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Excerpted From: Gregory Briker and Justin Driver, Brown and Red: Defending Jim Crow in Cold War America, 74 Stanford Law Review 447 (March, 2022) (419 Footnotes) (Full Document)


BrikerAndDriverBrown v. Board of Education is the most thoroughly scrutinized and celebrated Supreme Court opinion in modern American history. It would be virtually impossible to overstate Brown's centrality to modern constitutional law, as leading scholars and jurists from across the ideological spectrum have argued that any viable theory of constitutional interpretation must accommodate the 1954 decision. Pamela Karlan has contended that “every constitutional theory must claim Brown for itself,” as a theory failing to do so gains no “traction.” Brown has become sacrosanct, with then-Judge Richard Posner calling it “the most esteemed judicial opinion in American history,” and Justice Stephen Breyer deeming it the Supreme Court's “finest hour.” Fifty years after the decision was announced, Judge Robert Carter, a litigator in Brown, described it as “one of the most important icons of American law,” for it “effected a revolutionary change in American life.” It is thus hardly an exaggeration to conclude, as J. Harvie Wilkinson III did, that “Brown may be the most important political, social, and legal event in America's twentieth-century history.”

In recent decades, the standard account of Brown has placed the decision in geopolitical context, portraying it largely as a product of the Cold War. On this view, the persistence of racial segregation became an international embarrassment in the American fight against communism after World War II. Jim Crow amounted to a public-relations disaster from the perspective of U.S. officials seeking to win the global confrontation of ideas, particularly in “Third World” nations where people of color made up the majority of the population. This concern led Americans with political power--from members of Congress and diplomats to presidents and judges--to conclude that Plessy v. Ferguson's doctrine of separate but equal must be jettisoned. In 1980, Derrick Bell introduced his interest-convergence theory, arguing that “[t]he interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites.” According to Bell, Brown exemplified interest convergence, with the Cold War playing an indispensable role in motivating white Americans to seek the end of school segregation. In law review articles and a subsequent book, Mary Dudziak offered extensive historical support for Bell's theory, finding evidence that federal officials consciously responded to international criticism of Jim Crow by embracing civil rights. Desegregation thus became a “Cold War imperative.” The Cold War--imperative thesis has found receptive audiences throughout the legal academy, with distinguished scholars and leading constitutional casebooks endorsing it.

This Article complicates and challenges this standard geopolitical account by emphasizing that a broad array of Americans viewed preserving, rather than destroying, Jim Crow as a Cold War imperative. Segregationist Cold Warriors contended that anticommunism required maintaining racial separation in the United States. They assailed integration as a product of central governmental authority, itself an apparent hallmark of communism that undermined American federalism. To segregationist ears, the death knells of “separate but equal” and of “states' rights” were one and the same. Communists purportedly celebrated the newly enfeebled states because an America with a single strong federal government was both more aligned with communism and easier to influence than one with dispersed, decentralized power structures. Segregationists further believed that integration would weaken the nation in a showdown against the Soviet Union by creating racial discord, internal disunity, and social strife. They feared that integrated classrooms would inexorably yield integrated bedrooms, spelling the end of American strength on the world stage by contaminating white racial purity. When it came to segregation in the United States, anticommunism cut both ways.

Crucially, these defenders of Jim Crow were not confined to the fringes of American public life. They included prominent government officials, current and former jurists, nationally syndicated columnists, and ordinary citizens. Former Supreme Court Justice and Secretary of State James Byrnes, Federal Bureau of Investigation (FBI) Director J. Edgar Hoover, and dozens of sitting governors and congressmen all linked anticommunism to segregation. Some of the Senate's main power brokers--including at least four future presidents pro tempore--endorsed these views. Proponents spoke in legal cadences, waging what one Alabama columnist termed a “constitutional cold war” against integration. The rhetoric of anticommunism was used to justify segregation in wide-ranging contexts, from Citizens' Council rallies to congressional galleries.

Legal scholarship has largely overlooked critical moments in which segregationists appealed to anticommunism. To take only one prominent example, scholars have thus far failed to note that before Brown at least one federal judicial decision explicitly invoked anticommunism to rationalize rejecting a challenge to separate but equal. Anticommunism was so ubiquitous among segregationists that Chief Justice Earl Warren was unsurprised when, in the wake of Brown, the Supreme Court received hundreds of pieces of hate mail--many of which condemned the decision as “pure Communism.” When the Court reconvened a year later to provide guidance on the enforcement of desegregation, several southern states submitted briefs that explained how anticommunism demanded either segregation or a gradual approach to integration.

