WEBVTT - 70 Years of Brown v. Board of Education 0:00:16.115 --> 0:00:16.555 Pushkin. 0:00:21.715 --> 0:00:26.155 We come then to the question presented, does segregation of 0:00:26.355 --> 0:00:30.115 children in public schools solely on the basis of race, 0:00:30.475 --> 0:00:34.875 even though the physical facilities and other tangible factors may 0:00:34.915 --> 0:00:39.035 be equal, deprive the children of the minority group of 0:00:39.155 --> 0:00:43.515 equal educational opportunities. 0:00:45.715 --> 0:00:53.235 I'm having flashbacks. So okay, what are we listening to? 0:00:53.395 --> 0:00:55.555 Why are we here for this very special day? 0:00:55.995 --> 0:01:00.875 So May seventeenth, seventieth, the anniversary of Brown v. Board 0:01:00.875 --> 0:01:04.915 of Education, Chief Justice Earl Warren hands down the opinion 0:01:04.955 --> 0:01:10.675 in the momentous series of consolidated school segregation cases in 0:01:10.715 --> 0:01:14.435 which the Supreme Court declared segregation on constitutional a violation 0:01:14.515 --> 0:01:17.555 of the fourteenth Amendment. The crazy thing is we are 0:01:17.675 --> 0:01:23.555 listening to not the actual opinion issued by Earl Warren, 0:01:23.755 --> 0:01:27.435 because these cases were not recorded, were just on the edge, 0:01:27.555 --> 0:01:31.195 just on the eve of the Supreme Court instituting the 0:01:31.195 --> 0:01:38.875 practice of recording oral arguments. So the OYA project, which 0:01:39.075 --> 0:01:42.875 is I love, is a project started by this guy, 0:01:42.955 --> 0:01:48.835 Jerry Goldman, a political scientist, hero of evidence and justice, 0:01:49.195 --> 0:01:52.715 who decided to make available to kind of research and 0:01:52.715 --> 0:01:56.635 pull together all of the audio of all the Supreme 0:01:56.675 --> 0:02:01.675 Court opinions and oral arguments where those existed as recordings. 0:02:02.235 --> 0:02:05.315 It's all free and online at the OYA Project. It's 0:02:05.355 --> 0:02:07.915 this amazing resource. I use it all the time. I 0:02:07.995 --> 0:02:10.795 now never just go read Spreme Court opinion. I go 0:02:10.835 --> 0:02:12.395 listen to the oral arguments because of. 0:02:12.355 --> 0:02:16.195 The day A consummates. 0:02:16.675 --> 0:02:18.835 Yeah, they're great. Like, it's an incredible thing that the 0:02:18.835 --> 0:02:24.915 OYA Project exists, and it's really hugely meaningful historical record. 0:02:25.715 --> 0:02:30.435 So Jerry Goldman got really interested in what it meant 0:02:30.435 --> 0:02:32.795 that there's an absence of a record for Brown v. 0:02:32.995 --> 0:02:36.515 Board of Education, because it's so important, and because we 0:02:36.555 --> 0:02:40.795 also have the voices of the main participants. Earl Warren 0:02:40.795 --> 0:02:42.795 had been governor of California. The we have plenty of 0:02:42.835 --> 0:02:46.835 recordings of Earl Warren's voice before he was appointed to 0:02:46.875 --> 0:02:50.555 the court by Eisenhower, after he was on the court. 0:02:50.995 --> 0:02:53.635 But what we were just listening to was not the 0:02:54.195 --> 0:02:59.275 opinion issued by Earl Warren, but a recreation of Earl 0:02:59.315 --> 0:03:02.795 Warren's voice that is driven by a kind of really 0:03:02.835 --> 0:03:09.715 interesting and surely increasingly common recreation of the transcript voice 0:03:10.275 --> 0:03:14.955 actors reading the transcript and giving it emotional inflection and 0:03:14.995 --> 0:03:20.035 pacing and tone, and then an ai recreated voice kind 0:03:20.035 --> 0:03:21.435 of overlaid onto that. 0:03:21.675 --> 0:03:23.715 Like a mask I think is the term they use, 0:03:23.875 --> 0:03:26.395 that it's the sort of performance within a mask on it. 0:03:27.115 --> 0:03:31.795 I love that. It's very Batman and so I guess 0:03:31.555 --> 0:03:35.155 there's a number of reasons why it feels so right 0:03:35.275 --> 0:03:39.635 to celebrate this anniversary on the Last Archive today. One 0:03:39.755 --> 0:03:46.075 is that we