May 17, 2024 • 34 mins
Jill Lepore returns to celebrate the 70th anniversary of the ruling in Brown v. Board of Education with a special episode of The Last Archive. She and Ben Naddaff-Hafrey explore the amazing new AI-powered recreation of the Brown v. Board cases over at the Oyez project. Then, Kenneth W. Mack, the Lawrence D. Biele Professor of Law at Harvard University, stops by to discuss the enduring significance of the case.
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Episode Transcript
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Speaker 1 (00:16):
Pushkin.
Speaker 2 (00:21):
We come then to the question presented, does segregation of
children in public schools solely on the basis of race,
even though the physical facilities and other tangible factors may
be equal, deprive the children of the minority group of
equal educational opportunities.
Speaker 1 (00:45):
I'm having flashbacks. So okay, what are we listening to?
Why are we here for this very special day?
Speaker 3 (00:55):
So May seventeenth, seventieth, the anniversary of Brown v. Board
of Education, Chief Justice Earl Warren hands down the opinion
in the momentous series of consolidated school segregation cases in
which the Supreme Court declared segregation on constitutional a violation
of the fourteenth Amendment. The crazy thing is we are
(01:17):
listening to not the actual opinion issued by Earl Warren,
because these cases were not recorded, were just on the edge,
just on the eve of the Supreme Court instituting the
practice of recording oral arguments. So the OYA project, which
(01:39):
is I love, is a project started by this guy,
Jerry Goldman, a political scientist, hero of evidence and justice,
who decided to make available to kind of research and
pull together all of the audio of all the Supreme
Court opinions and oral arguments where those existed as recordings.
(02:02):
It's all free and online at the OYA Project. It's
this amazing resource. I use it all the time. I
now never just go read Spreme Court opinion. I go
listen to the oral arguments because of.
Speaker 1 (02:12):
The day A consummates.
Speaker 3 (02:16):
Yeah, they're great. Like, it's an incredible thing that the
OYA Project exists, and it's really hugely meaningful historical record.
So Jerry Goldman got really interested in what it meant
that there's an absence of a record for Brown v.
Board of Education, because it's so important, and because we
also have the voices of the main participants. Earl Warren
(02:40):
had been governor of California. The we have plenty of
recordings of Earl Warren's voice before he was appointed to
the court by Eisenhower, after he was on the court.
But what we were just listening to was not the
opinion issued by Earl Warren, but a recreation of Earl
Warren's voice that is driven by a kind of really
(03:02):
interesting and surely increasingly common recreation of the transcript voice
actors reading the transcript and giving it emotional inflection and
pacing and tone, and then an ai recreated voice kind
of overlaid onto that.
Speaker 1 (03:21):
Like a mask I think is the term they use,
that it's the sort of performance within a mask on it.
I love that. It's very Batman and so I guess
there's a number of reasons why it feels so right
to celebrate this anniversary on the Last Archive today. One
is that we are inveterate reenactors of trials, sometimes hits,
(03:46):
sometimes misses. And then another is that Brown verse Board
of Education is really central to the inquiry of the show.
So much of the sort of epistemological backlash of the
twentieth century, at least the bad faith backlash is a
response to Brown and all these themes of brainwashing and
the kind of different cultures of knowledge emerging after the
(04:07):
mid twentieth century. It feels like it all comes out
of this this moment which a lot builds up to.
Speaker 4 (04:13):
Well.
Speaker 1 (04:13):
And then of course the third reason is just artificial
intelligence and how you know what you know? So it's
this very yeah, last archivy combination of things.
Speaker 3 (04:20):
So you will remember Ben that for the Last Archive.
Speaker 1 (04:24):
Second season second with the Scopes tra Yeah, yeah.
Speaker 3 (04:27):
So the Scopes Trial in nineteen twenty five somewhat similar
to the Brown case in that it was recorded and
was the first criminal trial ever broadcast on the radio.
It was broadcast nationwide. It was a huge phenomen People
sat around and listened to the Scopes trial, but none
of the radio broadcast was recorded, devastating. So like it is,
(04:52):
it is actually really interesting to think about it as
a listening experience because that's how people experienced it, and
yet we clen't recapture that. And so similarly, like Clarence Darrow,
like we have the William Jennings Bryan, the two attorneys
who argued the case. We have their voices. Their voices
are recorded, we know what they sounded like. So we,
(05:12):
without any ethical hesitation whatsoever, wide and recreated the Scopes trial.
Speaker 1 (05:19):
With actors via zoom because it was the early days
of the pandemic. So we were one step closer to
a fully artificially intelligent voice acting experience.
Speaker 3 (05:28):
So you know, we never I can't recall us ever
having conversations reason not to do that. I mean, anyway,
inherit the wind already exists and people think, so.
Speaker 1 (05:35):
Okay, no, but this I think is that is a
crucial I think the inherit the wind thing is a
crucial point because to me, there's this ipe craze in Hollywood.
People are increasingly making films based on real events. There's
a kind of historical acting style that emerges when people
have a lot of access to audio visual material, and
it's exemplified by something like Bradley Cooper and Maestro performing
(05:58):
as Leonard Bernstein, where you know famously he spent like
years studying film of his conducting style so he could
like perfectly do the movements. To me, it that turns
out to be something more like mimicry than real acting
or sort of real dramatic interpretation, something like Inherit the Wind,
we should say, the famous nineteen sixty film re enacting
(06:21):
the Scopes Trial starring an amazing Spencer Tracy. It bears
almost no resemblance.
Speaker 3 (06:28):
To the actual history, right, totally free rate.
Speaker 1 (06:30):
But it's totally transporting.
Speaker 3 (06:31):
Yeah, I know it's interesting, but I think too one
of the things that differentiates say, Inherit the Wind from
Maestro is Inherit the Wind maybe like a performance of
the Crucible, right, very much an updating of the story
for our own times. Right, it isn't about a kind
of backward looking Oh, let's transport ourselves to nineteen twenty
(06:52):
five and be in the Scopes trial. It's let's offer
up a moral fable that can help us understand McCarthyism. Right,
It's not about emulation, it's about adaptation, which has this
weird analog and constitutional interpretation, right, like do we look
backward at what the frame of the Constitution or the
fourteenth Amendment meant and intended and what they understood by
(07:15):
the words that they said, or do we adapt those
things for our own time. So that's what's the sort
of weird free selling around, like, oh, it's cool to
use these technologies to look backward, but also for what purposes?
Speaker 1 (07:28):
Well, this also it's sort of presented as a podcast.
The narrator her name is Karen Grigsby Bates. She's from
NPR both independently. Had sense that she sounds like a
young Nina Totenberg.
Speaker 3 (07:41):
Let's pause here for a quick explanation of what you're hearing.
