Poetic Justice

Abstract

All deliberate speed, the remedial formula adopted in Brown v. Board of Education, 349 U.S. 294 (1955), has a singularly interesting literary lineage. Contrary to Justices Holmes and Frankfurter's assumption, all deliberate speed is not a phrase from the traditional language of the English Chancery, but rather a variant on a line from an 1893 poem by Francis Thompson, The Hound of Heaven. How Thompson's line, "Deliberate speed, majestic instancy," came to dominate one of the defining moments in American constitutional law represents a unique instance of not law-in-literature or law-as-literature, but literature-as-law. By turning our analysis away from the romanticized origins of all deliberate speed in a Chancery practice that never existed and toward the real poetry of Francis Thompson, we may glimpse how all deliberate speed and the Brown litigation achieved a measure of poetic justice. Brown II's instruction that public school districts dismantle desegregation with all deliberate speed gave Brown I's vision of equal justice under law enough time and enough legitimacy to enter the hearts and minds of the American people in a way unlikely ever to be undone.

Keywords: Brown v. Board of Education, Brown II, all deliberate speed, Oliver Wendell Holmes, Felix Frankfurter, Francis Thompson, The Hound of Heaven, law and literature