are inveterate reenactors of trials, sometimes hits, 0:03:46.155 --> 0:03:50.315 sometimes misses. And then another is that Brown verse Board 0:03:50.315 --> 0:03:53.475 of Education is really central to the inquiry of the show. 0:03:53.595 --> 0:03:56.395 So much of the sort of epistemological backlash of the 0:03:56.395 --> 0:04:00.075 twentieth century, at least the bad faith backlash is a 0:04:00.115 --> 0:04:03.875 response to Brown and all these themes of brainwashing and 0:04:03.915 --> 0:04:07.555 the kind of different cultures of knowledge emerging after the 0:04:07.595 --> 0:04:10.755 mid twentieth century. It feels like it all comes out 0:04:10.755 --> 0:04:12.755 of this this moment which a lot builds up to. 0:04:13.275 --> 0:04:13.435 Well. 0:04:13.435 --> 0:04:15.915 And then of course the third reason is just artificial 0:04:15.915 --> 0:04:17.675 intelligence and how you know what you know? So it's 0:04:17.715 --> 0:04:20.515 this very yeah, last archivy combination of things. 0:04:20.915 --> 0:04:23.955 So you will remember Ben that for the Last Archive. 0:04:24.075 --> 0:04:27.355 Second season second with the Scopes tra Yeah, yeah. 0:04:27.115 --> 0:04:29.875 So the Scopes Trial in nineteen twenty five somewhat similar 0:04:29.875 --> 0:04:34.635 to the Brown case in that it was recorded and 0:04:35.355 --> 0:04:38.715 was the first criminal trial ever broadcast on the radio. 0:04:38.795 --> 0:04:41.315 It was broadcast nationwide. It was a huge phenomen People 0:04:41.315 --> 0:04:44.755 sat around and listened to the Scopes trial, but none 0:04:44.795 --> 0:04:51.755 of the radio broadcast was recorded, devastating. So like it is, 0:04:52.115 --> 0:04:54.595 it is actually really interesting to think about it as 0:04:54.635 --> 0:04:57.715 a listening experience because that's how people experienced it, and 0:04:57.795 --> 0:05:03.115 yet we clen't recapture that. And so similarly, like Clarence Darrow, 0:05:03.315 --> 0:05:06.195 like we have the William Jennings Bryan, the two attorneys 0:05:06.195 --> 0:05:09.115 who argued the case. We have their voices. Their voices 0:05:09.115 --> 0:05:12.515 are recorded, we know what they sounded like. So we, 0:05:12.715 --> 0:05:19.195 without any ethical hesitation whatsoever, wide and recreated the Scopes trial. 0:05:19.035 --> 0:05:21.755 With actors via zoom because it was the early days 0:05:21.755 --> 0:05:24.035 of the pandemic. So we were one step closer to 0:05:24.075 --> 0:05:27.595 a fully artificially intelligent voice acting experience. 0:05:28.035 --> 0:05:30.555 So you know, we never I can't recall us ever 0:05:30.595 --> 0:05:33.555 having conversations reason not to do that. I mean, anyway, 0:05:33.595 --> 0:05:35.595 inherit the wind already exists and people think, so. 0:05:35.755 --> 0:05:37.595 Okay, no, but this I think is that is a 0:05:37.595 --> 0:05:39.915 crucial I think the inherit the wind thing is a 0:05:39.915 --> 0:05:44.315 crucial point because to me, there's this ipe craze in Hollywood. 0:05:44.435 --> 0:05:48.195 People are increasingly making films based on real events. There's 0:05:48.395 --> 0:05:51.875 a kind of historical acting style that emerges when people 0:05:52.035 --> 0:05:55.435 have a lot of access to audio visual material, and 0:05:55.475 --> 0:05:58.835 it's exemplified by something like Bradley Cooper and Maestro performing 0:05:58.875 --> 0:06:01.395 as Leonard Bernstein, where you know famously he spent like 0:06:02.035 --> 0:06:06.475 years studying film of his conducting style so he could 0:06:06.475 --> 0:06:10.475 like perfectly do the movements. To me, it that turns 0:06:10.515 --> 0:06:13.715 out to be something more like mimicry than real acting 0:06:14.035 --> 0:06:17.955 or sort of real dramatic interpretation, something like Inherit the Wind, 0:06:18.595 --> 0:06:21.755 we should say, the famous nineteen sixty film re enacting 0:06:21.795 --> 0:06:26.955 the Scopes Trial starring an amazing Spencer Tracy. It bears 0:06:26.995 --> 0:06:28.795 almost no resemblance. 