Justice for All (113 page)
Authors: Jim Newton
CHAPTER 17. ALL MEN ARE CREATED EQUAL
CHAPTER 18. JUSTICE
1
I have not attempted a complete history of the segregation cases. For those interested in such an analysis, Richard Kluger's
Simple Justice
remains the definitive work, arrestingly written and meticulously accurate. I have relied on it extensively, as have all serious students of the period.
I have not attempted a complete history of the segregation cases. For those interested in such an analysis, Richard Kluger's
Simple Justice
remains the definitive work, arrestingly written and meticulously accurate. I have relied on it extensively, as have all serious students of the period.
2
Vernon Parrington,
Main Currents in American Thought
, vol. 3,
The Beginnings of Critical Realism in America, 1860-1920
, p. 410. Quoted from Gunnar Myrdal,
An American Dilemma
, pp. 6-7.
Vernon Parrington,
Main Currents in American Thought
, vol. 3,
The Beginnings of Critical Realism in America, 1860-1920
, p. 410. Quoted from Gunnar Myrdal,
An American Dilemma
, pp. 6-7.
4
Ibid.
Ibid.
5
Ibid.
Ibid.
6
Ibid. (dissent).
Ibid. (dissent).
8
Ibid., pp. 121-22.
Ibid., pp. 121-22.
9
State of Missouri ex rel. Gaines v. Canada
, 305, U.S. 337 (1938). “Negro” does not have a capital N in the opinion; the stylistic decision rankled Marshall, who always capitalized it in his briefs and resented it when others did not.
State of Missouri ex rel. Gaines v. Canada
, 305, U.S. 337 (1938). “Negro” does not have a capital N in the opinion; the stylistic decision rankled Marshall, who always capitalized it in his briefs and resented it when others did not.
10
Ibid. (separate opinion).
Ibid. (separate opinion).
13
Ibid.
Ibid.
14
Ibid.
Ibid.
16
Ibid.
Ibid.
17
Ibid.
Ibid.
19
Executive Order 9981, “Establishing the President's Committee on Equality of Treatment and Opportunity in the Armed Services,” signed by Truman, July 26, 1948. The document is contained in the desegregation collection of the Truman Presidential Library.
Executive Order 9981, “Establishing the President's Committee on Equality of Treatment and Opportunity in the Armed Services,” signed by Truman, July 26, 1948. The document is contained in the desegregation collection of the Truman Presidential Library.
21
William Faulkner,
Essays, Speeches and Public Letters
, p. 107 (from “A Letter to the Leaders in the Negro Race,” first published in
Ebony
, Sept. 1956).
William Faulkner,
Essays, Speeches and Public Letters
, p. 107 (from “A Letter to the Leaders in the Negro Race,” first published in
Ebony
, Sept. 1956).
23
Ibid., p. 294.
Ibid., p. 294.
24
Ibid., p. 395.
Ibid., p. 395.
33
Ibid., p. 165.
Ibid., p. 165.
35
Ibid., p. 573.
Ibid., p. 573.
36
Ibid., p. 581.
Ibid., p. 581.
37
Conference notes of Robert Jackson, Dec. 12, 1952, LOC, MD, Jackson papers, Legal file, Supreme Court, October term 1953, Segregation case file.
Conference notes of Robert Jackson, Dec. 12, 1952, LOC, MD, Jackson papers, Legal file, Supreme Court, October term 1953, Segregation case file.
38
Douglas, “Memorandum for the File in re Segregation Cases,” May 17, 1954, LOC, MD, William O. Douglas papers, Part II, Segregation Cases file. Included in the file are Douglas's notes from the December 12, 1952, conference, mislabeled “Dec. 13, 1952.” Jackson's notes support most of Douglas's observations of the conference.
Douglas, “Memorandum for the File in re Segregation Cases,” May 17, 1954, LOC, MD, William O. Douglas papers, Part II, Segregation Cases file. Included in the file are Douglas's notes from the December 12, 1952, conference, mislabeled “Dec. 13, 1952.” Jackson's notes support most of Douglas's observations of the conference.