No microphones were recording Warren's words that day in nineteen
fifty four. I just feel so taken care of.
Speaker 1 (07:51):
I would believe anything that was told me.
Speaker 3 (07:53):
It's good to tell me. So this is why I
have come out of my sabbatical to record a one
off episode of the Last Art Time with you, just
to think about how interesting this is. It really does
raise all kinds of questions for historical research and history
storytelling too, that I know, we you know, won't have
time to get into. But I decided I would try
(08:15):
to find out whether one of the voices at least
is accurate. But I wrote to four people I know
who were martial clerks, and I asked them to listen
to the recreated martial voice, and three of them said
more or less the same thing, which was that Marshall
famously could speak in many different voices, that he had
(08:36):
different accents that he could put on. I mean, he
grew up in Baltimore, but he had worked as a
pullman porter, you know, when he went and argued cases
in the South, he kind of deliberately sounded a little
bit more like a Southerner. But in a court room,
and certainly in the Supreme Court, he spoke in impeccable
enunciated Queen's English. Martha Minno told me that people come
from miles around just to hear a third good Marshall
(08:58):
argue in court, just because of the nature of the performance.
But you know, Harry Littman, who was also a Marshall clerk,
who's the host of the amazing podcast Talking Feds that
I'm obsessed with, he heard the recreated Marshal voice as
something of like something of a mashup of Marshall's many
different speaking styles. Cas Sunstein told me, you know, that
(09:22):
sounds a bit like when I knew him, but I'm
not super close. And then Randy Kennedy, a law school
professor at Harvard as well and a former Marshall clerk, said,
if you had not told me that the voice was
AI generated out of sworn that it was the real
third Good Marshal.
Speaker 1 (09:39):
Something that's interesting to me though about this. I love
hearing the reports of people who actually knew him, but
it also foregrounds for me this kind of maybe naive
to say, but incredible to me, fact that Brown resportive
education as a ruling well within the span of a
human lifetime. I mean, this is the seventieth anniversary, but
you're actually going to talk to a scholar, Kenneth Mack
(10:02):
from Harvard Law School who studies round resportive education now
about the significance of the case.
Speaker 3 (10:08):
Yeah, So, Ken, this amazing. He is just an incredibly
astute constitutional analyst, but he's also a legal historian, and
he's wrote this really amazing book on civil rights lawyering
and what it means to sort of try to represent
a race. So I wrote to Kenna say, like, this
(10:29):
is this crazy brown thing is coming out? What do
you make of it?
Speaker 5 (10:36):
Hi?
Speaker 4 (10:36):
Ken?
Speaker 3 (10:37):
Hey, how are you good?
Speaker 6 (10:39):
Good?
Speaker 4 (10:41):
Good?
Speaker 3 (10:41):
Thank you so much for doing this. I will confess
I'm completely fascinated by this project of trying to recreate
the entire audio landscape of Brown v. Board of Education.
So I wanted to ask you a little bit first though,
what the NAACP's legal strategy was here.
Speaker 6 (10:58):
Okay, all right, So the background for Brown versus the
Board of Education. The NAACP is the principal of civil
rights organization in the United States. Found in the early
twentieth century. By the nineteen thirties, the NAACP it began
(11:19):
to focus some of its energies on school desegregation. The
attack on segregated schools was led by two lawyers, one
of which was Thurgood Marshall, who had eventually become the
first black Supreme Court justice, and the other of which
was Charles Hamilton Houston, who was a black Harvard Law
(11:41):
School graduate. So the two of them began filing cases
in the nineteen thirties about schools, but most of them
were school equalization cases. So you've got a black school
in which the teachers are paid X at a white
school in which the teachers are paid Y. So we
followed suit to try to get the teachers paid equally.
(12:03):
There are a number of cases they bring that are
about primary secondary schools. Okay, we want equal salaries for
Blackack and white teachers or equal facilities for black and
white schools within the system of segregation. But there are
a bunch of university cases. The NACP challenges Missouri's practice
(12:26):
of excluding black people from its law school. You know,
there is no black law school and the white law
school is whites only. So the NACP brings a case saying, okay,
well there's no black law school, we should bit black
people to the white law school. And Supreme Court decides
in favor of the NAACP in that case.
Speaker 3 (12:48):
Which because there's no question, there's no question of equality
when there's an absence.
Speaker 6 (12:53):
Yeah, yeah, So the it's still within separate but equal, right,
because theoretically, if you built a black law school in Missouri,
you know, that would be okay within separate but equal,
But there is no black law school. In fact, to
build a black law school would be fantastically defensive. So
the logic of the case is actually an attack on separate
(13:14):
but equal, because you know, you can't build separate everything,
right law schools, dental schools, et cetera, et cetera. And
so that begins to set the stage for the cases
that would become brown versus more of education.
Speaker 3 (13:30):
So one of the things I love about these cases
is there's so much human drama. You know, Robert Jackson
has a heart attack, Fred Vinson just up and dies.
You know, the court changes, the cases argued more than once.
You know, there's like the drama of the day itself.
May seventeenth, nineteen fifty four, and the kind of you
get this real sense the country is on the edge
(13:50):
of its seat about the case at that point. But
then you know this from the historians point of view,
it's quite frustrating that none of this was recorded, and
it's just on the edge of when the court begins
recording its proceedings. So one of the things that I
think is really interesting about this OIA project attempts to
recreate the audio of it all, is can that sense
(14:11):
of human drama be captured with like artificially intelligent driven
recreation of voices. Let's listen to a little clip of
one of the recreated scenes, and then I don't kind
of want to hear your reaction to it. I think
this is from Spotswood Robinson arguing in the court.
Speaker 5 (14:34):
I think it is very clear that the frame was
intended to destroy the black Codes. I think it is
clear that they intended to deprive the states of all
power to enact similar laws in the future. I think
the evidence overall is clear that it was contemplated and
understood that the state would not be permitted to use
its power to maintain a class or caste system based
(14:55):
upon race or color, and that the Fourteenth Amendment would
operate as a prohibition against the imposition of any racial
classification in respect of civil rights.
Speaker 3 (15:06):
So, yeah, what's your reaction to that.
Speaker 6 (15:10):
Well, it's a lot of fun to hear to pretend
ones hearing spots with Robinson. You know, he's from Virginia.
It sort of sounds like what he would sound like.
Maybe although I never met him, so I don't really know.
To me, it's like listening to a movie traumatization, like
(15:30):
this is not Spotswood Robinson, but maybe you get a
sense of what it might have been like to have
heard him.
Speaker 7 (15:38):
Yeah.
Speaker 3 (15:38):
Yeah, there's a kind of combination of an actor underlay
and then some ai overlay in these voices. But thinking
about I'd love to hear more about what it meant
for someone like Robinson to do the work of lawyering.