0:06:28.235 --> 0:06:30.195 To the actual history, right, totally free rate. 0:06:30.155 --> 0:06:31.515 But it's totally transporting. 0:06:31.635 --> 0:06:33.755 Yeah, I know it's interesting, but I think too one 0:06:33.755 --> 0:06:36.315 of the things that differentiates say, Inherit the Wind from 0:06:36.435 --> 0:06:40.915 Maestro is Inherit the Wind maybe like a performance of 0:06:40.915 --> 0:06:44.835 the Crucible, right, very much an updating of the story 0:06:44.995 --> 0:06:47.795 for our own times. Right, it isn't about a kind 0:06:47.795 --> 0:06:52.835 of backward looking Oh, let's transport ourselves to nineteen twenty 0:06:52.835 --> 0:06:56.595 five and be in the Scopes trial. It's let's offer 0:06:56.675 --> 0:06:59.755 up a moral fable that can help us understand McCarthyism. Right, 0:06:59.875 --> 0:07:04.115 It's not about emulation, it's about adaptation, which has this 0:07:04.195 --> 0:07:08.155 weird analog and constitutional interpretation, right, like do we look 0:07:08.195 --> 0:07:11.235 backward at what the frame of the Constitution or the 0:07:11.235 --> 0:07:15.275 fourteenth Amendment meant and intended and what they understood by 0:07:15.315 --> 0:07:17.235 the words that they said, or do we adapt those 0:07:17.235 --> 0:07:20.195 things for our own time. So that's what's the sort 0:07:20.235 --> 0:07:22.995 of weird free selling around, like, oh, it's cool to 0:07:23.115 --> 0:07:27.875 use these technologies to look backward, but also for what purposes? 0:07:28.035 --> 0:07:30.955 Well, this also it's sort of presented as a podcast. 0:07:31.315 --> 0:07:35.395 The narrator her name is Karen Grigsby Bates. She's from 0:07:35.475 --> 0:07:40.075 NPR both independently. Had sense that she sounds like a 0:07:40.115 --> 0:07:41.195 young Nina Totenberg. 0:07:41.555 --> 0:07:44.675 Let's pause here for a quick explanation of what you're hearing. 0:07:45.315 --> 0:07:48.595 No microphones were recording Warren's words that day in nineteen 0:07:48.675 --> 0:07:51.235 fifty four. I just feel so taken care of. 0:07:51.955 --> 0:07:53.835 I would believe anything that was told me. 0:07:53.955 --> 0:07:57.195 It's good to tell me. So this is why I 0:07:57.235 --> 0:08:01.395 have come out of my sabbatical to record a one 0:08:01.435 --> 0:08:03.635 off episode of the Last Art Time with you, just 0:08:03.635 --> 0:08:06.475 to think about how interesting this is. It really does 0:08:07.435 --> 0:08:09.755 raise all kinds of questions for historical research and history 0:08:10.115 --> 0:08:12.515 storytelling too, that I know, we you know, won't have 0:08:12.555 --> 0:08:15.435 time to get into. But I decided I would try 0:08:15.515 --> 0:08:18.795 to find out whether one of the voices at least 0:08:19.115 --> 0:08:22.555 is accurate. But I wrote to four people I know 0:08:22.595 --> 0:08:25.355 who were martial clerks, and I asked them to listen 0:08:25.395 --> 0:08:29.235 to the recreated martial voice, and three of them said 0:08:29.235 --> 0:08:33.475 more or less the same thing, which was that Marshall 0:08:33.595 --> 0:08:36.915 famously could speak in many different voices, that he had 0:08:36.915 --> 0:08:38.915 different accents that he could put on. I mean, he 0:08:38.955 --> 0:08:40.355 grew up in Baltimore, but he had worked as a 0:08:40.395 --> 0:08:43.035 pullman porter, you know, when he went and argued cases 0:08:43.035 --> 0:08:45.115 in the South, he kind of deliberately sounded a little 0:08:45.155 --> 0:08:47.795 bit more like a Southerner. But in a court room, 0:08:47.835 --> 0:08:51.035 and certainly in the Supreme Court, he spoke in impeccable 0:08:51.435 --> 0:08:55.955 enunciated Queen's English. Martha Minno told me that people come 0:08:55.955 --> 0:08:58.155 from miles around just to hear a third good Marshall 0:08:58.275 --> 0:09:01.675 argue in court, just because of the nature of the performance. 