Posted Apr 01, 2004 09:37 pm CST
Fresh out of Northwestern Law School in the summer of 1953, Earl E. Pollock was awarded a clerkship in the chambers of the chief justice of the United States, Fred M. Vinson. It would not last long.
Vinson, an appointee and political associate of President Truman, had taken his seat in 1946, capping a career in Congress and the executive branch.
But seven years later, the court was in disarray. Factions had formed among the justices, and resentments simmered. Most observers acknowledge that Vinson had lost control over the bench.
In early September, a month before the start of the term and barely two months on the job, Pollock drove Vinson to the chief’s apartment in the Wardman Park section of Washington, D.C. Two days later, the chief justice was dead of a heart attack.
At Vinson’s funeral in Kentucky, Justice Felix Frankfurter pulled aside one of his former clerks and said, “This is the first solid piece of evidence that I have ever had that there is a God.”
Although Frankfurter did not regard Vinson highly, “I don’t think he made that comment out of animosity toward Vinson,” Pollock says. “Frankfurter properly recognized that Vinson was not the type of chief justice that could really meld the court together.”
Earl Warren was. President Eisenhower had promised the first open seat to the former California governor. More than that, someone was needed to calm the fractious court. Warren had been so politically popular he was re-elected in 1946 as both a Republican and a Democrat.
“Warren was very impressive physically and in terms of personality,” Pollock says. “He was a very warm person; he exuded leadership and integrity.” And, happily for Pollock, the new chief asked the young clerk to stay on.
As Warren awaited Senate confirmation, the court was gearing up for a momentous term. Weighing down the inbox, like a bulky package that couldn’t be ignored, was a series of cases from Kansas, South Carolina, Virginia, Delaware and the District of Columbia. Known as the segregation cases, they had been combined and named for the case from Topeka, Kan.: Brown v. Board of Education.
The case asked the court to go where it never had been before: to rid the nation of separate public schools for black children by pumping oxygen into the equal protection clause of the 14th Amendment. The case represented the latest and most prominent challenge to Plessy v. Ferguson, 163 U.S. 537, the notorious 1896 ruling that stamped the doctrine of separate but equal facilities for whites and minorities.
Brown had come before the court the previous term, but the litigation had been decades in the making. The NAACP Legal Defense and Educational Fund Inc. had been attacking segregation in several areas, among them public accommodations, housing and discriminatory covenants.
Another was public education, and LDF chief counsel Thurgood Marshall planned to strike high.
The LDF brought two higher education cases before the Vinson court in the 1949-50 term. In one, a black applicant rejected from the University of Texas law school was told to apply to a separate law school for blacks. Sweatt v. Painter, 339 U.S. 629. The second case involved a black graduate student who was assigned a separate classroom seat, library and cafeteria table. McLaurin v. Oklahoma State Regents, 339 U.S. 637.
The court ruled that the equal protection clause of the 14th Amendment was violated when blacks were provided separate but undeniably unequal educational facilities.
Vinson wrote both decisions—they were unanimous, but they held tightly to the facts. “Broader issues have been urged for our consideration,” Vinson wrote in Sweatt, “but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the court.” So, Vinson wrote, “Much of the excellent research and detailed argument presented in these cases is unnecessary to their disposition.”
Vinson was referring to briefs for those and another segregation case that term, involving the railroads, in which the government for the first time asked the Supreme Court to overturn Plessy.
The brief attacked Plessy head-on: “Segregation of Negroes as practiced in this country is universally understood as imposing on them a badge of inferiority.” The sentence echoed the wording in Plessy, but this time it linked segregation to stigma, rather than calling the connection a “fallacy.”
That argument changed the whole game, according to University of Chicago law professor Dennis Hutchinson. By raising personal harm to the individual black experiencing segregation, the government was expanding the inquiry from facilities—desks, chairs, tables—to the impact of racial classification itself.
But the court wouldn’t bite. It seemed the court couldn’t have both unanimity and a broad knockout punch to the separate-but-equal doctrine. So it chose the former.
Many of the justices saw a unanimous court as crucial to an attack on Plessy. The court feared the entrenched forces of segregation might cling to a dissent as a life preserver for Jim Crow.
But, Hutchinson says, “The problem with being unanimous is that you have to satisfy everybody, and you’re limited to the lowest common denominator among nine people.”
Yet, Hutchinson says, the consequences of the 1950 cases were profound. “It’s pretty clear that they crossed the Rubicon in 1950.” The next campaign was an advance on the public school system.
Brown came before the court two years later. Arguments were heard in December 1952, but as with the 1950 cases, the prevailing notion was that unanimity was essential.