39
Conference notes of Robert Jackson, Dec. 12, 1952, LOC, MD, Jackson papers, Legal file, Supreme Court, October term 1953, Segregation case file.
Conference notes of Robert Jackson, Dec. 12, 1952, LOC, MD, Jackson papers, Legal file, Supreme Court, October term 1953, Segregation case file.
40
Douglas conference notes, Dec. 12, 1952, LOC, MD, Douglas papers, Supreme Court file, Case file, Segregation cases folder.
Douglas conference notes, Dec. 12, 1952, LOC, MD, Douglas papers, Supreme Court file, Case file, Segregation cases folder.
41
Jackson conference notes, Dec. 12, 1952, LOC, MD, Jackson papers, Legal file, Supreme Court, October term 1953, Segregation case file.
Jackson conference notes, Dec. 12, 1952, LOC, MD, Jackson papers, Legal file, Supreme Court, October term 1953, Segregation case file.
42
Douglas “Memorandum for the File, in re Segregation Cases,” May 17, 1954, LOC, MD, Douglas papers, Supreme Court file, Case file, Segregation cases folder.
Douglas “Memorandum for the File, in re Segregation Cases,” May 17, 1954, LOC, MD, Douglas papers, Supreme Court file, Case file, Segregation cases folder.
43
Ibid.
Ibid.
44
Douglas conference notes, Dec. 12, 1952, LOC, MD, Douglas papers, Supreme Court file, Case file, Segregation cases folder.
Douglas conference notes, Dec. 12, 1952, LOC, MD, Douglas papers, Supreme Court file, Case file, Segregation cases folder.
45
As he contemplated the cases, Jackson appears to have solicited the input of his clerks. One of their memos deserves special note because its author was William H. Rehnquist, later to join the Court himself and to ascend to the chief justiceship. In 1952, young William Rehnquist took the position that
Plessy
was correctly decided and should be upheld. “I realize that is an unpopular and unhumanitarian position, for which I have been excoriated by âliberal' colleagues, but I think
Plessy
was right,” Rehnquist wrote. Fourteen years later, when his own appointment to the Court was presented to the Senate for its consideration, Rehnquist said those words had been written for Jackson to present to the other justices at conference and were not Rehnquist's own views. That argument is almost certainly false, however, as the language and approach of the memo strongly suggest Rehnquist was speaking for himself. It is inconceivable, for instance, that Jackson would have so patronized his colleagues of long standing as to address them in conference by complaining that they had “excoriated” him; Rehnquist, by contrast, did in fact complain of the influence of liberal clerks on the Court over their justices and after leaving the Court wrote an article to that effect. And even should Jackson have complained of “excoriation,” would he have identified his critics as “liberal colleagues”? Jackson was a proponent of judicial restraint, but he was a lifelong Democrat, a friend and ally of FDR, and that president's solicitor general and attorney general. Perhaps most tellingly, Rehnquist's memo derided previous Court rulings that attempted to protect minorities and singled out the Jehovah's Witness flag case as one in which the Court overreached. It is ludicrous to think Jackson would cite that case for that proposition. The Jehovah's Witness opinion was written by Jackson himself, and it was one of his most celebrated opinions.
As he contemplated the cases, Jackson appears to have solicited the input of his clerks. One of their memos deserves special note because its author was William H. Rehnquist, later to join the Court himself and to ascend to the chief justiceship. In 1952, young William Rehnquist took the position that
Plessy
was correctly decided and should be upheld. “I realize that is an unpopular and unhumanitarian position, for which I have been excoriated by âliberal' colleagues, but I think
Plessy
was right,” Rehnquist wrote. Fourteen years later, when his own appointment to the Court was presented to the Senate for its consideration, Rehnquist said those words had been written for Jackson to present to the other justices at conference and were not Rehnquist's own views. That argument is almost certainly false, however, as the language and approach of the memo strongly suggest Rehnquist was speaking for himself. It is inconceivable, for instance, that Jackson would have so patronized his colleagues of long standing as to address them in conference by complaining that they had “excoriated” him; Rehnquist, by contrast, did in fact complain of the influence of liberal clerks on the Court over their justices and after leaving the Court wrote an article to that effect. And even should Jackson have complained of “excoriation,” would he have identified his critics as “liberal colleagues”? Jackson was a proponent of judicial restraint, but he was a lifelong Democrat, a friend and ally of FDR, and that president's solicitor general and attorney general. Perhaps most tellingly, Rehnquist's memo derided previous Court rulings that attempted to protect minorities and singled out the Jehovah's Witness flag case as one in which the Court overreached. It is ludicrous to think Jackson would cite that case for that proposition. The Jehovah's Witness opinion was written by Jackson himself, and it was one of his most celebrated opinions.
