Another possibility is that a Supreme Court decision might go farther than OTL. As I said a long time ago in a forum far, far away:
In Morgan v. Virginia, 328 U.S. 373 (1946), William Hastie - another [Charles Hamilton] Houston protege who was ultimately appointed to the Third Circuit - succeeded in convincing the Court to strike down segregation on interstate carriers. The decision ultimately rested on Commerce Clause grounds, but Justice Rutledge apparently asked Hastie during oral argument if the case could also be decided under the Fourteenth.
This wasn't just an opportunity - it was a stone cold invitation. However, Hastie stuck to the gradualist strategy of the NAACP, "pretended not to hear [Rutledge]," and followed the question with "fifteen minutes of irrelevancies." Gilbert Ware, William Hastie: Grace Under Pressure 189 (1984).
But what if Hastie had decided not to wait?
We will start with the internal evidence in [Brown v. Board seven years later], because this is the most direct indication of the Justices' private opinions on the continued validity of Plessy. Of course the discussion in the Brown case begain in 1952, but seven of the Justices on the Court at that time also sat on the Court in 1946. (More later on those who didn't.)
This evidence, however, varies. Richard Kluger, in Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality 614 (1976) states that an informal poll taken by the Supreme Court clerks among themselves after the initial discussions, indicates that "a majority of the Justices would not have overruled Plessy." Another document - this one a memo to files written by Justice Douglas - gives us the names of that majority.
As related by Tushnet, "Douglas stated, 'In the initial conference [in December 1952] there were only four who voted that segregation in the public schools was unconstitutional.' These were Black, Burton, Minton and Douglas. Vinson and Reed thought that 'the Plessy case was right,' and Clark 'inclined that way.' Both Frankfurter and Jackson 'expressed the view that segregation in the public schools was probably constitutional.'" 91 Columbia L. Rev. at 1881.
On the other hand, Frankfurter himself, in a letter to Reed after the final decision in Brown, stated that there would have been four dissenters - not including himself - if the Brown case had been decided under Vinson. Id. at 1870. Tushnet also acknowledges that Douglas might have placed Frankfurter on the list of dissenters due to their long-standing personal enmity. Id. at 1881-82. However, Frankfurter also bragged later on about "filibustering" the decision "for fear that the case would have been decided the other way under Vinson." Klarman, 83 Georgetown L. J. at 442-43. If Frankfurter had counted five votes in favor of Brown in 1952, as he claims in his letter, there would have been no need to "filibuster" - at least not for the reason stated. (To be fair to Frankfurter, his doubts in 1952 may have been about Minton rather than himself, as Minton had expressed ambivalent views - especially in private - in other cases involving race.)
Finally, Burton and Douglas apparently took their own headcounts and determined that there would be "two to four" dissenters if Brown had been decided in the 1952 term. Presumably the "two" would have been Vinson and Reed, while the "four" would have included Jackson and Frankfurter (or possibly Jackson and Clark). It may be, however, that these two Justices were being overly optimistic, especially with regard to their guess that the decision might have come down 7-2.
From this evidence, conflicting as it is, we can place the 1952 Court into three groups. Three Justices - Black, Burton and Douglas - were definitely against Plessy; two - Vinson and Reed - were definitely for it; and the other four were swing votes.
Which, it turns out, is all the information we need to determine whether Plessy would have been overturned in 1946.
Two of the Justices on the 1952 Court - Minton and Clark, both unknowns on Plessy - were appointed in 1949. At the time of the Morgan case, their chairs were occupied by two Justices who were considerably more liberal, Murphy and Rutledge. It was Murphy who vehemently condemned racism in his dissent in Korematsu v. United States, 323 U.S. 214 (1944) and stated in his concurrence in Duncan v. Kahanamoku, 327 U.S. 304, 334 (1946) that "[r]acism has no place whatever in our civilization... It renders impotent the ideal of the dignity of the human personality." Writing for the Court, he also struck down labor union segregation in Steele v. Louisville and Nashville R.R., 323 U.S. 192 (1944) in terms which suggested strongly that he believed any form of segregation was unconstitutional.
Rutledge wasn't quite as articulate as Murphy. However, he joined many of Murphy's dissents in racial cases, and also would have overturned California's Alien Land Law. That, and the fact that he was the one who invited Hastie to make a Fourteenth Amendment argument in Morgan, leaves little doubt that he was one of "the Court's most vociferous critics of racial discrimination." Michael Klarman, An Interpretive History of Modern Equal Protection, 90 Mich. L. Rev. 213, 233 (1991). This, in turn, leaves little doubt that he would have voted to overturn Plessy.
Thus, a minimum of five Justices in 1946 - Black, Burton, Douglas, Murphy and Rutledge - would have voted that segregation was unconstitutional under the Fourteenth. (We are, of course, assuming that Black, Burton and Douglas would have voted the same way in 1946 as in 1952, but IMO this is an assumption we can safely make.) The majority in favor of overturning Plessy, in fact, was probably firmer between 1946 and 1949 than it would have been in the 1952 term. My guess is that it would have been 7 to 2, with Jackson and Frankfurter - neither of whom was personally enamored of segregation - jumping on the bandwagon once they realized the game was up.
A decision in 1946 would also have come in the context of the Truman Administration rather than the Eisenhower one. This leads naturally to the question of whether Truman would have been more vigorous in enforcing the Court's dictates than Eisenhower was. Certainly, Truman had the courage to make and enforce some tough calls against segregation, such as his decision to integrate the Army in 1948. If he had the cojones to make a decision like that in an election year, would he have also followed through effectively after the Morgan Court overturned Plessy? If so, would we see the Federal marshals in Little Rock (or some other city) in 1947, and desegregation beginning for real nearly two decades before it actually did?
Morgan may have been a missed opportunity in more ways than one.