Frankfurter “wanted the court to stand before the country on this issue united and speaking in a single voice,” said Philip Elman, who worked in the solicitor general’s office during Brown, in a 1987 interview with Harvard Law Review. Other justices felt similarly.
“The justices were all experienced political figures,” says Georgetown law professor Mark V. Tushnet. “They understood that this was to be an important political decision. As politicians, they believed the bigger the margin of victory, the more effective the ruling.”
But rough head counts showed that several would not sign on. By the sheer number of people involved, Brown challenged the court’s tradeoff of scope for unanimity. “When you’re talking about one student at the University of Texas law school, that’s one thing,” Hutchinson says. “But suddenly when you’re talking about 11 million schoolchildren, that’s a different story.”
The dynamics of the court, along with Vinson’s reluctance, made unanimity seem unreachable.
One obstacle was personality. Many of the brethren were larger-than-life individuals: Frankfurter, the Harvard law professor and adviser to Franklin Roosevelt; Robert Jackson, a country lawyer who became prosecutor at the Nuremberg trials; William O. Douglas, an outdoorsman from the Northwest who had chaired the Securities and Exchange Commission; Hugo Black, former Southern New Deal senator and once a member of the Ku Klux Klan.
The justices also split geographically: Southerners like Vinson—Tom Clark, also a Truman appointee and a Vinson acolyte; Stanley Reed; and Black—were wary of white reaction if the court moved too quickly. Black, who favored overruling Plessy, nevertheless perceived the difficulty of uniting Southerners and Northerners, Hutchinson says.
There also was the issue of judicial restraint. Among the Roosevelt appointees—chosen after the president’s battles with the Supreme Court over New Deal legislation—Frankfurter and Jackson particularly thought the court’s decisions should be limited, with many matters left to Congress and the executive.
“Jackson felt, ‘We’re here because Congress hasn’t acted, and the states haven’t acted,’ ” Hutchinson says.
At last, Frankfurter broke the stalemate through the simple tactic of delay. He formulated a series of new questions focusing on the intent of the post-Civil War 14th Amendment and how desegregation could be achieved. In June 1953, the court bound the cases over to the next term. Frankfurter called the move his “filibuster,” Tushnet says.
“Any other strategy would have been disastrous for everybody—the court, the country and, most sadly of all, blacks themselves,” Elman said.
It was particularly vexing for Frankfurter. After all, he had been a mentor at Harvard to Charles Hamilton Houston, one of the NAACP’s earliest crusading lawyers and a dean at Howard law school. Another protégé was William T. Coleman, whom the justice hired as the Supreme Court’s first black clerk and who later joined President Ford’s cabinet.
“Frankfurter needed time to work out in his mind why he could strike down segregation,” says Tushnet, a former Marshall clerk who has written extensively about Brown.
“Because of his New Deal experience, he developed a theory of judicial nonactivism, but he also was deeply committed to African-American rights. So he found himself in a theoretical bind: He would never vote to uphold Plessy, but how could he overturn Plessy without it being inconsistent with judicial restraint?” A year almost to the day after the first arguments in Brown the two sides appeared again—before the Warren court.
This time, the court did not dodge. “Taking the case was unavoidable,” Pollock says. “The NAACP and others maneuvered the litigation so as to present the court with a pretty clear-cut issue.”
In one of his first conferences, Warren displayed his political savvy. He insisted that no vote be taken, because, he later wrote, “When a person announces he has reached a conclusion, it is more difficult for him to change his thinking.” According to several justices’ notes, Warren made it plain that segregation had no place in contemporary America, and asked how the court could reach a unanimous decision to end segregated schools.
Warren’s position “was apparent to me in conversations about the case,” Pollock says, especially “in light of his background in California, where he had been emphatic in his view about racial equality and segregation.” As have others, Pollock wonders if Warren was remorseful because of his role in the Japanese internments during World War II.
The politicking among the justices had begun. “The general tenor was that probably there was a majority to strike down Plessy,” recalls E. Barrett Prettyman, then clerking for Jackson. “We thought there were going to be dissents, but we weren’t sure what the vote would be.”
Jackson, for one, needed convincing, says Prettyman, now of counsel at Hogan & Hartson in Washington. In March of 1954, the justice handed his clerk a 23-page memo that might serve as a concurrence.
In it, Jackson expressed his skepticism of “a recasting of society by judicial fiat,” adding that “any constructive policy for abolishing [segregation] must come from Congress.”
The justice also worried that a decree might “retard acceptance of this decision if the Northern majority of this court should make a pharisaic and self-righteous approach to this issue.”