47
Douglas “Memorandum for the File in re Segregation Cases,” May 17, 1954, LOC, MD, William O. Douglas papers, Part II, Segregation Cases file.
Douglas “Memorandum for the File in re Segregation Cases,” May 17, 1954, LOC, MD, William O. Douglas papers, Part II, Segregation Cases file.
48
Frankfurter memorandum for the conference, June 4, 1953, LOC, MD, William O. Douglas papers, Part II, Segregation Cases file.
Frankfurter memorandum for the conference, June 4, 1953, LOC, MD, William O. Douglas papers, Part II, Segregation Cases file.
1
Thomas Jefferson,
Autobiography
, included in
Jefferson, Writings
, p. 44 (quoted in Gunnar, Myrdal,
An American Dilemma
, p. 85).
Thomas Jefferson,
Autobiography
, included in
Jefferson, Writings
, p. 44 (quoted in Gunnar, Myrdal,
An American Dilemma
, p. 85).
3
Burton diary entry, Dec. 8, 1953, LOC, MD, Harold H. Burton papers, Diaries, 1953.
Burton diary entry, Dec. 8, 1953, LOC, MD, Harold H. Burton papers, Diaries, 1953.
5
William O. Douglas and Harold Burton notes on conference, Dec. 12, 1953, LOC, MD, William O. Douglas papers (Segregation Cases file) and Harold F. Burton papers. See also Del Dickson,
The Supreme Court in Conference
, p. 654.
William O. Douglas and Harold Burton notes on conference, Dec. 12, 1953, LOC, MD, William O. Douglas papers (Segregation Cases file) and Harold F. Burton papers. See also Del Dickson,
The Supreme Court in Conference
, p. 654.
6
William O. Douglas and Harold Burton notes on conference, Dec. 12, 1953, LOC, MD, William O. Douglas papers (Segregation Cases file) and Harold F. Burton papers.
William O. Douglas and Harold Burton notes on conference, Dec. 12, 1953, LOC, MD, William O. Douglas papers (Segregation Cases file) and Harold F. Burton papers.
7
William O. Douglas notes on conference, Dec. 12, 1953, LOC, MD, William O. Douglas papers, Segregation Cases file. Douglas's notes list Black as “absent.”
William O. Douglas notes on conference, Dec. 12, 1953, LOC, MD, William O. Douglas papers, Segregation Cases file. Douglas's notes list Black as “absent.”
9
Interviewed by Drew Pearson in 1967, Warren gave a truer account. Although that interview never was published, Pearson's notes indicate the lineup as Warren saw it. “Minton, Burton, no trouble . . .”Pearson wrote. “Clark a little trouble. Stanley Reed lot of trouble.” Pearson interview notes, Aug. 21, 1967, Pearson papers, LBJ Library.
Interviewed by Drew Pearson in 1967, Warren gave a truer account. Although that interview never was published, Pearson's notes indicate the lineup as Warren saw it. “Minton, Burton, no trouble . . .”Pearson wrote. “Clark a little trouble. Stanley Reed lot of trouble.” Pearson interview notes, Aug. 21, 1967, Pearson papers, LBJ Library.
10
William O. Douglas notes on conference, Dec. 12, 1953, LOC, MD, William O. Douglas papers, Segregation Cases file.