Is there something about how you would imagine hearing that
(15:59):
or the way that that would come across in an argument.
I guess, like I'm not sure. It kind of gets
me there, that voice, right, Like there's something about the
the stakes.
Speaker 6 (16:12):
Yeah, it's it's it's every time these black lawyers go
to court in these civil rights cases, there's a lot
of drama just from the from the basic trial court
to the Supreme Court because in every case, you know,
in these courtrooms, there's never been a black person to
(16:33):
do this kind of thing. There are very few black lawyers.
If their good marshall goes to court in Virginia or
somewhere else in the South, nobody's ever seen a black lawyer.
Usually and nobody's seen a black layer talk to white
people the way that Thirgod Marshal gets to talk to
(16:53):
white people in court. But at the same time, you know,
there's a bunch of cases where Marshall's not sure if
he's going to be lynched for coming to court, and
in one case he almost is lynched and it's just
saved by one of his colleagues. So there's things like
that you just can't reconstruct, right, just the drama of
(17:17):
that moment.
Speaker 3 (17:18):
Yeah, let's listen to Marshall for a minute. What I
want to do is play this Ai Marshall, and then
we can listen to actual Marshal from the same year,
from fifty four, and see what you think.
Speaker 8 (17:32):
There is nothing in the debates that will hint in
the slightest that they did not mean complete equality. They
said so to raise the Negro up into the status
of complete equality with the other people. That is the
language they used. Substantial as a word. It was put
into the fourteenth Amendment by Plessy versus Furguson, and I
cannot find it, and it cannot be found in any
(17:53):
place in the debates.
Speaker 3 (17:55):
Okay, can we listen to the actual Marshal from the
same period.
Speaker 4 (18:01):
Despite the progress that's been made in twenty years, despite
the fondest hopes of a lot of people, we have
got before us a job for the future, and it's
not the type of job that can be solved solely
(18:23):
by government. It's a type of job that has to
be solved by individuals working on individuals.
Speaker 3 (18:33):
I don't know, what do you think.
Speaker 6 (18:35):
It's so striking that the two they don't quite sound alike.
They're similar, but also like, I know what Marshall sounded
like later in life. I didn't meet him, but he's
more gravely, like yeah, yeah, his voice is deeper later
in life. He his accent changes. So that's the other
(18:57):
thing you just can't capture. You don't know what he
sounded like in court because everybody said that when he
was in when he was in the South, he would
get a real Southern accent. Now when he's in a
Supreme court, he probably doesn't.
Speaker 3 (19:12):
Yeah, but we don't.
Speaker 6 (19:14):
Actually know that he's arguing with John W. Davis, you
know who knows. Yeah, So we can't capture that yeah aspect.
Speaker 3 (19:22):
Yeah, like he just was like a consummate code switcher,
which I guess We're not surprising when you think about
the kind of roles that he was playing, as you say,
and also traveling and speaking into different audiences.
Speaker 1 (19:35):
We'll be back with more in just a minute.
Speaker 3 (19:42):
I kind of want to go back to the case
itself and think about how close was Brown to being
decided differently.
Speaker 6 (19:52):
Yeah, we don't know how close Brown was to being
decided differently. We know that the first time it was argued,
it looks like maybe four justices were in favor of
overturning school segregation, and maybe two were in favor of
(20:12):
affirming it, and the others, including Felix Frankfurter, we don't
really know. So there's a lot of accidents, you know,
like this is history, right, History is you know, a
bunch of things happened, and some of them are planned,
and some of them are accidents, and some of them,
you know, an accident happens and then somebody takes advantage
(20:33):
of it and pushes it. So our main accident, of course,
is that Chief Justice Vincent dies and Brown is re
are argued, and in the second argument, the NAACP is
a lot more aggressive also, and you know what they
ask for and the kind of claims they make about
the original understanding of the fourteenth Amendment as prohibiting school segregation.
(20:58):
So these are all accidents. It was, you know, the
cases themselves were often accidents in the sense that the
cases kind of evolved. You know, the South Carolina case
breaks versus delegate starts with a request for a school bus, like, Okay,
if they gave the black kids a school bus, then
(21:19):
maybe the whole thing would have been different.
Speaker 3 (21:21):
I've been reading about, you know, that day and people's expectations,
a sort of reporter scrambling to go down to the
courthouse because finally this decision was going to be issued.
You know, it had been argued twice, it had been
in the news for a long time. The country's really
kind of on the edge of its seat about what
this decision is is going to look like. I was
(21:42):
reading the biography of Ethel Payne, who was the Washington
reporter for the Chicago Defender, and she had gone down
with the press and she talks about, you know, it
was noontime that the court was called into session, and
at the minute it became clear which way the decision
was going to go. When Warren got to you know,
(22:04):
a particular point in issuing the opinion, which he of
course read out loud that everybody the room already looked
the room to go report it. So let's hear when
he kind of gets to that point where you kind
of the reveal, where you kind of get a good
sense of how how the opinion is going to go.
Speaker 2 (22:22):
In approaching this problem, we cannot turn the clock back
to eighteen sixty eight when the amendment was adopted, or
even to eighteen ninety six when plus versus Ferguson was written.
We must consider public education in the light of its
full development and its present place in American life throughout
the nation. Only in this way can it be determined
(22:46):
if segregation in public schools deprives these plaintiffs of the
equal protection of the laws.
Speaker 3 (22:55):
What Ethel Payne talks about is that once the decision
went out on the radio, because people, the reporters who've
raced out of the room called the radio stations, you know,
call their newsrooms, that all the taxis in Washington, DC
started honking. All the taxi drivers were these black men,
and they all heard it on the radio at the
same time, and people were were like like an atomic
(23:16):
attack or something that they were like sirens going up.
The whole city kind of like exploded in this kind
of powerful noise, which I really love. But I'm wondering
if you just tell us, like, what is the opinion
and what's striking about it to you?
Speaker 6 (23:32):
Still?
Speaker 1 (23:33):
Today?
Speaker 6 (23:34):
I think a few things are striking about Warren's opinion today.
I mean one is it's written in very plain language.
You know, Warren is a politician. He knows how to communicate.
It's a big deal what Supreme Court is doing, and
he doesn't want it to feel technical. He wants it
to feel like something that people can understand. It also
(23:59):
sort of avoids the issue why exactly is school segregation
un constitutionally? Doesn't quite tell us, and we're still really
arguing today about you know, why was it unconstitutional? So
it's the way in which it's it's smart, it's plain,
it's it's written by somebody who knows how to write
(24:20):
an opinion that's going to be consumed by millions of
Americans who don't agree on the fundamental thing that he's deciding.
Speaker 3 (24:30):
And how did the country respond to it in fifty.
