Of the many equivocal signals sent by Chief Justice Earl Warren's opinion for the Court in Brown v. Board of Education II (1955), the phrase came to symbolize the Court's hesitancy about desegregation and became a rationalization for those resisting change. The phrase was placed in the opinion at the insistence of Justice Felix Frankfurter, who thought, inaccurately, that the formulation originated with Justice Oliver Wendell Holmes in his interpretation of nineteenth‐century equity practice. The original source was a poem, “The Hound of Heaven,” by the nineteenth‐century Catholic devotional writer Francis Thompson (1859–1907). The Court shunned further reliance on the notion in Griffin v. County School Board of Prince Edward County in 1964 and repudiated the phrase in Green v. County School Board of New Kent County in 1968. That same year, Justice Hugo Black criticized the Court's use of the phrase during a television interview—at the time an unprecedented off‐the‐bench criticism of a governing opinion by a sitting justice.
— Dennis J. Hutchinson
