It would be difficult to overstate the centrality of Brown v. Board of Education to American law and life. Legal scholars from across the ideological spectrum have lavished more attention on that Supreme Court decision than any other issued during the last century. In recent decades, the standard account of Brown has placed that most-scrutinized opinion in a geopolitical context. Brown, the standard account maintains, must be viewed as a product of the Cold War era. By the 1950s, the persistence of laws codifying racial subordination had become an embarrassment for the United States on the global stage. The U.S. effort to defeat communism around the world thus rendered the recognition of civil rights for Black Americans a Cold War imperative.
This Article complicates and challenges that account by exploring the central role that anticommunism played in segregationists’ opposition to Brown and civil rights. Throughout most of the twentieth century, a broad array of Americans contended that preserving Jim Crow was a Cold War imperative in its own right. For this group, anticommunism and segregation were not just compatible, but inextricably intertwined. Their ranks included northerners and southerners alike: politicians, jurists, columnists, and ordinary citizens. White supremacists did not invoke anticommunism merely as a disingenuous ploy to combat Brown. Both long before and long after 1954, anticommunism helped to shape the contours of segregationist thought. The defenders of Jim Crow assailed integration as a product of communistic central government authority. They insisted that racial equality would create discord within the United States, just as the Soviets desired, and that civil rights activists were tainted by communist affiliations. Many segregationists viewed themselves as committed Cold Warriors, undertaking closely connected fights against both a foreign ideological threat and a domestic social one. As such, the Cold War represented not only a divide between the United States and the Soviet Union; it also reflected a debate within the United States over the relationship between racial justice, national security, and foreign policy.
Understanding that segregationists viewed their cause as a Cold War imperative recasts dominant views within legal academia, where this essential component of Brown’s geopolitical context remains underappreciated. While it is tempting to dismiss every segregationist invocation of anticommunism as the product of either irrationality or opportunism, it would be a mistake to do so. Linking segregation with anticommunism transformed the defense of Jim Crow from a regional priority into a national one. Anticommunism also helped resolve a core tension in the segregationist belief that Black citizens did not actually want integration, allowing civil rights lawsuits to be attributed to communist agitation. Reckoning with this significant element of the civil rights era, this Article thus illuminates the logic of a racist worldview. In so doing, it provides a fuller, more accurate portrait of a critical period in constitutional history, of the complex dynamics undergirding legal change, and of the malleable, tenacious character of racism in modern America.
* 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.
For helpful comments and conversations, we thank Jack M. Balkin, William Baude, Heather K. Gerken, Risa L. Goluboff, Oona A. Hathaway, Laura Kalman, Emma Kaufman, Randall L. Kennedy, Sanford V. Levinson, Kerrel Murray, Scot Powe, Richard Primus, David Schleicher, Thomas Schmidt, Jason Sokol, Geoffrey R. Stone, and John Fabian Witt. We also thank the remarkable team of librarians at Yale Law School for their assistance in locating sources. Finally, we are grateful to the diligent editors of the Stanford Law Review for their keen insights and assistance.