then accelerated the demise of the southern Jim Crow system. Thus, paradoxically, the Court’s ruling in Brown contributed to the demise of white supremacy by bringing to the surface the violence that lay at the core of white supremacy and exposing it to the nation’s disapproving gaze.