The alleged connections between communism and civil rights proved essential to the segregationist worldview. Many white southerners fervently believed that Black and white people alike wanted to maintain the segregated status quo, and that both races benefited from Jim Crow. The stereotypical image of Black people as docile and submissive--an image older than the Civil War--dovetailed with the belief that they accepted and even cherished segregation. But tension existed between the claim that Black people did not want integration and the fact that legal and political challenges to racial segregation were occurring with increasing frequency. Anticommunism helped to resolve this tension: Though Black people did not truly desire integration, they had been manipulated into demanding civil rights by outside agitators. These agitators included northern “carpetbagger” activists and communist agents--groups that the segregationist mind conflated. The NAACP and the CCCP thus combined to create an utterly unappetizing alphabet soup, a concoction made up of intermingled, alien forces. Those forces, segregationists held, were bent on dismantling not just the southern way of life, but the American way of life, too.

Some white people could not even begin to fathom the idea that segregation actually harmed Black students. As a result, when the Brown Court cited social-science research to that effect in the notorious Footnote Eleven, segregationist commentators did not merely question its integrity or appropriateness in a legal decision. In fact, they also insisted that the social scientists that Brown relied upon were tainted by communist affiliations. To them, these allegations magnified Brown's danger: The decision pushed the country toward communism by authorizing federal intervention in local affairs, and it did so by endorsing false, communist-tinged evidence. While every law student learns about this most infamous footnote in constitutional law, an anticommunist lens is necessary to provide a complete picture of why, precisely, it proved so contentious.

The concern that communism and civil rights were entangled emerged predominantly in the South but resonated across the country. The fusion of anticommunism and segregation also long predated both the advent of the Cold War in the 1940s and the Red Scare that peaked during the 1950s, when anticommunist rhetoric attained its greatest potency. More than a decade before Joseph McCarthy took his seat in the U.S. Senate, federal lawmakers proclaimed that communists had infiltrated the civil rights movement and the legislative process. While some scholars assert that segregationists wielded anticommunism as simply a convenient political weapon--that they were anticommunists in name only argue that such dismissals misconstrue the opposition to integration. Segregationists undoubtedly prioritized the continuance of racial apartheid in America, but they cannot invariably be cast aside as disingenuous anticommunists. Upon reflection, it should not be astonishing that segregationists availed themselves of anticommunist rhetoric and ideas during the twentieth century given that the Cold War exerted a sort of gravitational pull on virtually all of American social, political, and legal life. But anticommunism was also more than a mere ornament for racist argumentation. Some segregationists doubtless employed anticommunist rhetoric as an empty, almost reflexive epithet; many others, however, developed detailed, sophisticated conceptions of why and how integration would benefit the communist cause.

The Cold War imperative contributed to the internationalizing of Brown and the broader civil rights movement. As Dudziak has argued, Brown should be understood as a “Cold War case.” We wholeheartedly agree. No hard line separates the histories of American foreign and domestic policy. Thus far, though, legal academia's efforts to place Brown in its Cold War context have focused on only one side of the coin: how American anticommunist interests paved the way for civil rights, particularly the advancement of formal racial equality. While the Cold War is most commonly understood as a contest between the United States and the Soviet Union for the hearts and minds of the “Third World,” we emphasize that it was also a contest of ideas within the United States. The defenders and opponents of Jim Crow engaged in an intense battle over which side could legitimately claim the mantle of Cold Warrior.

This element of the geopolitical story of Brown and the larger struggle for civil rights has been largely overlooked by the legal academy. Indeed, while a number of historians have incisively examined the fusion of anticommunism and segregation, legal scholars have dedicated virtually no sustained attention to segregationists' Cold War arguments. The term “massive resistance” is widely recognized as the white-supremacist strategy to undermine Brown. But few in legal academia appear to realize that the phrase itself was designed to evoke the Cold War concept of “massive retaliation.” That “massive resistance” has been severed from its etymological origins is emblematic of how severely anticommunist segregationism has been neglected in legal scholarship.