0:09:02.395 --> 0:09:06.795 But you know, Harry Littman, who was also a Marshall clerk, 0:09:06.835 --> 0:09:09.235 who's the host of the amazing podcast Talking Feds that 0:09:09.315 --> 0:09:13.515 I'm obsessed with, he heard the recreated Marshal voice as 0:09:13.515 --> 0:09:17.195 something of like something of a mashup of Marshall's many 0:09:17.235 --> 0:09:21.915 different speaking styles. Cas Sunstein told me, you know, that 0:09:22.115 --> 0:09:24.755 sounds a bit like when I knew him, but I'm 0:09:24.835 --> 0:09:28.915 not super close. And then Randy Kennedy, a law school 0:09:28.915 --> 0:09:33.515 professor at Harvard as well and a former Marshall clerk, said, 0:09:33.195 --> 0:09:35.275 if you had not told me that the voice was 0:09:35.315 --> 0:09:37.715 AI generated out of sworn that it was the real 0:09:38.395 --> 0:09:39.195 third Good Marshal. 0:09:39.915 --> 0:09:42.395 Something that's interesting to me though about this. I love 0:09:42.435 --> 0:09:45.035 hearing the reports of people who actually knew him, but 0:09:45.075 --> 0:09:50.075 it also foregrounds for me this kind of maybe naive 0:09:50.115 --> 0:09:53.155 to say, but incredible to me, fact that Brown resportive 0:09:53.235 --> 0:09:56.395 education as a ruling well within the span of a 0:09:56.475 --> 0:09:59.755 human lifetime. I mean, this is the seventieth anniversary, but 0:09:59.755 --> 0:10:02.315 you're actually going to talk to a scholar, Kenneth Mack 0:10:02.395 --> 0:10:06.235 from Harvard Law School who studies round resportive education now 0:10:06.275 --> 0:10:07.995 about the significance of the case. 0:10:08.275 --> 0:10:13.315 Yeah, So, Ken, this amazing. He is just an incredibly 0:10:13.395 --> 0:10:17.955 astute constitutional analyst, but he's also a legal historian, and 0:10:17.995 --> 0:10:21.235 he's wrote this really amazing book on civil rights lawyering 0:10:21.475 --> 0:10:25.235 and what it means to sort of try to represent 0:10:25.315 --> 0:10:29.515 a race. So I wrote to Kenna say, like, this 0:10:29.595 --> 0:10:32.355 is this crazy brown thing is coming out? What do 0:10:32.395 --> 0:10:33.155 you make of it? 0:10:36.235 --> 0:10:36.355 Hi? 0:10:36.475 --> 0:10:36.795 Ken? 0:10:37.475 --> 0:10:39.835 Hey, how are you good? 0:10:39.915 --> 0:10:40.475 Good? 0:10:41.035 --> 0:10:41.235 Good? 0:10:41.275 --> 0:10:43.035 Thank you so much for doing this. I will confess 0:10:43.115 --> 0:10:46.155 I'm completely fascinated by this project of trying to recreate 0:10:46.275 --> 0:10:50.075 the entire audio landscape of Brown v. Board of Education. 0:10:51.955 --> 0:10:54.075 So I wanted to ask you a little bit first though, 0:10:54.355 --> 0:10:57.155 what the NAACP's legal strategy was here. 0:10:58.155 --> 0:11:01.875 Okay, all right, So the background for Brown versus the 0:11:01.955 --> 0:11:09.395 Board of Education. The NAACP is the principal of civil 0:11:09.435 --> 0:11:14.355 rights organization in the United States. Found in the early 0:11:14.395 --> 0:11:18.995 twentieth century. By the nineteen thirties, the NAACP it began 0:11:19.075 --> 0:11:23.515 to focus some of its energies on school desegregation. The 0:11:23.595 --> 0:11:28.915 attack on segregated schools was led by two lawyers, one 0:11:28.955 --> 0:11:32.035 of which was Thurgood Marshall, who had eventually become the 0:11:32.035 --> 0:11:35.835 first black Supreme Court justice, and the other of which 0:11:35.995 --> 0:11:41.635 was Charles Hamilton Houston, who was a black Harvard Law 0:11:41.675 --> 0:11:45.355 School graduate. So the two of them began filing cases 0:11:45.435 --> 0:11:49.835 in the nineteen thirties about schools, but most of them 0:11:49.835 --> 0:11:53.435 were school equalization cases. So you've got a black school 0:11:54.475 --> 0:11:57.035 in which the teachers are paid X at a white 0:11:57.035 --> 0:12:00.035 school in which the teachers are paid Y. So we 0:12:00.155 --> 0:12:02.875 followed suit to try to get the teachers paid equally. 