Prettyman was critical. “The problem I had was it was negative in tone,” he recalls, “almost conceding that many state school systems would not pay attention to it.” Prettyman says he was also “concerned that people who were going to oppose it could use the language in it to fight the court.”
In response, the clerk told his boss exactly that. “I say this in all frankness,” Prettyman wrote back to Jackson. “If you are going to reach the decision you do, you should not write as if you were ashamed to reach it.”
Jackson’s viewpoint, Prettyman says, “was that even assuming there was valid ground to divide blacks from whites after the Civil War” when the 14th Amendment was adopted, “those circumstances long disappeared.”
No concurrence came. On March 30, Jackson was hospitalized after suffering a heart attack.
The lone holdout was Justice Reed, like Vinson, a Kentuckian. According to accounts, Reed couldn’t make the final leap. It was a conundrum all the justices faced, a generational shift.
“What had happened over the course of their lifetimes,” Tushnet says, “was that they had moved from a world in which they themselves accepted segregation as a natural part of society into a world where they now thought segregation should be done away with. They needed to explain to themselves how what they once accepted had changed.”
AN OPINION FOR THE PEOPLE
Warren reportedly leaned on his colleague, suggesting to Reed that his would be the only dissent. By the end of April 1954—four months after the case was reargued, a month and a half after the Senate confirmed him and barely two-and-a-half weeks before the decision was announced—Warren presented Pollock with a draft. The chief seemed to have something on paper that the justices would accept.
“He told me what he wanted was an opinion that was short, highly readable, that could be published in newspapers, and that would be understood by the average American,” Pollock says. “He wanted it as little legalistic as possible.”
Pollock took the draft, and starting the next morning worked straight through the weekend. Warren wanted the opinion in final form fast, Pollock says. The chief had unanimity, and he wouldn’t allow time for second thoughts.
“I read that Frankfurter sent Warren a little memo saying that an opinion is like a soufflé,” Pollock says. “It’s best when served hot.”
On Monday morning, May 3, Pollock handed Warren his revision and a memo suggesting handling the District of Columbia case in another opinion. Because the district came under federal jurisdiction, the case, Bolling v. Sharpe, 347 U.S. 497, involved the Fifth Amendment, rather than the 14th, which applied to states.
“I mostly followed the framework of Warren’s draft,” Pollock says. The chief had “a couple of very famous sentences that wound up in the final opinion.”
Among them: “We cannot turn the clock back to 1868 when the [14th] Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.” Another: “To separate [blacks] of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”
But, Pollock says, “I felt there had to be more specific language dealing with Plessy, to make it clear why Plessy had to be overruled.”
Pollock continues: “The real problem with Plessy was this ridiculous notion that if blacks perceived a mark of inferiority, it was just their imagination. I thought that had to be repudiated.” So Pollock added: “Any language in Plessy contrary to this finding is rejected.”
Pollock also inserted a section referring to the earlier segregation cases, the 1950 trilogy among them, “in which the court finesses the issue.” Pollock says he needed “to demonstrate that, OK, this is the history. So now that you have come up to this point, that kind of evasion is unacceptable.”
Another Pollock addition, he says, was language that placed Brown under the 14th Amendment’s equal protection clause, rather than under both equal protection and due process, as Warren originally had it.
The opinion was to be unemotional and nonaccusatory, Pollock says. That was key to swaying Southerners. In sum, Warren allowed that regardless of the state of race relations after the Civil War or at the time of Plessy, in mid-20th century America, public school education was the lifeblood of a thriving democracy.
The intent of the 14th Amendment regarding public education—the question Frankfurter posed for reargument —was “inconclusive,” Warren wrote. That was then, the chief was saying; this is now.
The decision also incorporated the sea change in the notion of separate but equal, from “physical facilities and other tangible factors,” to the sweeping concept of “equal educational opportunities.”
After another Warren clerk added footnotes—including the controversial Footnote 11, which details psychologists’ findings about the harm of segregation—the two clerks were dispatched to present the draft to the other justices. Pollock and his colleague found Black on the tennis court; the justice stopped the match, read the opinion and sent them on their way.
Warren took the draft to the hospital, to the ailing Jackson. “He made several suggestions; most of them Warren turned down,” says Prettyman, who was visiting with Jackson at the time. Prettyman read it; Jackson signed off on it.
The next time Jackson and Warren came together was May 17, when Jackson appeared at the Supreme Court building. “People didn’t know whether he was well or whether this was significant,” Prettyman says. “He was there against doctors’ orders.”
In those days, Prettyman recalls, opinions were sent to the press room. “But they didn’t do that with Brown,” he says. The press scampered up to the courtroom when they realized the decision was about to be announced. “Warren was precise,” Prettyman says. “He seemed to be relaxed but very serious.”