Speaker 6 (24:34):
Four, Well, there were a number of different responses. The
initial reaction was very muted, they're they're not these grand
gestures of defiance. I mean there there, there would be
pretty soon. I mean once you know, Martin Luther King
comes along, you know, basically not very long after, so
(24:54):
pretty soon there are these kind of grand gestures of
defiance of the both of the Supreme Corps to the
prospect of integration. But but in the white South, the
initial reaction is, you know, maybe pretty mutic compared to
what we might expect it to have been from our
our vantage for many years later.
Speaker 3 (25:17):
So one of the things I think about with Brown,
and this was really striking to me. Somehow listening to
the arguments made this more clear to me than reading them,
which was how intricately the NAACP lawyers are both insisting
on in an original intention argument about the Fourteenth Amendment,
(25:40):
that it had these anti slavery origins, that it was
an abolitionist idea, that it had this kind of open
ended meaning that could be construed to declare segregation unconstitutional,
in spite of the fact that all the members of
Congress who were involved in drafting the Fourteenth Amendment had
(26:01):
children who were going to segregated schools. Like the original
intention argument can go the other way. But they have this,
they're committed to that, but at the same time they
want to argue that original intention kind of doesn't matter,
and that really it's the social science that they're presenting.
This amazing, you know, this incredible. Uh so we will
call social psychology evidence about the consequences of segregation for
(26:22):
black children. Like they're throwing everything by way of evidence
and argument at defeating in this kind of grand sweeping way,
the very idea of separate but equal. By the time,
you know, they get to the actual second round of arguments,
and you know, looking from my point of view seventy
years on the legal arguments, that that argues not John
(26:46):
Davis's arguments in court in fifty three or something, but
the later legal arguments, you know, the sort of origins
of originalism case that the reaction to Brown leads a
group of scholars who would come to call themselves conservative
constitutionalists to emphasize that the original intention of the fourteenth
Amendment was never to end segregation and that therefore Brown
(27:08):
was wrongly decided. And you see this kind of whole
origin of some of our contemporary legal clashes around what
the Supreme Court does and how it makes its decisions.
So I'm struck listening to it at how like alive
those disputes still are.
Speaker 6 (27:31):
Yeah, I think we have always argued as Americans about
are founding principles and race. Right in the nineteenth century
it was was the Constitution pro slavery or anti slavery?
You know, pitched battles over that. And since Brown, it's
(27:52):
you know, how to understand the Fourteenth Amendment? Do we
look at its original understanding, intention, meaning, et cetera, et cetera.
Does that matter even when we look back to eighteen
sixty eight we get different answers there? Actually is it
one answer? I mean, Supreme Court is deciding cases at
(28:14):
this moment that are about how to understand both the
meaning around when it was decided and the meaning of
the Fourteenth Amendment when it was framed and ratified. And
you know, we've just been arguing about that for the
(28:36):
last seventy years, and we could continue to argue about that.
Speaker 3 (28:42):
I am really interested in the tech piece of this,
where this kind of AI voice recreation can give us
some proximate version that's maybe different than hiring actors, could
be cheaper for ordinary people to do. And since so
much of our constitutional discourse is about original intention, meaning
(29:07):
and understanding. So let's say someone wants to recreate the
debates of the congressional debates about the fourteenth Amendment as audio,
where the question of what did people mean when they
said these things is given a different weightiness if we're
(29:28):
listening to it and you're you know, the way the
AI might emphasize certain terms or recreate certain voices. Since
we care about what the framers of constitutional texts meant
when they said things, what would it mean if we
were listening to them? Would it have an effect on
(29:48):
how we interpret the constitution? Is there a conceivable future
in which this technology has implications for jurisprudence?
Speaker 6 (30:03):
You know, it's interesting when we kind of think about
what did Brown mean when it was decided, and if
we had some form of a access AI generated to
how people spoke about it, would it help us understand
what it meant? And I guess the answer was sort
(30:25):
of yes and no. You know, I'm a historian, so
I always think I'm committed to figuring out how people
thought about things in the past and trying to do
that as accurately as possible. And there's a way in
which AI is both facilitates and underminds that, right, because
you know, you can't you can't reconstruct how it sounded
(30:48):
in the past because you weren't there. We don't have
a recording. Even if we even if we had a recording,
we don't know what it feels like to be in
the room. So there's a way in which it's it's
it's great, and there's a win which it's a pipe dream.
I mean, you're just never going to be able to
get to the past. Yeah, and we almost have to
(31:08):
sort of leave it there.
Speaker 3 (31:10):
Yeah, no, we do, but that I think I have
this kind of completeness fantasy as a historian, and something
about this AI kind of speaks to that, like, oh
you could really you know, why did Warren write it
just that way? You can when you hear it, it would
be different, dirt, that's somehow we could get all the answers.
And but you're rational and wise and you know that's
(31:35):
not that that's not true. But also it shouldn't decide
for us how we live today, right, like at some level,
like that's kind of the turning point that Brown represents, Right,
even if we knew what the what the framers what
John Bingham meant when he drafted the fourteenth Amendment. Even
if we knew, we still know we should end segregation,
(31:56):
do you know what I mean? Like even like that,
that's the that's for me, the the kind of real
majesty of Brown is the naac's claim like, all right,
we're gonna make this argument about original intention, but it
actually what we're really going to say is this is
just wrong. And that's why I love this case. Like
that's why I love listening to Marshall and spots with'ms
and make these claims because you can hear like enough already, do.
Speaker 1 (32:21):
You know what I mean?
Speaker 6 (32:23):
Yeah, I mean I agree. I think that Brown was
as much about the moment it was decided as it
was about eighteen sixty eight. Like I mean, you know,
if you read about the justices, they.
Speaker 7 (32:37):
Kind of understood, you know, it's the nineteen fifties. Could
we really have school segregation? This thing is kind of wrong,
But then what are we supposed to do? How were
we supposed to write an opinion? But they kind of
know intuitively, at least most of.
Speaker 6 (32:50):
Them, that it seems incommensurate with nineteen fifties America to
have this and to not have any legal remedy. And
that's really what the case is about. And as you say,
the Thurgood Marshall and the NAACP lawyers they kind of
know that too. And we argue about all this technical stuff,
(33:12):
but really the case is about now, as in the
nineteen fifties for Brown. Yeah, but we argue about it.
It's always about now. We pretend like we're arguing about
nineteen fifty four or eighteen sixty eight, but we're really
always arguing about now.
Speaker 1 (33:33):
The special episode of the Last Archive was hosted by
Jill Lapour. It was produced by Ben Nattahaffrey and Amy
Gaines mcuaid. Editing on this episode by Lydia Jane Coott.
Today's episode was engineered and mastered by Sarah Briguere. Original
music by John Evans and Matthias Bossi of Stellwagen Symfinet.