0:12:03.035 --> 0:12:04.915 There are a number of cases they bring that are 0:12:04.955 --> 0:12:09.515 about primary secondary schools. Okay, we want equal salaries for 0:12:09.555 --> 0:12:12.675 Blackack and white teachers or equal facilities for black and 0:12:12.675 --> 0:12:18.115 white schools within the system of segregation. But there are 0:12:18.115 --> 0:12:26.035 a bunch of university cases. The NACP challenges Missouri's practice 0:12:26.355 --> 0:12:30.035 of excluding black people from its law school. You know, 0:12:30.115 --> 0:12:32.235 there is no black law school and the white law 0:12:32.315 --> 0:12:37.475 school is whites only. So the NACP brings a case saying, okay, 0:12:37.635 --> 0:12:40.995 well there's no black law school, we should bit black 0:12:41.035 --> 0:12:44.955 people to the white law school. And Supreme Court decides 0:12:44.995 --> 0:12:47.755 in favor of the NAACP in that case. 0:12:48.875 --> 0:12:51.275 Which because there's no question, there's no question of equality 0:12:51.315 --> 0:12:52.235 when there's an absence. 0:12:53.275 --> 0:12:56.035 Yeah, yeah, So the it's still within separate but equal, right, 0:12:56.075 --> 0:13:00.515 because theoretically, if you built a black law school in Missouri, 0:13:00.915 --> 0:13:04.675 you know, that would be okay within separate but equal, 0:13:04.755 --> 0:13:07.235 But there is no black law school. In fact, to 0:13:07.275 --> 0:13:11.275 build a black law school would be fantastically defensive. So 0:13:11.635 --> 0:13:14.595 the logic of the case is actually an attack on separate 0:13:14.595 --> 0:13:18.435 but equal, because you know, you can't build separate everything, 0:13:18.635 --> 0:13:23.875 right law schools, dental schools, et cetera, et cetera. And 0:13:23.915 --> 0:13:26.955 so that begins to set the stage for the cases 0:13:26.955 --> 0:13:29.115 that would become brown versus more of education. 0:13:30.035 --> 0:13:32.995 So one of the things I love about these cases 0:13:33.275 --> 0:13:36.595 is there's so much human drama. You know, Robert Jackson 0:13:36.595 --> 0:13:39.035 has a heart attack, Fred Vinson just up and dies. 0:13:39.235 --> 0:13:42.835 You know, the court changes, the cases argued more than once. 0:13:43.555 --> 0:13:45.755 You know, there's like the drama of the day itself. 0:13:45.835 --> 0:13:48.555 May seventeenth, nineteen fifty four, and the kind of you 0:13:48.635 --> 0:13:50.475 get this real sense the country is on the edge 0:13:50.515 --> 0:13:53.155 of its seat about the case at that point. But 0:13:53.275 --> 0:13:55.475 then you know this from the historians point of view, 0:13:55.475 --> 0:13:57.595 it's quite frustrating that none of this was recorded, and 0:13:57.595 --> 0:14:00.275 it's just on the edge of when the court begins 0:14:00.395 --> 0:14:03.915 recording its proceedings. So one of the things that I 0:14:03.915 --> 0:14:07.235 think is really interesting about this OIA project attempts to 0:14:07.275 --> 0:14:11.715 recreate the audio of it all, is can that sense 0:14:11.955 --> 0:14:18.035 of human drama be captured with like artificially intelligent driven 0:14:18.515 --> 0:14:22.035 recreation of voices. Let's listen to a little clip of 0:14:22.035 --> 0:14:26.155 one of the recreated scenes, and then I don't kind 0:14:26.155 --> 0:14:27.435 of want to hear your reaction to it. I think 0:14:27.475 --> 0:14:32.995 this is from Spotswood Robinson arguing in the court. 0:14:34.115 --> 0:14:36.355 I think it is very clear that the frame was 0:14:36.395 --> 0:14:39.315 intended to destroy the black Codes. I think it is 0:14:39.395 --> 0:14:41.875 clear that they intended to deprive the states of all 0:14:41.915 --> 0:14:45.155 power to enact similar laws in the future. I think 0:14:45.195 --> 0:14:48.475 the evidence overall is clear that it was contemplated and 0:14:48.715 --> 0:14:51.675 understood that the state would not be permitted to use 0:14:51.715 --> 0:14:55.515 its power to maintain a class or caste system based 0:14:55.595 --> 0:14:59.075 upon race or color, and that the Fourteenth Amendment would 0:14:59.075 --> 0:15:03.075 operate as a prohibition against the imposition of any racial 0:15:03.075 --> 0:15:05.675 classification in respect of civil rights. 