This Article pursues these claims in three Parts. Part I begins by briefly reviewing the Cold War--imperative thesis. An extension of interest convergence, the Cold War--imperative thesis argues that domestic advances in civil rights during the postwar era were motivated by American foreign policy concerns. While the United States sought to win over the “Third World,” it struggled to do so because of the international embarrassment caused by Jim Crow. As a result, the thesis contends, white Americans, particularly those wielding political power, came to view the demise of Jim Crow as in their interest. This theory has garnered broad acceptance within legal academia, but it seems to assume that anticommunism cohered more naturally with integration than with segregation. Part II challenges this assumption by presenting evidence that many Americans, including lay citizens and political leaders, insisted that segregation, not integration, was the true Cold War imperative. These arguments predated Brown itself, appearing pervasively in political speeches, newspaper columns, judicial decisions, and legislative actions. The ubiquity of such arguments made sense at the time, as they helped both to nationalize the defense of racial segregation and to resolve central tensions within the white-supremacist view of Black citizens. Part III steps back to examine the implications of observing the opposition to Brown and the civil rights movement through the lens of anticommunism. From a historical perspective, this richer understanding recasts our perceptions of the civil rights era by challenging the standard distinction between cases regarding race and cases regarding communism and by underscoring the need to investigate the losing sides of landmark Supreme Court cases. It contributes to debates over the nature of legal change by highlighting variance within white interests and the contingent nature of Brown. And it demonstrates how racist ideas evolve and extend their lifespan and appeal by interacting with other political forces.

This Article brings to the fore disturbing arguments against the efforts of Black Americans to achieve racial equality. In so doing, we aim to understand, but in no way excuse, these racist attacks and the offensive language that accompanied them. Jim Crow, and the efforts by white supremacists to prolong it, were quite simply abominations. That defenders of Jim Crow appealed so extensively to anticommunism nevertheless warrants the attention of legal audiences. Scholars ought to investigate precisely which claims segregationists deployed, and how those claims shaped the broader landscape of race relations and civil rights law in the United States. We believe that studying the opposition to Brown and the civil rights revolution can deepen and transform our understanding of a critical period in American legal history. Only by reckoning with that ugly history can we fully comprehend the profound ways it continues to shape our world today.

[. . .]

Whether or not history is ultimately written by the victors, it is most often written about them. Brown has been examined from innumerable vantage points since the 1950s. The decision's losers, however, are still too often caricatured, disregarded, or even ignored altogether. In recent decades, legal scholars have produced valuable work that seeks to place Brown in a geopolitical context, emphasizing the convergence of anticommunism and civil rights reform during the Cold War. But as this Article has illustrated, many steadfast opponents of civil rights simultaneously identified as fervent anticommunists. For segregationists, those two causes were not at odds, but instead went hand in glove. Those who sought first to avert and then reverse the demise of Jim Crow did so by invoking the nation's campaign against communism at home and abroad. Segregationists--from judges to columnists to duly elected officials to lay citizens from both the North and the South-- positioned themselves as Cold Warriors, undertaking an intertwined fight against a foreign ideological threat and a domestic social one. It was far from obvious to many Americans that desegregation created a Cold War imperative. Instead, they framed Cold War considerations as demanding Jim Crow.

Investigating the losing side of this iconic legal event in American history is a vital intellectual endeavor because of what this investigation illuminates. The fusion of anticommunism and segregation resolved significant tensions in the racist worldview that struggled to understand why Black citizens who theoretically liked Jim Crow sought to destroy it. Anticommunism broadened the appeal of segregation well beyond communities in the South by transforming the quest to retain racial apartheid from a regional obsession into a national security priority. With these dynamics in view, scholars can add nuance to their understandings of the Brown era, the Warren Court, and prominent theories of constitutional change. There is no doubt that Jim Crow's defenders, like its opponents, were motivated by a wide variety of factors. Highlighting anticommunism among those factors sheds light on the ferocity of the opposition to racial equality--in both its historical and contemporary dimensions.

Gregory Briker is a J.D. Candidate, Yale Law School, 2024; Ph.D. Student, Yale University Department of History.

Justin Driver is the Robert R. Slaughter Professor of Law, Yale Law School.

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