Thank you to the Oya Project. We've included a link
(33:55):
to their amazing Brown Versus Board of Education website in
our show notes. We should check it out. Special thanks
to the Last Archives editor Sophie Crane, to Sarah Nix,
and to Gretecone
Pushkin.
Speaker 2 (00:21):
We come then to the question presented, does segregation of
children in public schools solely on the basis of race,
even though the physical facilities and other tangible factors may
be equal, deprive the children of the minority group of
equal educational opportunities.
Speaker 1 (00:45):
I'm having flashbacks. So okay, what are we listening to?
Why are we here for this very special day?
Speaker 3 (00:55):
So May seventeenth, seventieth, the anniversary of Brown v. Board
of Education, Chief Justice Earl Warren hands down the opinion
in the momentous series of consolidated school segregation cases in
which the Supreme Court declared segregation on constitutional a violation
of the fourteenth Amendment. The crazy thing is we are
(01:17):
listening to not the actual opinion issued by Earl Warren,
because these cases were not recorded, were just on the edge,
just on the eve of the Supreme Court instituting the
practice of recording oral arguments. So the OYA project, which
(01:39):
is I love, is a project started by this guy,
Jerry Goldman, a political scientist, hero of evidence and justice,
who decided to make available to kind of research and
pull together all of the audio of all the Supreme
Court opinions and oral arguments where those existed as recordings.
(02:02):
It's all free and online at the OYA Project. It's
this amazing resource. I use it all the time. I
now never just go read Spreme Court opinion. I go
listen to the oral arguments because of.
Speaker 1 (02:12):
The day A consummates.
Speaker 3 (02:16):
Yeah, they're great. Like, it's an incredible thing that the
OYA Project exists, and it's really hugely meaningful historical record.
So Jerry Goldman got really interested in what it meant
that there's an absence of a record for Brown v.
Board of Education, because it's so important, and because we
also have the voices of the main participants. Earl Warren
(02:40):
had been governor of California. The we have plenty of
recordings of Earl Warren's voice before he was appointed to
the court by Eisenhower, after he was on the court.
But what we were just listening to was not the
opinion issued by Earl Warren, but a recreation of Earl
Warren's voice that is driven by a kind of really
(03:02):
interesting and surely increasingly common recreation of the transcript voice
actors reading the transcript and giving it emotional inflection and
pacing and tone, and then an ai recreated voice kind
of overlaid onto that.
Speaker 1 (03:21):
Like a mask I think is the term they use,
that it's the sort of performance within a mask on it.
I love that. It's very Batman and so I guess
there's a number of reasons why it feels so right
to celebrate this anniversary on the Last Archive today. One
is that we are inveterate reenactors of trials, sometimes hits,
(03:46):
sometimes misses. And then another is that Brown verse Board
of Education is really central to the inquiry of the show.
So much of the sort of epistemological backlash of the
twentieth century, at least the bad faith backlash is a
response to Brown and all these themes of brainwashing and
the kind of different cultures of knowledge emerging after the
(04:07):
mid twentieth century. It feels like it all comes out
of this this moment which a lot builds up to.
Speaker 4 (04:13):
Well.
Speaker 1 (04:13):
And then of course the third reason is just artificial
intelligence and how you know what you know? So it's
this very yeah, last archivy combination of things.
Speaker 3 (04:20):
So you will remember Ben that for the Last Archive.
Speaker 1 (04:24):
Second season second with the Scopes tra Yeah, yeah.
Speaker 3 (04:27):
So the Scopes Trial in nineteen twenty five somewhat similar
to the Brown case in that it was recorded and
was the first criminal trial ever broadcast on the radio.
It was broadcast nationwide. It was a huge phenomen People
sat around and listened to the Scopes trial, but none
of the radio broadcast was recorded, devastating. So like it is,
(04:52):
it is actually really interesting to think about it as
a listening experience because that's how people experienced it, and
yet we clen't recapture that. And so similarly, like Clarence Darrow,
like we have the William Jennings Bryan, the two attorneys
who argued the case. We have their voices. Their voices
are recorded, we know what they sounded like. So we,
(05:12):
without any ethical hesitation whatsoever, wide and recreated the Scopes trial.
Speaker 1 (05:19):
With actors via zoom because it was the early days
of the pandemic. So we were one step closer to
a fully artificially intelligent voice acting experience.
Speaker 3 (05:28):
So you know, we never I can't recall us ever
having conversations reason not to do that. I mean, anyway,
inherit the wind already exists and people think, so.
Speaker 1 (05:35):
Okay, no, but this I think is that is a
crucial I think the inherit the wind thing is a
crucial point because to me, there's this ipe craze in Hollywood.
People are increasingly making films based on real events. There's
a kind of historical acting style that emerges when people
have a lot of access to audio visual material, and
it's exemplified by something like Bradley Cooper and Maestro performing
(05:58):
as Leonard Bernstein, where you know famously he spent like
years studying film of his conducting style so he could
like perfectly do the movements. To me, it that turns
out to be something more like mimicry than real acting
or sort of real dramatic interpretation, something like Inherit the Wind,
we should say, the famous nineteen sixty film re enacting
(06:21):
the Scopes Trial starring an amazing Spencer Tracy. It bears
almost no resemblance.
Speaker 3 (06:28):
To the actual history, right, totally free rate.
Speaker 1 (06:30):
But it's totally transporting.
Speaker 3 (06:31):
Yeah, I know it's interesting, but I think too one
of the things that differentiates say, Inherit the Wind from
Maestro is Inherit the Wind maybe like a performance of
the Crucible, right, very much an updating of the story
for our own times. Right, it isn't about a kind
of backward looking Oh, let's transport ourselves to nineteen twenty
(06:52):
five and be in the Scopes trial. It's let's offer
up a moral fable that can help us understand McCarthyism. Right,
It's not about emulation, it's about adaptation, which has this
weird analog and constitutional interpretation, right, like do we look
backward at what the frame of the Constitution or the
fourteenth Amendment meant and intended and what they understood by
(07:15):
the words that they said, or do we adapt those
things for our own time. So that's what's the sort
of weird free selling around, like, oh, it's cool to
use these technologies to look backward, but also for what purposes?
Speaker 1 (07:28):
Well, this also it's sort of presented as a podcast.
The narrator her name is Karen Grigsby Bates. She's from
NPR both independently. Had sense that she sounds like a
young Nina Totenberg.
Speaker 3 (07:41):
Let's pause here for a quick explanation of what you're hearing.
No microphones were recording Warren's words that day in nineteen
fifty four. I just feel so taken care of.
Speaker 1 (07:51):
I would believe anything that was told me.