0:15:06.955 --> 0:15:08.795 So, yeah, what's your reaction to that. 0:15:10.195 --> 0:15:13.835 Well, it's a lot of fun to hear to pretend 0:15:13.835 --> 0:15:18.355 ones hearing spots with Robinson. You know, he's from Virginia. 0:15:18.435 --> 0:15:21.035 It sort of sounds like what he would sound like. 0:15:21.195 --> 0:15:24.315 Maybe although I never met him, so I don't really know. 0:15:26.515 --> 0:15:30.355 To me, it's like listening to a movie traumatization, like 0:15:30.915 --> 0:15:34.595 this is not Spotswood Robinson, but maybe you get a 0:15:34.675 --> 0:15:37.275 sense of what it might have been like to have 0:15:37.355 --> 0:15:37.835 heard him. 0:15:38.035 --> 0:15:38.395 Yeah. 0:15:38.595 --> 0:15:41.795 Yeah, there's a kind of combination of an actor underlay 0:15:41.835 --> 0:15:46.595 and then some ai overlay in these voices. But thinking 0:15:46.635 --> 0:15:49.235 about I'd love to hear more about what it meant 0:15:49.275 --> 0:15:53.995 for someone like Robinson to do the work of lawyering. 0:15:55.035 --> 0:15:59.195 Is there something about how you would imagine hearing that 0:15:59.555 --> 0:16:02.155 or the way that that would come across in an argument. 0:16:03.955 --> 0:16:06.555 I guess, like I'm not sure. It kind of gets 0:16:06.595 --> 0:16:09.515 me there, that voice, right, Like there's something about the 0:16:10.355 --> 0:16:12.155 the stakes. 0:16:12.915 --> 0:16:17.235 Yeah, it's it's it's every time these black lawyers go 0:16:17.315 --> 0:16:20.035 to court in these civil rights cases, there's a lot 0:16:20.075 --> 0:16:23.675 of drama just from the from the basic trial court 0:16:23.915 --> 0:16:28.795 to the Supreme Court because in every case, you know, 0:16:28.955 --> 0:16:33.275 in these courtrooms, there's never been a black person to 0:16:33.395 --> 0:16:38.075 do this kind of thing. There are very few black lawyers. 0:16:38.555 --> 0:16:42.875 If their good marshall goes to court in Virginia or 0:16:42.955 --> 0:16:47.275 somewhere else in the South, nobody's ever seen a black lawyer. 0:16:47.395 --> 0:16:50.755 Usually and nobody's seen a black layer talk to white 0:16:50.755 --> 0:16:53.675 people the way that Thirgod Marshal gets to talk to 0:16:53.715 --> 0:16:58.395 white people in court. But at the same time, you know, 0:16:58.835 --> 0:17:02.195 there's a bunch of cases where Marshall's not sure if 0:17:02.195 --> 0:17:06.235 he's going to be lynched for coming to court, and 0:17:06.315 --> 0:17:09.195 in one case he almost is lynched and it's just 0:17:09.235 --> 0:17:12.715 saved by one of his colleagues. So there's things like 0:17:12.755 --> 0:17:17.355 that you just can't reconstruct, right, just the drama of 0:17:17.435 --> 0:17:17.995 that moment. 0:17:18.155 --> 0:17:21.555 Yeah, let's listen to Marshall for a minute. What I 0:17:21.555 --> 0:17:24.435 want to do is play this Ai Marshall, and then 0:17:24.475 --> 0:17:27.915 we can listen to actual Marshal from the same year, 0:17:27.955 --> 0:17:32.075 from fifty four, and see what you think. 0:17:32.915 --> 0:17:34.995 There is nothing in the debates that will hint in 0:17:35.035 --> 0:17:38.435 the slightest that they did not mean complete equality. They 0:17:38.475 --> 0:17:41.515 said so to raise the Negro up into the status 0:17:41.515 --> 0:17:44.515 of complete equality with the other people. That is the 0:17:44.595 --> 0:17:47.555 language they used. Substantial as a word. It was put 0:17:47.595 --> 0:17:50.875 into the fourteenth Amendment by Plessy versus Furguson, and I 0:17:50.915 --> 0:17:53.555 cannot find it, and it cannot be found in any 0:17:53.595 --> 0:17:54.595 place in the debates. 0:17:55.835 --> 0:17:59.875 Okay, can we listen to the actual Marshal from the 0:17:59.955 --> 0:18:00.595 same period. 