William O. Douglas notes on conference, Dec. 12, 1953, LOC, MD, William O. Douglas papers, Segregation Cases file.
11
Ibid.
Ibid.
13
Douglas, “Memorandum for the File in re Segregation Cases,” May 17, 1954, LOC, MD, William O. Douglas papers, Segregation Cases file.
Douglas, “Memorandum for the File in re Segregation Cases,” May 17, 1954, LOC, MD, William O. Douglas papers, Segregation Cases file.
14
Douglas conference notes, Dec. 12, 1953, LOC, MD, William O. Douglas papers, Segregation Cases file.
Douglas conference notes, Dec. 12, 1953, LOC, MD, William O. Douglas papers, Segregation Cases file.
16
Warren's calendars, as maintained by the LOC, MD, begin in early 1954; Burton's diaries, however, cover late 1953 as well.
Warren's calendars, as maintained by the LOC, MD, begin in early 1954; Burton's diaries, however, cover late 1953 as well.
17
Burton diary entries for Dec. 12, 14, 15, 16, 17, and 18, 1953, LOC, MD, Harold H. Burton papers, 1953 Diaries.
Burton diary entries for Dec. 12, 14, 15, 16, 17, and 18, 1953, LOC, MD, Harold H. Burton papers, 1953 Diaries.
18
Burton diary entry, Jan. 15, 1954, LOC, MD, Harold H. Burton papers, 1954 Diaries.
Burton diary entry, Jan. 15, 1954, LOC, MD, Harold H. Burton papers, 1954 Diaries.
19
Burton diary entry, Jan. 16, 1954, LOC, MD, Harold H. Burton papers, 1954 Diaries.
Burton diary entry, Jan. 16, 1954, LOC, MD, Harold H. Burton papers, 1954 Diaries.
20
Eisenhower invitation to Warren, Jan. 12, 1954, LOC, MD, Warren papers, Personal File, Presidents' Correspondence, 1953-1963.
Eisenhower invitation to Warren, Jan. 12, 1954, LOC, MD, Warren papers, Personal File, Presidents' Correspondence, 1953-1963.
21
Memoirs
, p. 291. Some others, in relating this exchange, have recorded that Eisenhower used the term “bucks,” rather than “Negroes,” supporting that claim by noting that Eisenhower on other occasions did resort to that slur. In this case, however, only Eisenhower and Warren were parties to the remark, and since Eisenhower never acknowledged it and Warren recorded it this way, there is no credible evidence that Eisenhower used the slur.
Memoirs
, p. 291. Some others, in relating this exchange, have recorded that Eisenhower used the term “bucks,” rather than “Negroes,” supporting that claim by noting that Eisenhower on other occasions did resort to that slur. In this case, however, only Eisenhower and Warren were parties to the remark, and since Eisenhower never acknowledged it and Warren recorded it this way, there is no credible evidence that Eisenhower used the slur.
22
Jack Slater, “1954 Revisited,”
Ebony
, May 1974, p. 126. The exact date of this trip is unknown, as it does not appear on Warren's schedules for early 1954. Warren's weekends were often left open, however, so it could have taken place then, or in the fall of 1953, before the period in which his schedules were saved.
Jack Slater, “1954 Revisited,”
Ebony
, May 1974, p. 126. The exact date of this trip is unknown, as it does not appear on Warren's schedules for early 1954. Warren's weekends were often left open, however, so it could have taken place then, or in the fall of 1953, before the period in which his schedules were saved.
23
Author interview with Judge James Lee Warren, Nov. 24, 2003.
Author interview with Judge James Lee Warren, Nov. 24, 2003.
24
“Supreme Court Law Clerks' Recollections of
Brown v. Board of Education
,”
St. John's Law Review
, volume 78 (Summer 2004), p. 529. Some analysts have surmised that Jackson drafted his memo in early 1954, but his clerk E. Barrett Prettyman, Jr., recalls that he began on December 11, 1953. An uncirculated memo among Jackson's papers is dated December 7, 1953, just a few days before the December 12 conference.
