Felix Frankfurter's draft decree to enforce the Brown v. Board of Education decision, 8 April 1955

Reproduction number: A36 (color slide; pages 1 and 2); LC-MSS-47571-3 (B&W negative; page 2)
On 17 May 1954 Chief Justice Earl Warren (1891-1974) delivered the Supreme Court's unanimous opinion in Brown v. Board of Education of Topeka, Kansas, which declared school segregation in the United States unconstitutional. After the Brown opinion was announced, the Court heard additional arguments during the following term on the decree for implementing the ruling. When Warren announced the remedy in Brown II in 1955, he utilized an equitable conception that originated years earlier with Oliver Wendell Holmes, Jr. (1841-1935)--"with all deliberate speed." In this draft of the decree prepared by Justice Felix Frankfurter (1882-1965) on 8 April 1955, which Warren subsequently adopted, Frankfurter used the phrase "with all deliberate speed" to replace "forthwith," the word proposed by National Association for the Advancement of Colored People (NAACP) lawyers to achieve an accelerated desegregation timetable. This draft decree, along with related unique documents in the Frankfurter Papers, has helped scholars analyze the evolution of Brown.
Frankfurter wanted to anchor the decree in an established doctrine associated with the revered Holmes, but his endorsement of "all deliberate speed" sought to advance a consensus held by the entire Court. Each justice thought that the decree should provide for flexible enforcement, should appeal to established principles, and should suggest some basic ground rules for judges of the lower courts, who would implement the Brown decision. Shortly after he retired from the Court, Warren acknowledged that "all deliberate speed" was chosen as a benchmark because "there were so many blocks preventing an immediate solution of the thing in reality that the best we could look for would be a progression of action." When it became clear, however, that critics of desegregation were using the doctrine to delay and avoid compliance with Brown, the Court began to express reservations about the phrase. In 1964, less than a decade after "all deliberate speed" was prescribed, Justice Hugo LaFayette Black (1886-1971) declared in a desegregation opinion that "[t]he time for mere 'deliberate speed' has run out."