0:18:01.555 --> 0:18:06.475 Despite the progress that's been made in twenty years, despite 0:18:07.675 --> 0:18:12.635 the fondest hopes of a lot of people, we have 0:18:12.755 --> 0:18:18.395 got before us a job for the future, and it's 0:18:18.515 --> 0:18:23.515 not the type of job that can be solved solely 0:18:23.715 --> 0:18:27.755 by government. It's a type of job that has to 0:18:27.795 --> 0:18:32.515 be solved by individuals working on individuals. 0:18:33.115 --> 0:18:33.995 I don't know, what do you think. 0:18:35.115 --> 0:18:40.395 It's so striking that the two they don't quite sound alike. 0:18:40.835 --> 0:18:45.795 They're similar, but also like, I know what Marshall sounded 0:18:45.915 --> 0:18:48.795 like later in life. I didn't meet him, but he's 0:18:48.835 --> 0:18:51.635 more gravely, like yeah, yeah, his voice is deeper later 0:18:51.675 --> 0:18:57.115 in life. He his accent changes. So that's the other 0:18:57.155 --> 0:18:59.915 thing you just can't capture. You don't know what he 0:19:00.035 --> 0:19:04.115 sounded like in court because everybody said that when he 0:19:04.235 --> 0:19:06.635 was in when he was in the South, he would 0:19:06.675 --> 0:19:11.595 get a real Southern accent. Now when he's in a 0:19:11.595 --> 0:19:12.755 Supreme court, he probably doesn't. 0:19:12.955 --> 0:19:14.315 Yeah, but we don't. 0:19:14.115 --> 0:19:17.315 Actually know that he's arguing with John W. Davis, you 0:19:17.355 --> 0:19:21.555 know who knows. Yeah, So we can't capture that yeah aspect. 0:19:22.515 --> 0:19:26.035 Yeah, like he just was like a consummate code switcher, 0:19:26.595 --> 0:19:29.195 which I guess We're not surprising when you think about 0:19:29.235 --> 0:19:30.915 the kind of roles that he was playing, as you say, 0:19:30.955 --> 0:19:33.835 and also traveling and speaking into different audiences. 0:19:35.835 --> 0:19:37.875 We'll be back with more in just a minute. 0:19:42.595 --> 0:19:43.995 I kind of want to go back to the case 0:19:44.035 --> 0:19:49.275 itself and think about how close was Brown to being 0:19:49.315 --> 0:19:50.475 decided differently. 0:19:52.275 --> 0:19:55.555 Yeah, we don't know how close Brown was to being 0:19:55.555 --> 0:20:00.995 decided differently. We know that the first time it was argued, 0:20:02.435 --> 0:20:07.355 it looks like maybe four justices were in favor of 0:20:07.595 --> 0:20:12.795 overturning school segregation, and maybe two were in favor of 0:20:12.835 --> 0:20:16.195 affirming it, and the others, including Felix Frankfurter, we don't 0:20:16.235 --> 0:20:20.755 really know. So there's a lot of accidents, you know, 0:20:20.875 --> 0:20:25.115 like this is history, right, History is you know, a 0:20:25.115 --> 0:20:27.235 bunch of things happened, and some of them are planned, 0:20:27.275 --> 0:20:29.115 and some of them are accidents, and some of them, 0:20:29.475 --> 0:20:33.795 you know, an accident happens and then somebody takes advantage 0:20:33.995 --> 0:20:37.795 of it and pushes it. So our main accident, of course, 0:20:37.915 --> 0:20:41.795 is that Chief Justice Vincent dies and Brown is re 0:20:41.955 --> 0:20:47.235 are argued, and in the second argument, the NAACP is 0:20:47.235 --> 0:20:49.715 a lot more aggressive also, and you know what they 0:20:49.795 --> 0:20:53.275 ask for and the kind of claims they make about 0:20:53.275 --> 0:20:57.195 the original understanding of the fourteenth Amendment as prohibiting school segregation. 0:20:58.275 --> 0:21:03.515 So these are all accidents. It was, you know, the 0:21:03.995 --> 0:21:07.395 cases themselves were often accidents in the sense that the 0:21:07.475 --> 0:21:10.915 cases kind of evolved. You know, the South Carolina case 0:21:10.995 --> 0:21:16.035 breaks versus delegate starts with a request for a school bus, like, Okay, 0:21:16.475 --> 0:21:19.315 if they gave the black kids a school bus, then 0:21:19.435 --> 0:21:20.875 maybe the whole thing would have been different. 