Speaker 3 (07:53):
It's good to tell me. So this is why I
have come out of my sabbatical to record a one
off episode of the Last Art Time with you, just
to think about how interesting this is. It really does
raise all kinds of questions for historical research and history
storytelling too, that I know, we you know, won't have
time to get into. But I decided I would try
(08:15):
to find out whether one of the voices at least
is accurate. But I wrote to four people I know
who were martial clerks, and I asked them to listen
to the recreated martial voice, and three of them said
more or less the same thing, which was that Marshall
famously could speak in many different voices, that he had
(08:36):
different accents that he could put on. I mean, he
grew up in Baltimore, but he had worked as a
pullman porter, you know, when he went and argued cases
in the South, he kind of deliberately sounded a little
bit more like a Southerner. But in a court room,
and certainly in the Supreme Court, he spoke in impeccable
enunciated Queen's English. Martha Minno told me that people come
from miles around just to hear a third good Marshall
(08:58):
argue in court, just because of the nature of the performance.
But you know, Harry Littman, who was also a Marshall clerk,
who's the host of the amazing podcast Talking Feds that
I'm obsessed with, he heard the recreated Marshal voice as
something of like something of a mashup of Marshall's many
different speaking styles. Cas Sunstein told me, you know, that
(09:22):
sounds a bit like when I knew him, but I'm
not super close. And then Randy Kennedy, a law school
professor at Harvard as well and a former Marshall clerk, said,
if you had not told me that the voice was
AI generated out of sworn that it was the real
third Good Marshal.
Speaker 1 (09:39):
Something that's interesting to me though about this. I love
hearing the reports of people who actually knew him, but
it also foregrounds for me this kind of maybe naive
to say, but incredible to me, fact that Brown resportive
education as a ruling well within the span of a
human lifetime. I mean, this is the seventieth anniversary, but
you're actually going to talk to a scholar, Kenneth Mack
(10:02):
from Harvard Law School who studies round resportive education now
about the significance of the case.
Speaker 3 (10:08):
Yeah, So, Ken, this amazing. He is just an incredibly
astute constitutional analyst, but he's also a legal historian, and
he's wrote this really amazing book on civil rights lawyering
and what it means to sort of try to represent
a race. So I wrote to Kenna say, like, this
(10:29):
is this crazy brown thing is coming out? What do
you make of it?
Speaker 5 (10:36):
Hi?
Speaker 4 (10:36):
Ken?
Speaker 3 (10:37):
Hey, how are you good?
Speaker 6 (10:39):
Good?
Speaker 4 (10:41):
Good?
Speaker 3 (10:41):
Thank you so much for doing this. I will confess
I'm completely fascinated by this project of trying to recreate
the entire audio landscape of Brown v. Board of Education.
So I wanted to ask you a little bit first though,
what the NAACP's legal strategy was here.
Speaker 6 (10:58):
Okay, all right, So the background for Brown versus the
Board of Education. The NAACP is the principal of civil
rights organization in the United States. Found in the early
twentieth century. By the nineteen thirties, the NAACP it began
(11:19):
to focus some of its energies on school desegregation. The
attack on segregated schools was led by two lawyers, one
of which was Thurgood Marshall, who had eventually become the
first black Supreme Court justice, and the other of which
was Charles Hamilton Houston, who was a black Harvard Law
(11:41):
School graduate. So the two of them began filing cases
in the nineteen thirties about schools, but most of them
were school equalization cases. So you've got a black school
in which the teachers are paid X at a white
school in which the teachers are paid Y. So we
followed suit to try to get the teachers paid equally.
(12:03):
There are a number of cases they bring that are
about primary secondary schools. Okay, we want equal salaries for
Blackack and white teachers or equal facilities for black and
white schools within the system of segregation. But there are
a bunch of university cases. The NACP challenges Missouri's practice
(12:26):
of excluding black people from its law school. You know,
there is no black law school and the white law
school is whites only. So the NACP brings a case saying, okay,
well there's no black law school, we should bit black
people to the white law school. And Supreme Court decides
in favor of the NAACP in that case.
Speaker 3 (12:48):
Which because there's no question, there's no question of equality
when there's an absence.
Speaker 6 (12:53):
Yeah, yeah, So the it's still within separate but equal, right,
because theoretically, if you built a black law school in Missouri,
you know, that would be okay within separate but equal,
But there is no black law school. In fact, to
build a black law school would be fantastically defensive. So
the logic of the case is actually an attack on separate
(13:14):
but equal, because you know, you can't build separate everything,
right law schools, dental schools, et cetera, et cetera. And
so that begins to set the stage for the cases
that would become brown versus more of education.
Speaker 3 (13:30):
So one of the things I love about these cases
is there's so much human drama. You know, Robert Jackson
has a heart attack, Fred Vinson just up and dies.
You know, the court changes, the cases argued more than once.
You know, there's like the drama of the day itself.
May seventeenth, nineteen fifty four, and the kind of you
get this real sense the country is on the edge
(13:50):
of its seat about the case at that point. But
then you know this from the historians point of view,
it's quite frustrating that none of this was recorded, and
it's just on the edge of when the court begins
recording its proceedings. So one of the things that I
think is really interesting about this OIA project attempts to
recreate the audio of it all, is can that sense
(14:11):
of human drama be captured with like artificially intelligent driven
recreation of voices. Let's listen to a little clip of
one of the recreated scenes, and then I don't kind
of want to hear your reaction to it. I think
this is from Spotswood Robinson arguing in the court.
Speaker 5 (14:34):
I think it is very clear that the frame was
intended to destroy the black Codes. I think it is
clear that they intended to deprive the states of all
power to enact similar laws in the future. I think
the evidence overall is clear that it was contemplated and
understood that the state would not be permitted to use
its power to maintain a class or caste system based
(14:55):
upon race or color, and that the Fourteenth Amendment would
operate as a prohibition against the imposition of any racial
classification in respect of civil rights.
Speaker 3 (15:06):
So, yeah, what's your reaction to that.
Speaker 6 (15:10):
Well, it's a lot of fun to hear to pretend
ones hearing spots with Robinson. You know, he's from Virginia.
It sort of sounds like what he would sound like.
Maybe although I never met him, so I don't really know.
To me, it's like listening to a movie traumatization, like
(15:30):
this is not Spotswood Robinson, but maybe you get a
sense of what it might have been like to have
heard him.
Speaker 7 (15:38):
Yeah.
Speaker 3 (15:38):
Yeah, there's a kind of combination of an actor underlay
and then some ai overlay in these voices. But thinking
about I'd love to hear more about what it meant
for someone like Robinson to do the work of lawyering.
Is there something about how you would imagine hearing that
(15:59):
or the way that that would come across in an argument.
I guess, like I'm not sure. It kind of gets
me there, that voice, right, Like there's something about the
the stakes.
