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From Jim Crow to Civil Rights by Michael J. Klarman(Oxford University Press, 655 pages, $35) Simple Justice by Richard Kluger (Oxford University Press, 865 pages, $25) The 50th anniversary of Brown v. Board of Education has brought forth an outpouring of books examining the Supreme Court’s landmark decision to outlaw racial segregation in public education from all angles. For students of history, two of the most interesting tell the story of the decision � how it came about when it did � in strikingly different ways. Richard Kluger’s magisterial history of the Brown litigation, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality, published in 1976 and now reissued with a new final chapter, tells the story in mythic terms. Kluger starts his story � a decade in the writing � with African-American parents who braved white power establishments in segregationist bastions to demand better education for their children. Their causes were taken up by a band of civil rights lawyers, spearheaded by the indomitable and indefatigable Thurgood Marshall. They fashioned and executed a legal strategy that forced a fractious Supreme Court to confront the contradictions of separate but equal. And, by a fortunate coincidence, the Court pondered long enough to allow the arrival of a new chief justice, Earl Warren, endowed with the political skills to win the wavering justices’ assent to a unanimous decision. In From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, Michael Klarman tells the story of Brown only as a small part of the history of race law from the birth and entrenchment of segregation through the first decade of its supposed demise. Klarman, a professor at the University of Virginia Law School who also spent a decade on his book, deals hardly at all with personalities. Indeed, he completely passes over the litigants in Brown. Instead, Klarman sees Supreme Court decision-making as largely determined by broad social, economic, and political conditions. Klarman posits that justices make decisions along two axes � one legal, one political � whose relative importance varies from case to case and justice to justice. In the indeterminate area of constitutional law, Klarman believes the political typically dominates. So the meaning of the 14th Amendment necessarily depends on events and conditions outside the Court. Kluger seems to proceed instead from the view that in constitutional law � as in public policy � some decisions are right, and some are wrong. Thus Kluger and Klarman differ in recounting the Court’s 1896 ruling in Plessy v. Ferguson that upheld racial segregation in public accommodations. Kluger depicts the Court’s decision � resting on the premise that separate but equal in no way consigned negroes to an inferior status � as willfully callous and stupid, not to mention legally erroneous. Klarman, on the other hand, thinks the Court could have done nothing else. Post-Reconstruction white supremacy was a fact, Klarman says, that the Court had no power to stand against even if the justices had wanted to. Klarman views the demise of segregation as a gradual and inexorable process resulting from a constellation of factors. The migration of blacks to better-paying jobs in the North created a political constituency there for improving race relations. It also led to some relaxation of the strictures of segregation in the South that created breathing space for blacks to petition for redress of their grievances. He also notes the importance of the founding of the National Association for the Advancement of Colored People in 1909 and its legal arm, the NAACP Legal Defense and Educational Fund, three decades later, in 1940. Kluger puts the Legal Defense Fund in the foreground and external conditions in the background. Marshall was tapped by Charles Houston, dean of Howard University School of Law, to tackle segregation as a full-time mission. Marshall then traveled throughout the South and border states in the 1940s to organize anti-segregation litigation, heedless of personal dangers and undeterred by the odds against him. With a core of half a dozen lawyers, the Legal Defense Fund assembled a solid evidentiary and legal case against segregated schools. By this time, Klarman emphasizes, other outside forces were undermining segregation too. The dislocation of World War II engendered increased restiveness among African-Americans, especially among black veterans who fought for democracy in Europe and the Pacific only to return to second-class citizenship in the United States. Some in white America also saw the contradiction. In any event, racial segregation was a liability in seeking international favor in the emerging Cold War with the Soviet Union. Kluger tells the story of each of the four Brown cases in detail, from trial to Supreme Court argument in December 1952 and reargument in December 1953. Klarman skips straight to the justices’ deliberations. His deterministic thesis seems to point to the conclusion that the Court was bound to outlaw segregation, but he must account for the justices’ initial, splintered vote � with two justices in favor of upholding segregation and three, including Chief Justice Fred M. Vinson, wavering. Vinson’s death paved the way for Warren’s appointment. The rest is history. Separate but equal has no place in public education, Warren declared from the bench on May 17, 1954. A year later, however, the Court said school districts need not desegregate immediately, nor by a fixed date, but “with all deliberate speed.” Kluger closed his book originally with Marshall’s confident prediction in 1955 that southerners “would get tired of having Negro lawyers beating ‘em every day in court.” Klarman carries the story forward through a decade of massive resistance and foot-dragging. By 1964, only 2 percent of black pupils were attending desegregated schools in the South. Klarman says that with little political support � President Dwight Eisenhower was conspicuously silent � the Court had no choice but to lie low. Only when external conditions changed � chiefly because of the national indignation over the televised abuse of civil rights demonstrators � did Presidents John Kennedy and Lyndon Johnson and Congress lend support to the Court. But, as Kluger says in his new chapter, political conditions changed back, beginning in the 1970s. Today, he says, much of white America thinks the racial issue has been solved. Black America, meanwhile, is split between middle and upper classes that enjoy relative comfort despite the always-present consciousness of being part of a minority and an underclass that lives in “a vicious cycle of ghetto existence.” Together, Klarman and Kluger point to a single lesson. To borrow the astrologers’ axiom, history impels, but it does not compel. Brown may or may not have been impossible years earlier, but it resulted eventually from a combination of historical conditions and personal efforts. At present, the political will to provide equal education for all students � white, black, and brown, too � may seem lacking. But the future is in our hands, not yet in history’s. Kenneth Jost is Supreme Court editor of CQ Press and associate editor of The CQ Researcher.

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