0:21:21.835 --> 0:21:26.115 I've been reading about, you know, that day and people's expectations, 0:21:26.115 --> 0:21:28.075 a sort of reporter scrambling to go down to the 0:21:28.115 --> 0:21:31.555 courthouse because finally this decision was going to be issued. 0:21:31.595 --> 0:21:33.195 You know, it had been argued twice, it had been 0:21:33.195 --> 0:21:35.915 in the news for a long time. The country's really 0:21:35.995 --> 0:21:37.515 kind of on the edge of its seat about what 0:21:37.555 --> 0:21:42.595 this decision is is going to look like. I was 0:21:42.635 --> 0:21:45.915 reading the biography of Ethel Payne, who was the Washington 0:21:46.235 --> 0:21:49.875 reporter for the Chicago Defender, and she had gone down 0:21:49.915 --> 0:21:52.675 with the press and she talks about, you know, it 0:21:52.755 --> 0:21:55.835 was noontime that the court was called into session, and 0:21:55.875 --> 0:21:59.395 at the minute it became clear which way the decision 0:21:59.475 --> 0:22:04.435 was going to go. When Warren got to you know, 0:22:04.475 --> 0:22:07.595 a particular point in issuing the opinion, which he of 0:22:07.595 --> 0:22:11.475 course read out loud that everybody the room already looked 0:22:11.555 --> 0:22:15.675 the room to go report it. So let's hear when 0:22:15.715 --> 0:22:17.475 he kind of gets to that point where you kind 0:22:17.515 --> 0:22:19.715 of the reveal, where you kind of get a good 0:22:19.755 --> 0:22:21.995 sense of how how the opinion is going to go. 0:22:22.635 --> 0:22:26.235 In approaching this problem, we cannot turn the clock back 0:22:26.275 --> 0:22:29.875 to eighteen sixty eight when the amendment was adopted, or 0:22:29.955 --> 0:22:34.435 even to eighteen ninety six when plus versus Ferguson was written. 0:22:34.875 --> 0:22:38.355 We must consider public education in the light of its 0:22:38.395 --> 0:22:42.635 full development and its present place in American life throughout 0:22:42.635 --> 0:22:46.315 the nation. Only in this way can it be determined 0:22:46.635 --> 0:22:51.075 if segregation in public schools deprives these plaintiffs of the 0:22:51.195 --> 0:22:53.355 equal protection of the laws. 0:22:55.355 --> 0:22:57.875 What Ethel Payne talks about is that once the decision 0:22:57.915 --> 0:23:00.195 went out on the radio, because people, the reporters who've 0:23:00.515 --> 0:23:03.475 raced out of the room called the radio stations, you know, 0:23:03.715 --> 0:23:08.875 call their newsrooms, that all the taxis in Washington, DC 0:23:09.035 --> 0:23:11.835 started honking. All the taxi drivers were these black men, 0:23:12.155 --> 0:23:13.755 and they all heard it on the radio at the 0:23:13.755 --> 0:23:16.075 same time, and people were were like like an atomic 0:23:16.115 --> 0:23:18.555 attack or something that they were like sirens going up. 0:23:18.755 --> 0:23:23.155 The whole city kind of like exploded in this kind 0:23:23.195 --> 0:23:27.515 of powerful noise, which I really love. But I'm wondering 0:23:27.515 --> 0:23:29.315 if you just tell us, like, what is the opinion 0:23:29.395 --> 0:23:32.795 and what's striking about it to you? 0:23:32.835 --> 0:23:33.115 Still? 0:23:33.115 --> 0:23:33.475 Today? 0:23:34.675 --> 0:23:38.195 I think a few things are striking about Warren's opinion today. 0:23:38.315 --> 0:23:41.275 I mean one is it's written in very plain language. 0:23:41.355 --> 0:23:44.635 You know, Warren is a politician. He knows how to communicate. 0:23:45.195 --> 0:23:49.075 It's a big deal what Supreme Court is doing, and 0:23:49.275 --> 0:23:53.355 he doesn't want it to feel technical. He wants it 0:23:53.395 --> 0:23:59.195 to feel like something that people can understand. It also 0:23:59.235 --> 0:24:04.075 sort of avoids the issue why exactly is school segregation 0:24:04.235 --> 0:24:08.955 un constitutionally? Doesn't quite tell us, and we're still really 0:24:09.155 --> 0:24:13.395 arguing today about you know, why was it unconstitutional? So 0:24:13.675 --> 0:24:16.235 it's the way in which it's it's smart, it's plain, 0:24:18.115 --> 0:24:20.915