Says Pollock: “In reading the case for the first several minutes, he didn’t disclose how the court was ruling. There was suspense in how it was going to end.” The chief justice deviated only once from the text. On reaching the holding, Warren started, “We conclude … .” He then added the word “unanimously.”
There was an audible gasp throughout the courtroom, Prettyman says. According to accounts, Thurgood Marshall, anxious over a possible dissent, looked at Justice Reed, who returned Marshall’s gaze and nodded. Warren continued, “That in the field of public education, the doctrine of separate but equal has no place.”
After the opinion was announced, a jubilant Marshall told The New York Times that school segregation would be eliminated within five years, according to accounts.
The law clerks were more guarded. “It seemed to me unquestionably of enormous importance,” says Pollock, “but I didn’t at the time see that it would be quite so fundamental in bridging the gap between two separate parts of the country.” After all, he says, “It was limited to public school education.”
NOW FOR THE HARD PART
Yet, as with the 1950 cases, unanimity came at a cost. This time, instead of trading unanimity for a broad attack on Plessy, the justices swapped it for spelling out a remedy to segregated schools. Again, they bound it over to the next term, this time for arguments on how to get hundreds of recalcitrant and very likely hostile school districts to comply.
Dividing the case was controversial, because it involved splitting a constitutional right from its remedy. In Sweatt, for example, the court said the plaintiff had the right to attend law school; the remedy was to admit him.
But the justices feared a violent reaction, especially in the South. As he had after the first round of Brown arguments under Vinson, Frankfurter had hoped that delay would allow time for the reluctant to get accustomed to the idea. It was also a tactic to derive unanimity in both cases.
“No one had any idea what was going to happen” after Brown, Prettyman says. “Many saw the possibility of blood in the streets. We were all nervous.” The clerks formed an interoffice committee to explore how the court could order implementation. Prettyman studied maps to examine how school districts were drawn. “I became aware of the extraordinarily large number of school systems, not just in the South, but throughout the country,” he says, “and the amazing number of ways of assigning people to schools.”
The problem was so complex, Prettyman says, “a decree would have been hundreds of pages long. I said, ‘We can’t do this. We have to leave it to the people at the scene to decide how to proceed.’ ”
The court did so, issuing its decision, known as Brown II, 349 U.S. 294, a year after the first ruling. In the opinion, written by Warren, the court deemed itself a court of equity, “characterized by a practical flexibility in shaping its remedies.” Local district courts were called on to resolve the problem of segregated schools “with all deliberate speed.”
The expression, an oxymoron, was submitted by Frankfurter, who took it from a 1918 decision by Oliver Wendell Holmes on how West Virginia should repay its debt after breaking from Virginia.
After the court handed down Brown II, Justice Sherman Minton was quoted as saying it would take 10 years before schools would completely desegregate. “Now we know that it didn’t occur in 10 years,” Hutchinson says. “The progress promised by Brown didn’t occur until the 1960s,” he says, with the passage of the civil rights legislation.
Frankfurter, too, was overly optimistic about prospects for peaceful gradual change in the South, Tushnet says. “ ‘All deliberate speed’ was functionally a failure, especially in the deep South.” And yet, he adds, “An order directing immediate desegregation would have had no greater effect,” given Southern resistance.
So how successful was Brown? “It depends on what it was trying to achieve,” Hutchinson says. “If the idea was to get rid of state-labeled segregation, it was a success. If you think it promised integration, it was a failure, North and South.”
Another criticism is that the decision is, by Warren’s design, short on law. Yet that also is seen as the beauty of it. “The wonderful thing about Brown is that there is so little law to it that it can be remade by any generation,” says Hutchinson. “It’s a moral prayer. The court is saying we’ve behaved this way for a long time, but now times have changed. It’s a plea for people to change their habits.”
Tushnet adds points for courage: “It was a statement about the moral imperative of racial equality, issued by one of the premier institutions when no one else would do it.”
For his part, Pollock, retired in Florida after a career as an antitrust lawyer in Chicago, acknowledges the criticism. “A lot of the criticism is based on the notion that the opinion should have been written to satisfy lawyers and law professors,” he says. “But it wasn’t written for that. If it was 50 pages long, like many opinions today, it would never have gotten unanimous support.”
Pollock continues: “The purpose was to write short, tight and bring the opinion as soon as possible. It was to be readable by the American people.”
A half-century later, the former clerk still tips his hat to his onetime boss. “The chief set out the framework, and he accomplished his objectives,” Pollock says. “He is due an extraordinary amount of credit for getting the court together. That short, concise statement contains some of his ringing phrases. It can be read today and still bring a lump to the throat.”