Legal scholarship highlight: What if Chief Justice Fred Vinson had not died in 1953?

There’s a pretty strong consensus that Chief Justice Fred Vinson was the worst Chief Justice of the twentieth century.  The conventional view goes something like this: Vinson was a bumbling, incompetent political hack, an intellectual lightweight with minimal understanding of complex legal issues, a card-playing crony of Harry Truman who continued to advise Truman even after taking his seat on the Court, a reactionary with horrific instincts in key civil liberties cases, and, worst of all, a major obstacle to unanimity in Brown v. Board of Education.  By this account, the best thing Vinson ever did was to die of a heart attack at precisely the right moment – in the middle of the Brown proceedings in 1953, thus allowing his successor, Chief Justice Earl Warren, to author a unanimous opinion invalidating racial segregation in public schools.

Last spring, Indiana Law Review hosted a symposium on counterfactuals in constitutional history.  Professor Gerard Magliocca assembled a group of constitutional law scholars to explore various “What ifs.”  For this symposium, I asked the question, “What if Fred Vinson had not died of a heart attack in 1953?”  That is, what would have happened to constitutional law and the Supreme Court if Fred Vinson, and not Earl Warren, had presided over the final decision in Brown?

When I started this project, I assumed that Vinson would have dissented in Brown.  Yet my research quickly convinced me that this view was wrong.  Most likely, Vinson would have authored a unanimous opinion in Brown invalidating segregation in public schools.  Vinson, not Warren, would have been the author of one of the Court’s most significant decisions, guaranteeing him instant historical immortality and a place among our nation’s most esteemed Chief Justices.

To be sure, Vinson would not have authored a broad opinion invalidating all racial distinctions and ordering the immediate integration of segregated schools.  But, then, neither did Earl Warren.  The Brown opinion was carefully limited to the facts of public school segregation, and Brown II delayed integration for years, under the “all deliberate speed” formula.  An opinion authored by Vinson would probably have looked similar to the Brown/Brown II duo that emerged from the Warren Court.

Four factors point in the direction of a Vinson-authored unanimous opinion in Brown.  First, Vinson had authored unanimous opinions for the Court in the most important race cases he confronted: Shelley v Kraemer, invalidating judicial enforcement of racially restrictive real estate covenants; Sweatt v. Painter, invalidating racial segregation at the University of Texas School of Law; and McLaurin v. Oklahoma State Regents for Higher Education, invalidating segregation within a graduate program in education.  In Sweatt and McLaurin, Vinson had emphasized the critical socializing role of education.  McLaurin concluded, “There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar.”  This principle, although ostensibly confined to graduate education, had obvious implications for segregation at the elementary and secondary level.  Indeed, in conference, Vinson had suggested that graduate education could not be meaningfully distinguished from elementary and secondary education.

Second, Vinson was a steadfast supporter of the policies of the federal government.  In Brown, both the Truman and Eisenhower administrations had urged the court to strike down school segregation.  For Vinson to side against the stated preferences of the federal government, from both Democratic and Republican administrations, would have been decidedly out of character.

Third, Vinson was a fierce anti-Communist, perhaps the most strident anti-Communist to ever serve on the Court.  In numerous filings, the federal government had told the Court that racial segregation undermined America’s struggle against global Communism.  Vinson would have paid careful attention to this argument.  A vote to uphold segregation would hand a massive propaganda victory to Communist forces, something Vinson would do almost anything to avoid.

Fourth, Vinson was close to his friend, former President Harry Truman.  In 1948, Truman had gambled his entire presidency on the issue of civil rights, endorsing a broad civil rights platform and triggering a split with the southern wing of the Democratic Party.  Would Vinson, as Truman’s Chief Justice, really want to be known as the author of an opinion re-enforcing racial segregation?  This, too, seems unlikely.

Although one can never know for sure, it seems more likely than not that Vinson’s survival would have led to a unanimous opinion in Brown similar to the one ultimately authored by Chief Justice Warren.  Under this scenario, it would be impossible to dismiss Vinson as an incompetent failure.  Moreover, Brown would be seen not as the opening salvo of the Warren Court, but as the logical culmination of Vinson’s decisions in a line of unanimous race cases.

On a more whimsical note, the essay also explores what might have happened with subsequent appointments had Vinson not died prematurely.  The key conclusion is that Earl Warren would have been appointed an Associate Justice of the Court to fill the seat left vacant in 1954 by the death of Robert Jackson; Warren, however, would not have been named Chief Justice.  Instead, the most likely successors to Vinson would have been John Marshall Harlan under President Eisenhower or Byron White under President Kennedy.  Neither would have been especially successful as Chief Justice.  Moreover, depending on the timing of Vinson’s subsequent death, decisions such as Miranda v. Arizona could have easily come out the other way.

Earl Warren was so significant a Chief Justice that almost anyone who preceded him would look small in comparison.  Warren’s shadow has contributed greatly to the historical eclipse of Fred Vinson.  But if Vinson had instead been succeeded by a Harlan or a White, presiding over a fractured court and frequently dissenting from the Court’s rulings, Vinson’s Chief Justiceship would suffer little in comparison.  Indeed, his inability to command majorities would seem less of a failing and more like the typical lot of a mid-twentieth century Chief Justice.  With Brown behind him, Vinson might have even been seen as the most significant Chief Justice of the twentieth century.

 

Carlton F.W. Larson is Professor of Law at the University of California-Davis School of Law.  The full version of this article, What If Chief Justice Vinson Had Not Died of a Heart Attack in 1953?: Implications for Brown and Beyond, can be found here.