Brown v. Board of Education as a Disputing Process Lesson

supreme courtLast week, we were privileged to hear Professor Michael Klarman speak on “Why Brown v. Board of Education Was a Hard Case.”  This was one of the most enjoyable and interesting talks I have heard in a long time.  I highly recommend it, and you can click here to get the webcast.  My guess is that this would still be as funny and insightful on the audio.   There were two particular points that he made in reviewing the history of the case that linked to conflict resolution theory that I want to highlight here.

First, Klarman noted that, contrary to typical practice, the justices facing the Brown decision did not take a straw poll at their first conference discussing the case.  In fact, as he notes, by his count, there would have been only four votes to overturn Plessy at the beginning and nothing near the unanimity that the Court presented in its decision the following year.  What was the import of not taking this poll?  As Klarman notes, this allowed the justices to change their mind and to preserve fluidity in their thinking.  In other words, the justices did not lock themselves into an opening position that then they would feel necessary to defend throughout the discussions. 

The impact of publicly locking yourself in to an opening position is problematic, as we know. 

We see this in client counseling, when clients lock themselves into a perceived position from which we often must counsel them to see a different reality.  We see this in litigation, where, as Michael Moffitt has written, the complaint and response locks disputing parties into extremes.  And we see this in mediation, where the mediator often must perform reality testing so that clients and their counsel can gracefully change their position.   It’s pretty amazing to realize that the outcome of Brown (and arguably the path of civil rights following it) happened because somebody thought carefully about the process used.

A second interesting note in the Brown case was Justice Black’s importance to the case and his role reversal – his ability to truly understand white Southerners in a way that no other justice could.  Black was the only justice from the Deep South, a former KKK member, and the justice who knew best that segregation was based on the opinion that blacks were inferior (and not the professed justification of segregation serving both populations equally).   Because Justice Black could, better than anyone else, dismiss the arguments from the Deep South, he could carry more weight with his colleagues on this point.

Finally, one last irony.  One of the most hilarious aspects of Professor Klarman’s talk was hearing from him exactly how much this collection of justices disliked one another.  I won’t do the speech justice to only give one tidbit but here is one I loved:  When there was a particularly untalented lawyer in front of the court, Justice Douglas apparently used to bait Justice Frankfurter by sending a note to him that Douglas had heard this lawyer received one of the highest grades in Frankfurter’s classes at law school.  It is ironic that the members of this Court, who stunningly disdained one another at best, were able to reach a unanimous decision in this momentous case.

Cross posted at Indisputably.

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