Fantasy Moot

The bench that decided Brown · October Term 1953

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347 U.S. 483 · Decided May 17, 1954

Brown v. Board of Education of Topeka

Are separate public schools, equal in every measurable respect, still a violation of the Equal Protection Clause?

Argued

Dec. 9, 1952; reargued Dec. 8, 1953

Vote

9–0

Opinion

Chief Justice Earl Warren

Counsel

See the full roster below

Brown consolidated four school-segregation appeals—from Kansas, South Carolina, Virginia and Delaware—brought by the NAACP Legal Defense and Educational Fund. A companion case from the District of Columbia, Bolling v. Sharpe, was decided the same day under the Fifth Amendment because the Fourteenth does not reach the federal government.

Who argued it

Brown (Kansas)

Robert L. Carter for the appellants; Paul E. Wilson, Assistant Attorney General, for the State

Briggs (South Carolina)

Thurgood Marshall for the appellants; John W. Davis for the State

Davis (Virginia)

Spottswood W. Robinson III and Oliver W. Hill for the appellants; T. Justin Moore and J. Lindsay Almond Jr. for the State

Gebhart (Delaware)

Jack Greenberg and Louis L. Redding for the plaintiffs; H. Albert Young, Attorney General, for the State

Bolling (District of Columbia)

George E. C. Hayes and James M. Nabrit Jr. for the petitioners; Milton D. Korman for the District

United States

J. Lee Rankin, Assistant Attorney General, as amicus at reargument

Constance Baker Motley, William T. Coleman Jr., Charles L. Black Jr., William R. Ming Jr., Loren Miller and Louis H. Pollak were among the many who worked the record and the briefs without arguing.

The difficulty was Plessy v. Ferguson. For fifty-eight years "separate but equal" had been settled law, and the states had an answer ready for the obvious argument: make the facilities equal and the constitutional problem disappears. Worse, in Gong Lum v. Rice (1927) the Court had already applied that rule to public schools specifically, upholding Mississippi's exclusion of Martha Lum, a Chinese-American student, from the white school. So the segregation of schoolchildren was not an open question the advocates could walk into—it was settled ground they had to take back.

The Fund had spent years building toward this. In Sweatt v. Painter (1950) the Court ordered Heman Sweatt admitted to the University of Texas law school, holding that the separate school Texas had improvised could not match it on the intangibles—faculty reputation, alumni influence, prestige, "the traditions and prestige" that make a law school. The same day, in McLaurin v. Oklahoma State Regents, it struck down the roped-off desk, the separate library table and the segregated cafeteria seat that Oklahoma had imposed on George McLaurin after admitting him, because those restrictions impaired his ability to study and exchange views with other students.

Both were unanimous. Neither touched Plessy. That was the trap: the Court kept finding ways to rule for the plaintiff on the facts, and the Kansas district court had found Topeka's Black and white schools substantially equal in buildings, transport, curriculum and teacher qualifications. There was no factual inequality left to win on. Counsel had to persuade the Court that separation itself inflicted the injury, and they leaned on social-science evidence—including Kenneth and Mamie Clark's doll studies—to prove it. Across the lectern in the South Carolina case stood John W. Davis, a former Solicitor General arguing his 140th case before the Court.

After the first argument the Court could not reach consensus and ordered reargument on two questions: what the framers of the Fourteenth Amendment understood it to do about school segregation, and what remedy a court could realistically order. Chief Justice Fred Vinson died before reargument. Earl Warren took his seat and delivered a unanimous Court, holding that "separate educational facilities are inherently unequal." The remedy came a year later in Brown II, with its famously elastic instruction to proceed "with all deliberate speed."

You can read the actual transcript here. Do you think you can do better? Let's find out!

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372 U.S. 335 · Decided March 18, 1963

Gideon v. Wainwright

Must a state provide a lawyer to a defendant too poor to hire one, in an ordinary felony case?

Argued

January 15, 1963

Vote

9–0

Opinion

Justice Hugo Black

Counsel

Abe Fortas for Gideon

Clarence Earl Gideon was charged with breaking into a Panama City, Florida poolroom. He asked the trial court to appoint counsel; Florida appointed counsel only in capital cases, so the judge refused. Gideon defended himself, lost, and drew five years. From prison he sent the Supreme Court a petition written in pencil on lined prison stationery. The Court took the case and appointed Abe Fortas—a future Justice—to argue for him.

