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The Rule of Law and the Achievement of Unanimity in Brown

45 Pages Posted: 17 Jun 2005  

Stephen Ellmann

New York Law School


How did Justice Stanley Reed come to join the Supreme Court's unanimous decision in Brown v. Board of Education? It is clear from the historical record that Reed's first inclination was to uphold the constitutionality of racially segregated education, and clear as well that in the end he put this inclination aside and joined, without any public qualification, in the Court's decision banning segregation. Perhaps Reed changed his mind about the meaning of the constitution; perhaps he changed his mind about the legitimacy of judges' making social policy in the name of the constitution; perhaps he decided to uphold the Supreme Court's strength as an institution by helping make this momentous decision unanimous; perhaps (though this I particularly doubt) he explicitly or implicitly traded his vote in Brown I for anticipated concessions on the remedy issue that the Court would address in Brown II. The fascinating historical record is ultimately elusive, and exactly what happened will likely never be completely certain, but each of these possibilities raises important questions about the meaning of the "rule of law." I argue here, inter alia, that if Reed's thinking was swayed by the gentle personal touch of Earl Warren and other justices, that emotional impetus was no breach of the rule of law; that if he voted against his own view of the law for the sake of unanimity, this too was within the historical, and legitimate, bounds of Supreme Court justices' decisionmaking discretion; and that if, in voting as he did, he found himself having to disregard some deeply-held beliefs, such as his opposition to judicial policymaking, for the sake of others, this need to act in light of, or in the face of, crosscutting moral demands is ultimately a central part of the rule of law. It is possible to imagine judges obliged to breach the rule of law - in Nazi Germany, for example, or in ante-bellum fugitive slave cases in the United States - but I do not see Justice Reed as having faced such a situation. Instead, the rule of law, rightly understood as the complex and supple social structure that it is, provided room for the choice that he made.

Keywords: Rule of law, segregation, race, judicial ethics

Suggested Citation

Ellmann, Stephen, The Rule of Law and the Achievement of Unanimity in Brown. New York Law School Law Review, Vol. 49, pp. 741-784, 2004-2005. Available at SSRN:

Stephen Ellmann (Contact Author)

New York Law School ( email )

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