Michael J. Klarman, Brown v. Board of Education: Law or Politics? (U. Va. Sch. of Law, Pub. Res. Paper No. 02-11, Dec. 2002).
Abstract: This essay analyzes the justices' internal deliberations in Brown v. Board of Education, based on the conference notes, with the goal of explaining why they found the case so hard. (At the first conference discussion, in December 1952, it was not obvious whether a majority existed to overrule Plessy v. Ferguson). I argue that for several justices, most notably Frankfurter and Jackson, Brown presented a conflict between law (as they understood it) and politics. Though they thought racial segregation a clear moral evil, they did not believe it was unconstitutional according to the conventional sources of constitutional interpretation - text, original intent, precedent, custom. The essay also tries to explain how a closely divided Court became unanimous and why school segregation struck most justices as an obvious moral wrong at a time when the nation was divided down the middle.