Speaker 6 (16:12):
Yeah, it's it's it's every time these black lawyers go
to court in these civil rights cases, there's a lot
of drama just from the from the basic trial court
to the Supreme Court because in every case, you know,
in these courtrooms, there's never been a black person to
(16:33):
do this kind of thing. There are very few black lawyers.
If their good marshall goes to court in Virginia or
somewhere else in the South, nobody's ever seen a black lawyer.
Usually and nobody's seen a black layer talk to white
people the way that Thirgod Marshal gets to talk to
(16:53):
white people in court. But at the same time, you know,
there's a bunch of cases where Marshall's not sure if
he's going to be lynched for coming to court, and
in one case he almost is lynched and it's just
saved by one of his colleagues. So there's things like
that you just can't reconstruct, right, just the drama of
(17:17):
that moment.
Speaker 3 (17:18):
Yeah, let's listen to Marshall for a minute. What I
want to do is play this Ai Marshall, and then
we can listen to actual Marshal from the same year,
from fifty four, and see what you think.
Speaker 8 (17:32):
There is nothing in the debates that will hint in
the slightest that they did not mean complete equality. They
said so to raise the Negro up into the status
of complete equality with the other people. That is the
language they used. Substantial as a word. It was put
into the fourteenth Amendment by Plessy versus Furguson, and I
cannot find it, and it cannot be found in any
(17:53):
place in the debates.
Speaker 3 (17:55):
Okay, can we listen to the actual Marshal from the
same period.
Speaker 4 (18:01):
Despite the progress that's been made in twenty years, despite
the fondest hopes of a lot of people, we have
got before us a job for the future, and it's
not the type of job that can be solved solely
(18:23):
by government. It's a type of job that has to
be solved by individuals working on individuals.
Speaker 3 (18:33):
I don't know, what do you think.
Speaker 6 (18:35):
It's so striking that the two they don't quite sound alike.
They're similar, but also like, I know what Marshall sounded
like later in life. I didn't meet him, but he's
more gravely, like yeah, yeah, his voice is deeper later
in life. He his accent changes. So that's the other
(18:57):
thing you just can't capture. You don't know what he
sounded like in court because everybody said that when he
was in when he was in the South, he would
get a real Southern accent. Now when he's in a
Supreme court, he probably doesn't.
Speaker 3 (19:12):
Yeah, but we don't.
Speaker 6 (19:14):
Actually know that he's arguing with John W. Davis, you
know who knows. Yeah, So we can't capture that yeah aspect.
Speaker 3 (19:22):
Yeah, like he just was like a consummate code switcher,
which I guess We're not surprising when you think about
the kind of roles that he was playing, as you say,
and also traveling and speaking into different audiences.
Speaker 1 (19:35):
We'll be back with more in just a minute.
Speaker 3 (19:42):
I kind of want to go back to the case
itself and think about how close was Brown to being
decided differently.
Speaker 6 (19:52):
Yeah, we don't know how close Brown was to being
decided differently. We know that the first time it was argued,
it looks like maybe four justices were in favor of
overturning school segregation, and maybe two were in favor of
(20:12):
affirming it, and the others, including Felix Frankfurter, we don't
really know. So there's a lot of accidents, you know,
like this is history, right, History is you know, a
bunch of things happened, and some of them are planned,
and some of them are accidents, and some of them,
you know, an accident happens and then somebody takes advantage
(20:33):
of it and pushes it. So our main accident, of course,
is that Chief Justice Vincent dies and Brown is re
are argued, and in the second argument, the NAACP is
a lot more aggressive also, and you know what they
ask for and the kind of claims they make about
the original understanding of the fourteenth Amendment as prohibiting school segregation.
(20:58):
So these are all accidents. It was, you know, the
cases themselves were often accidents in the sense that the
cases kind of evolved. You know, the South Carolina case
breaks versus delegate starts with a request for a school bus, like, Okay,
if they gave the black kids a school bus, then
(21:19):
maybe the whole thing would have been different.
Speaker 3 (21:21):
I've been reading about, you know, that day and people's expectations,
a sort of reporter scrambling to go down to the
courthouse because finally this decision was going to be issued.
You know, it had been argued twice, it had been
in the news for a long time. The country's really
kind of on the edge of its seat about what
this decision is is going to look like. I was
(21:42):
reading the biography of Ethel Payne, who was the Washington
reporter for the Chicago Defender, and she had gone down
with the press and she talks about, you know, it
was noontime that the court was called into session, and
at the minute it became clear which way the decision
was going to go. When Warren got to you know,
(22:04):
a particular point in issuing the opinion, which he of
course read out loud that everybody the room already looked
the room to go report it. So let's hear when
he kind of gets to that point where you kind
of the reveal, where you kind of get a good
sense of how how the opinion is going to go.
Speaker 2 (22:22):
In approaching this problem, we cannot turn the clock back
to eighteen sixty eight when the amendment was adopted, or
even to eighteen ninety six when plus versus Ferguson was written.
We must consider public education in the light of its
full development and its present place in American life throughout
the nation. Only in this way can it be determined
(22:46):
if segregation in public schools deprives these plaintiffs of the
equal protection of the laws.
Speaker 3 (22:55):
What Ethel Payne talks about is that once the decision
went out on the radio, because people, the reporters who've
raced out of the room called the radio stations, you know,
call their newsrooms, that all the taxis in Washington, DC
started honking. All the taxi drivers were these black men,
and they all heard it on the radio at the
same time, and people were were like like an atomic
(23:16):
attack or something that they were like sirens going up.
The whole city kind of like exploded in this kind
of powerful noise, which I really love. But I'm wondering
if you just tell us, like, what is the opinion
and what's striking about it to you?
Speaker 6 (23:32):
Still?
Speaker 1 (23:33):
Today?
Speaker 6 (23:34):
I think a few things are striking about Warren's opinion today.
I mean one is it's written in very plain language.
You know, Warren is a politician. He knows how to communicate.
It's a big deal what Supreme Court is doing, and
he doesn't want it to feel technical. He wants it
to feel like something that people can understand. It also
(23:59):
sort of avoids the issue why exactly is school segregation
un constitutionally? Doesn't quite tell us, and we're still really
arguing today about you know, why was it unconstitutional? So
it's the way in which it's it's smart, it's plain,
it's it's written by somebody who knows how to write
(24:20):
an opinion that's going to be consumed by millions of
Americans who don't agree on the fundamental thing that he's deciding.
Speaker 3 (24:30):
And how did the country respond to it in fifty.
Speaker 6 (24:34):
Four, Well, there were a number of different responses. The
initial reaction was very muted, they're they're not these grand
gestures of defiance. I mean there there, there would be
pretty soon. I mean once you know, Martin Luther King
comes along, you know, basically not very long after, so
(24:54):
pretty soon there are these kind of grand gestures of
defiance of the both of the Supreme Corps to the
prospect of integration. But but in the white South, the
initial reaction is, you know, maybe pretty mutic compared to
what we might expect it to have been from our
our vantage for many years later.
