In oral argument of the case, Thurgood Marshall had urged the trial court to create judicial history by abandoning, on its own motion, the precedents of many years in support of “separate but equal.” Judges Parker and Timmerman were not willing to do so. These unreversed decisions, they said, were squarely in point and conclusive. If this long line of cases were to be overturned or held outmoded, the Supreme Court itself would have to take that step. And Parker concluded:
To this we may add that, when seventeen States and the Congress of the United States have for more than three-quarters of a century required segregation of the races in the public schools, and when this has received the approval of the leading appellate courts of the country including the unanimous approval of the Supreme Court of the United States at a time when that Court included Chief Justice Taft and Justices Stone, Holmes and Brandeis, it is a late day to say that such segregation is violative of fundamental constitutional rights. It is hardly reasonable to suppose that legislative bodies over so wide a territory, including the Congress of the United States, and great judges of high courts have knowingly defied the Constitution for so long a period or that they have acted in ignorance of the meaning of its provisions. The constitutional principle is the same now that it has been throughout this period; and if conditions have changed so that segregation is no longer wise, this is a matter for the legislatures and not for the courts. _The members of the judiciary have no more right to read their ideas of sociology into the Constitution than their ideas of economics._ [Emphasis supplied.]
In the course of time, to be sure, the Warren court was to do precisely what Judge Parker said judges ought never to do, but nearly three years were to elapse before that famous decree would descend upon the South. Meanwhile, the other three cases, in Kansas, Virginia, and Delaware, were still to be tried. They followed the Clarendon pattern rather closely. In Topeka, counsel for the Negro plaintiffs made little effort to show physical inequalities in the city’s white and Negro schools. The city was then operating eighteen white schools and four Negro schools, under a State law permitting, but not compelling, racial separation. The trial court found as a fact (98 F. Supp. 797) that the facilities were substantially equal: “It is obvious that absolute equality of physical facilities is impossible of attainment.” The broader question presented by the plaintiffs “poses a question not free from difficulty,” but Judge Walter A. Huxman and his colleagues in Kansas was no more disposed than Judge Parker and Judge Timmerman in South Carolina to upset long-established precedents. The three-judge court unanimously upheld segregation in the Topeka schools.