Swann V. Charlotte-Mecklenburg Board of Education - Swann Before The Supreme Court

Swann Before The Supreme Court

Justice Douglas had previously been strongly opposed to busing. The Court was urged to begin their term early to hear the case, but decided to wait until the first day of their new term to begin.

Despite his relative youth and inexperience, Julius Chambers argued the case, because of his intimate knowledge of the facts involved. Erwin Griswold, the Solicitor General of the United States, represented the federal government, advocating Nixon’s “go-slow” policy. Though no official vote was taken, Justice Black and Chief Justice Burger wanted to reverse McMillan’s order, while Justices Douglas, Harlan, Brennan and Marshall wanted a strong affirmation of the order; Justices White, Stewart and Blackmun did not express a strong feeling either way. Brennan, Douglas and Marshall were quite liberal, but Harlan was usually conservative. When he circulated his very grudging affirmation of McMillan that limited future action and action in other areas by the Court, he met strong resistance. Brennan, Douglas, Harlan and Marshall all demanded revisions and circulated suggestions for alternate drafts. Justice Stewart also reacted strongly after carefully considering the facts of the case, and wrote a “dissent” that would have been the opinion of the court without revisions of Burger’s drafts.

Burger revised the opinion five times, each time making a stronger affirmation of McMillan and incorporating the language of Stewart, Brennan, Harlan and others into it. After the fifth draft, Justice Black threatened a dissent if the opinion was made any stronger an affirmation, and so a sixth and final draft was created that was close to what Justice Stewart had composed after the first conference. The final opinion was 9-0 affirming McMillan’s order.

The decision led to the widespread use of busing to end segregation by federal judges in the South.