“Supreme Court Law Clerks' Recollections of
Brown v. Board of Education
,”
St. John's Law Review
, volume 78 (Summer 2004), p. 529. Some analysts have surmised that Jackson drafted his memo in early 1954, but his clerk E. Barrett Prettyman, Jr., recalls that he began on December 11, 1953. An uncirculated memo among Jackson's papers is dated December 7, 1953, just a few days before the December 12 conference.
25
Jackson memo on segregation cases, Dec. 7, 1953, LOC, MD, Jackson papers, Legal file, Supreme Court, Segregation cases. Subsequent drafts in January, February and March are also in the file.
Jackson memo on segregation cases, Dec. 7, 1953, LOC, MD, Jackson papers, Legal file, Supreme Court, Segregation cases. Subsequent drafts in January, February and March are also in the file.
26
Undated Prettyman memorandum to Jackson, “Re Nos. 1-4,” LOC, MD, Jackson papers, Legal file, Supreme Court, Segregation cases.
Undated Prettyman memorandum to Jackson, “Re Nos. 1-4,” LOC, MD, Jackson papers, Legal file, Supreme Court, Segregation cases.
28
Ibid., p. 543.
Ibid., p. 543.
29
Undated memorandum. This draft, written in Warren's hand, is contained with his papers at the LOC, MD, Warren papers, segregation case file.
Undated memorandum. This draft, written in Warren's hand, is contained with his papers at the LOC, MD, Warren papers, segregation case file.
30
Author interview with Earl Pollock, Jan. 10, 2005. The date comes from “Supreme Court Law Clerks' Recollections of
Brown v. Board of Education
,” p. 551.
Author interview with Earl Pollock, Jan. 10, 2005. The date comes from “Supreme Court Law Clerks' Recollections of
Brown v. Board of Education
,” p. 551.
31
Author interview with Earl Pollock, Jan. 10, 2005.
Author interview with Earl Pollock, Jan. 10, 2005.
32
Ibid.
Ibid.
37
Burton diary entry, May 8, 1954. LOC, MD, Harold H. Burton papers, 1954 Diaries.
Burton diary entry, May 8, 1954. LOC, MD, Harold H. Burton papers, 1954 Diaries.
38
Warren letter to Jackson, April 2, 1954, LOC, MD, Robert Jackson papers, General correspondence file, Warren folder.
Warren letter to Jackson, April 2, 1954, LOC, MD, Robert Jackson papers, General correspondence file, Warren folder.
39
Warren schedule, May 13, 1954, LOC, MD, Earl Warren papers, Personal file, 1954 Calendars.
Warren schedule, May 13, 1954, LOC, MD, Earl Warren papers, Personal file, 1954 Calendars.
41
Ibid., p. 553.
Ibid., p. 553.
43
Burton diary entry, May 8, 1954, LOC, MD, Harold H. Burton papers, 1954 Diaries. Burton's diary reflects his observations before the final vote was taken, on May 15, but after Burton had concluded that the draft was likely to win a united Court.
Burton diary entry, May 8, 1954, LOC, MD, Harold H. Burton papers, 1954 Diaries. Burton's diary reflects his observations before the final vote was taken, on May 15, but after Burton had concluded that the draft was likely to win a united Court.
44
Ibid.
Ibid.
45
Chief Justice calendars, May 16, 1954, LOC, MD, Warren papers, Personal file, Warren's schedule lists their hike as along the “B & O Canal,” but that is undoubtedly a typo.
Chief Justice calendars, May 16, 1954, LOC, MD, Warren papers, Personal file, Warren's schedule lists their hike as along the “B & O Canal,” but that is undoubtedly a typo.
47
New York Times
, May 18, 1954. The
Times
recorded Nina's presence but not Helen MacGregor's. Her recollection comes from the oral history interview with her in
A Career in Public Service with Earl Warren
, p. 129.
New York Times
, May 18, 1954. The
Times
recorded Nina's presence but not Helen MacGregor's. Her recollection comes from the oral history interview with her in
A Career in Public Service with Earl Warren
, p. 129.
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