Speaker 3 (25:17):
So one of the things I think about with Brown,
and this was really striking to me. Somehow listening to
the arguments made this more clear to me than reading them,
which was how intricately the NAACP lawyers are both insisting
on in an original intention argument about the Fourteenth Amendment,
(25:40):
that it had these anti slavery origins, that it was
an abolitionist idea, that it had this kind of open
ended meaning that could be construed to declare segregation unconstitutional,
in spite of the fact that all the members of
Congress who were involved in drafting the Fourteenth Amendment had
(26:01):
children who were going to segregated schools. Like the original
intention argument can go the other way. But they have this,
they're committed to that, but at the same time they
want to argue that original intention kind of doesn't matter,
and that really it's the social science that they're presenting.
This amazing, you know, this incredible. Uh so we will
call social psychology evidence about the consequences of segregation for
(26:22):
black children. Like they're throwing everything by way of evidence
and argument at defeating in this kind of grand sweeping way,
the very idea of separate but equal. By the time,
you know, they get to the actual second round of arguments,
and you know, looking from my point of view seventy
years on the legal arguments, that that argues not John
(26:46):
Davis's arguments in court in fifty three or something, but
the later legal arguments, you know, the sort of origins
of originalism case that the reaction to Brown leads a
group of scholars who would come to call themselves conservative
constitutionalists to emphasize that the original intention of the fourteenth
Amendment was never to end segregation and that therefore Brown
(27:08):
was wrongly decided. And you see this kind of whole
origin of some of our contemporary legal clashes around what
the Supreme Court does and how it makes its decisions.
So I'm struck listening to it at how like alive
those disputes still are.
Speaker 6 (27:31):
Yeah, I think we have always argued as Americans about
are founding principles and race. Right in the nineteenth century
it was was the Constitution pro slavery or anti slavery?
You know, pitched battles over that. And since Brown, it's
(27:52):
you know, how to understand the Fourteenth Amendment? Do we
look at its original understanding, intention, meaning, et cetera, et cetera.
Does that matter even when we look back to eighteen
sixty eight we get different answers there? Actually is it
one answer? I mean, Supreme Court is deciding cases at
(28:14):
this moment that are about how to understand both the
meaning around when it was decided and the meaning of
the Fourteenth Amendment when it was framed and ratified. And
you know, we've just been arguing about that for the
(28:36):
last seventy years, and we could continue to argue about that.
Speaker 3 (28:42):
I am really interested in the tech piece of this,
where this kind of AI voice recreation can give us
some proximate version that's maybe different than hiring actors, could
be cheaper for ordinary people to do. And since so
much of our constitutional discourse is about original intention, meaning
(29:07):
and understanding. So let's say someone wants to recreate the
debates of the congressional debates about the fourteenth Amendment as audio,
where the question of what did people mean when they
said these things is given a different weightiness if we're
(29:28):
listening to it and you're you know, the way the
AI might emphasize certain terms or recreate certain voices. Since
we care about what the framers of constitutional texts meant
when they said things, what would it mean if we
were listening to them? Would it have an effect on
(29:48):
how we interpret the constitution? Is there a conceivable future
in which this technology has implications for jurisprudence?
Speaker 6 (30:03):
You know, it's interesting when we kind of think about
what did Brown mean when it was decided, and if
we had some form of a access AI generated to
how people spoke about it, would it help us understand
what it meant? And I guess the answer was sort
(30:25):
of yes and no. You know, I'm a historian, so
I always think I'm committed to figuring out how people
thought about things in the past and trying to do
that as accurately as possible. And there's a way in
which AI is both facilitates and underminds that, right, because
you know, you can't you can't reconstruct how it sounded
(30:48):
in the past because you weren't there. We don't have
a recording. Even if we even if we had a recording,
we don't know what it feels like to be in
the room. So there's a way in which it's it's
it's great, and there's a win which it's a pipe dream.
I mean, you're just never going to be able to
get to the past. Yeah, and we almost have to
(31:08):
sort of leave it there.
Speaker 3 (31:10):
Yeah, no, we do, but that I think I have
this kind of completeness fantasy as a historian, and something
about this AI kind of speaks to that, like, oh
you could really you know, why did Warren write it
just that way? You can when you hear it, it would
be different, dirt, that's somehow we could get all the answers.
And but you're rational and wise and you know that's
(31:35):
not that that's not true. But also it shouldn't decide
for us how we live today, right, like at some level,
like that's kind of the turning point that Brown represents, Right,
even if we knew what the what the framers what
John Bingham meant when he drafted the fourteenth Amendment. Even
if we knew, we still know we should end segregation,
(31:56):
do you know what I mean? Like even like that,
that's the that's for me, the the kind of real
majesty of Brown is the naac's claim like, all right,
we're gonna make this argument about original intention, but it
actually what we're really going to say is this is
just wrong. And that's why I love this case. Like
that's why I love listening to Marshall and spots with'ms
and make these claims because you can hear like enough already, do.
Speaker 1 (32:21):
You know what I mean?
Speaker 6 (32:23):
Yeah, I mean I agree. I think that Brown was
as much about the moment it was decided as it
was about eighteen sixty eight. Like I mean, you know,
if you read about the justices, they.
Speaker 7 (32:37):
Kind of understood, you know, it's the nineteen fifties. Could
we really have school segregation? This thing is kind of wrong,
But then what are we supposed to do? How were
we supposed to write an opinion? But they kind of
know intuitively, at least most of.
Speaker 6 (32:50):
Them, that it seems incommensurate with nineteen fifties America to
have this and to not have any legal remedy. And
that's really what the case is about. And as you say,
the Thurgood Marshall and the NAACP lawyers they kind of
know that too. And we argue about all this technical stuff,
(33:12):
but really the case is about now, as in the
nineteen fifties for Brown. Yeah, but we argue about it.
It's always about now. We pretend like we're arguing about
nineteen fifty four or eighteen sixty eight, but we're really
always arguing about now.
Speaker 1 (33:33):
The special episode of the Last Archive was hosted by
Jill Lapour. It was produced by Ben Nattahaffrey and Amy
Gaines mcuaid. Editing on this episode by Lydia Jane Coott.
Today's episode was engineered and mastered by Sarah Briguere. Original
music by John Evans and Matthias Bossi of Stellwagen Symfinet.
Thank you to the Oya Project. We've included a link
(33:55):
to their amazing Brown Versus Board of Education website in
our show notes. We should check it out. Special thanks
to the Last Archives editor Sophie Crane, to Sarah Nix,
and to Gretecone
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