The obstacle was Betts v. Brady, decided twenty-one years earlier, which held that counsel was required only where some special circumstance made the trial unfair without it. Gideon's case had no special circumstance. That was the point: the argument had to be that Betts was wrong the day it was decided. The Court agreed unanimously, holding the Sixth Amendment right to counsel fundamental and binding on the states through the Fourteenth. Gideon was retried with a lawyer and acquitted.

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384 U.S. 436 · Decided June 13, 1966

Miranda v. Arizona

What must police tell a suspect in custody before questioning him, and what happens to the confession if they don't?

Argued

Feb. 28 – Mar. 1, 1966

Vote

5–4

Opinion

Chief Justice Earl Warren

Dissent

Harlan, Stewart, White, Clark

Ernesto Miranda confessed after two hours of interrogation without being told he could remain silent or have a lawyer present. His case was argued alongside three others raising the same question. The Court held that custodial interrogation is inherently coercive, and that the Fifth Amendment privilege against self-incrimination therefore requires warnings before questioning begins—the right to silence, that anything said may be used in court, the right to counsel, and appointed counsel for those who cannot afford one.

This is the hardest bench on the list. The Court split five to four, four Justices wrote separately in dissent, and the questioning went hard at the practical consequences: whether the Constitution really compels a script, and what a rule like this would do to law enforcement. Miranda himself was retried without the confession and convicted on other evidence.

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388 U.S. 1 · Decided June 12, 1967

Loving v. Virginia

May a state make it a crime for two of its residents to marry because of their races?

Argued

April 10, 1967

Vote

9–0

Opinion

Chief Justice Earl Warren

Counsel

Bernard Cohen & Philip Hirschkop

Richard Loving and Mildred Jeter married in Washington, D.C. in 1958 and returned home to Caroline County, Virginia, where the Racial Integrity Act of 1924 made their marriage a felony. Sheriff's deputies entered their bedroom at night and arrested them. The trial judge suspended a one-year sentence on the condition that they leave Virginia and not return together for twenty-five years.

Virginia's defense was symmetry: the statute punished the white and the non-white spouse identically, so it discriminated against no one. That argument had persuaded courts before, and it has to be answered head-on. The Court rejected it unanimously, striking the law under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment and describing marriage as one of the basic civil rights of man.

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343 U.S. 579 · Decided June 2, 1952

Youngstown Sheet & Tube Co. v. Sawyer

Can the President seize the nation's steel mills to keep them running during a war Congress never declared?

Argued

May 12–13, 1952

Vote

6–3

Opinion

Justice Hugo Black

Concurrence

Justice Robert Jackson

With a nationwide steelworkers' strike hours away and the Korean War under way, President Truman issued Executive Order 10340 directing Secretary of Commerce Charles Sawyer to take possession of the mills and keep them operating. Congress had considered and declined to authorize seizure when it passed the Taft-Hartley Act five years earlier. The steel companies sued.

The Court held that the President had neither statutory nor constitutional authority to take private property, even in wartime. The opinion that outlasted the case is Justice Jackson's concurrence, which sorted presidential power into three tiers depending on whether the President acts with congressional authorization, in its silence, or against its expressed will. It is now the standard framework in every separation-of-powers argument—so expect the bench to push you into it.

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393 U.S. 503 · Decided February 24, 1969

Tinker v. Des Moines Independent Community School District

Do public school students keep their First Amendment rights once they walk through the schoolhouse door?

Argued

November 12, 1968

Vote

7–2

Opinion

Justice Abe Fortas

Dissent

Justices Black and Harlan

In December 1965, John and Mary Beth Tinker and Christopher Eckhardt wore black armbands to school to mourn the dead in Vietnam and support a truce. Hearing of the plan, Des Moines principals adopted a rule banning armbands specifically. The students wore them anyway and were suspended.

The Court held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," and that school officials may restrict student expression only where it would materially and substantially disrupt the work of the school. The pressure in this argument runs the other way from the rest of the list: you must give the Court a rule that protects the armband without stripping principals of authority they plainly need.

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