(article is from the news section of the Jamestown Post-Journal)
4/28/2004 - By JOHN WHITTAKER
For the first time in more than 50 years, four influential men involved with
the unanimous Supreme Court decision in Brown v. Board of Education will appear
in the same room together.
E. Barrett Prettyman, a former Robert H. Jackson law clerk, will join with fellow
Supreme Court law clerks John David Fassett, Frank E.A. Sander and Earl Pollock
for a discussion at 10:30 a.m. today in the Robert H. Jackson Center's Carl
Cappa Theater to discuss their roles in the case. Anyone planning to attend
is asked to be inside the theater by 10:15 a.m. due to production requirements.
While the four men haven't been in the same room since they finished their clerkships,
Prettyman said he has seen Sander at previous functions honoring Justice Felix
Frankfurter.
''We all knew each other very well,'' he said. ''We saw each other almost every
day at lunch and we would visit each other's chambers. It was a much more collegial
atmosphere then.''
Prettyman was interviewed Tuesday for the Jackson Center's archives. Before
the interview, Prettyman was able to relive part of his clerkship by watching
a 10-minute excerpt of the film Separate But Equal.
The film - starring Sidney Poitier, Burt Lancaster and Richard Kiley - was shown
in late March and early April at the Jackson Center. It is the true story leading
up to the Supreme Court's landmark 1954 decision in Brown v. Board of Education
that held the separate but equal doctrine of the 1897 case Plessy v. Ferguson
unconstitutional.
Prettyman was invited by the film's director to help make the dialogue between
the Supreme Court justices in the film the same as the dialogue during deliberations
in Brown.
''That was a lot of fun,'' Prettyman said. ''I told George the things that were
sort of out of whack and he pled that he had to make it interesting. It's not
way out of whack, but there are some things.''
Jackson wrote a draft opinion for the Brown case that included much of the logic
included in the final opinion by Chief Justice Earl Warren. Pollock wrote much
of the opinion for the Chief Justice. While Jackson and the rest of the justices
eventually agreed to join in a unanimous decision, Prettyman said unanimity
did not come easily.
Stanley Reed agreed with Warren's opinion only after Jackson agreed to leave
his opinion and join the majority. Prettyman said there were several reasons
for Jackson to begin writing his concurring decision.
''I think he also knew there would be a lot less chance of their being concurring
or dissenting opinions,'' Prettyman said. ''Early on, it appeared that virtually
everyone was going to write. He was putting down what he was going to write.
He was also trying to, I think, to see if he could make sense of going along.''
Prettyman said that Jackson agreed that it was time for the separate but equal
doctrine to end, but could find little basis in the law for the court to follow.
He was also concerned about sending cases back to the various U.S. District
Courts with little direction for the lower courts to follow.
While Prettyman was given the task of researching school districts when the
Brown case was reargued in 1954 and 1955, he said Jackson foresaw many of the
difficulties the court was faced with when it tried to enforce the original
Brown decision.
''I think he foresaw a lot of what I found,'' Prettyman said. ''That was that
it was a far more complex, fragmented situation than the people on the Court
had assumed. ... You know that in the various drafts of his concurring opinion
he was very upset with what they actually ended up doing, which was to turn
it back to the district courts without much guidance.''