(article is
from the news section of the Jamestown Post-Journal)
5/2/2004 - By JOHN WHITTAKER
Clerks Provide Glimpse Of Justices' Thoughts In Brown V. Board Case.
It was nearly 50 years ago that former Supreme Court clerk Earl Pollock sat
down with a pen and notepad to give substance to the landmark U.S. Supreme Court
decision in Brown v. Board of Education.
The unanimous decision that Pollock spent that fateful May weekend writing longhand
would bring an end to legalized segregation in public schools and usher in the
civil rights movement of the 1960s.
During a two-day celebration of the decision's 50th birthday held Wednesday
and Thursday by the Robert H. Jackson Center, Pollock and three of his fellow
Supreme Court clerks gathered in the Carl Cappa Theater at the Jackson Center
to discuss their role in the case.
Wednesday's discussion marked the first time in 50 years that the four clerks
- each of whom went on to distinguished legal careers of their own - had been
in the same room with each other.
But, it was much more than simply an opportunity to hear four men talk about
their experience with a landmark event.
Listening to Pollock, John David Fassett, Frank E.A. Sander and E. Barrett Prettyman
also provided a glimpse into the thoughts of four Supreme Court justices who
played a key role in the unanimous decision - even if they weren't supposed
to.
''We're getting a bit of a false picture of the normal law clerks,'' Sander
said. ''What these three gentlemen have been sharing as law clerks are exceptions.
The general rule of the Supreme Court was that law clerks would have no role
in this decision because even then the fear of leakage was so serious. So, there
were some violations of that, including my own.''
While much is made of the arguments made by future Supreme Court justice Thurgood
Marshall in the Brown case, the clerks are unanimous in their belief that while
passionate, Marshall's arguments didn't win the case while John W. Davis' argument
on behalf of the states didn't lose the case.
Instead, the unanimous decision in Brown v. Board of Education was accomplished
largely by the justices and those close to them - their clerks.
What follows is the clerks' recollection of the Brown case during the battle
for unanimity and their effort to make sure the historical record surrounding
the landmark decision is correct for future generations.
The Chief Justices
In May 1954, Pollock found himself sitting at his desk putting the finishing
touches on Chief Justice Earl Warren's draft of the Brown opinion. It was a
much different position than he found himself in under his first Supreme Court
justice, former Chief Justice Fred Vinson.
After Vinson's death, Warren was appointed during a congressional recess as
a man who Pollock said ''exuded integrity'' and was able to put people at ease
quickly. He was nominated by both the Republican and Democratic parties in his
last election for governor of California.
While Pollock didn't discuss the Brown case with Vinson, there was a buzz around
the Supreme Court offices about the case.
''Among the clerks who were already there there was tremendous excitement,''
Pollock said. ''There was a lot of discussion about it. There were other cases,
but it constituted the most important issue before the court.''
All three clerks said it is unlikely that a unanimous decision could have happened
without Warren, with Pollock saying that a 5-4 or 6-3 decision was likely. Instead
of holding a vote immediately after oral arguments ended - as is customary -
to allow the justices more time to think the case through and allowing Warren
more time to formulate the perfect opinion.
Warren was unable to achieve unanimity until late April as Justices Jackson
and Reed agreed to join the rest of the court. With the end of the term looming,
Warren gave Pollock a two-page outline and told the clerk to expand on its thinking
though ''speed was of the essence.''
''With the hubris of youth, I started work on it the very next day and worked
about 24 straight hours,'' Pollock said. ''That brought me into the weekend.
This was mostly in longhand because I didn't have a typewriter at home. I brought
my longhand work into the office on Monday morning and I presented it to the
Chief Justice with a cover memo - which is on the Internet somewhere - saying
that I tried to follow your instructions.''
Pollock turned in his work the following Monday with Warren making several style
changes, though nothing noteworthy. Footnotes were added and, on May 7, Warren
circulated the opinion to the rest of the justices along with a cover memo explaining
the concept of the opinion.
With unanimity assured on May 15, Warren made the fateful decision to release
the Brown opinion the following Monday. Few other clerks were in the room -
though Prettyman, Pollock, Fassett and Sander were inside the chambers to see
the decision rendered because their justices told them it would be good to attend
decision day.
''The security was remarkable in that I don't think there was any public leak,''
Pollock said. ''It was kept under wraps.''
An Influential Operator
Sander, the clerk for Felix Frankfurter, told a story about the day that former
Chief Justice Fred Vinson died. After hearing the news, Frankfurter uttered
his infamous sentence, ''Finally, proof that there is a God.'' While some legal
scholars use the utterance as proof that Frankfurter disliked Vinson, Vinson's
clerk agreed with Sander's recollection about Frankfurter's feelings for his
former boss.
''Rather, it was Frankfurter's belief that there was finally a chief justice
capable of wielding the different factions together, something that unfortunately
Vinson had not been able to do,'' Pollock said. ''It was very much of a fractured
court under Vinson. Frankfurter saw the Warren appointment as a chance to overcome
that.''
Vinson's death provided an opportunity for the court to hear a second round
of oral arguments to get more information. Frankfurter asked one of his clerks
to compile a list of five questions to that needed to be answered again while
also inviting President Eisenhower's administration to file a brief taking a
position on the issue.
''Frankfurter was largely responsible for the reargument,'' Sander said. ''It
was not (clerk Alexander) Bickell, it was Frankfurter commissioning Bickell
to get the Supreme Court to have this filibuster. His main concerns were the
whole issue of judicial restraint. Putting things off because it was a difficult
decision, getting more research, was very much Frankfurter's doing.''
While Frankfurter's work behind the scenes is well documented, Frankfurter actually
had concerns with the way discussions were going and had thoughts of joining
with a concurring opinion.
''I now know that he had some written thoughts to some kind of a concurring
opinion,'' Sander said. ''There were some discussions between him and Jackson
with writing some sort of joint opinion. We had nothing to do with that. I think
the first formal involvement we had was much later when an opinion had been
drawn up by the Chief Justice that was taken around.''
In the end, any thought of a concurrence was laid to rest with the opinion fashioned
by Warren - with a little help from Earl Pollock. Sander said his justice was
pleased with the end result.
''My recollection is that he was very pleased,'' Sander said. ''He thought it
should be unanimous. I think he had come around to that. He had some serious
concerns about the role of the judiciary and judicial restraint. He had concerns,
but he saw this movement toward unanimity.'"
The Dissenter?
Stanley Reed of Kentucky was the most senior associate justice at the time of
Brown, having started in government service during the Herbert Hoover administration
and continuing as solicitor general during Franklin Delano Roosevelt's administration.
According to Fassett, Reed was torn when trying to reason through the Brown
case, not because he was racist - as has been written by some legal scholars
- but because he believed that African-Americans were making progress and a
decision such as Brown could set back that progress. Such a decision was not
the role of a court in Reed's thinking, but for the legislative branch.
He also thought that the issue was settled with the Fourteenth Amendment to
the Constitution, a post-Civil War amendment guaranteeing equal protection under
the law. Reed didn't want to invoke the due process clause - which was later
removed from the opinion during Pollock's weekend writing.
For those reasons, Reed was the final justice to cross to the majority while
even working on a dissenting opinion. Fassett said that while several justices
were working on concurring opinions, Reed was the only Justice to seriously
consider a dissent.
''I had many conversations with him about it and we argued,'' Fassett said.
''You've got to look at this from the point of view of the role of our country
in the world. He said, 'Boy, have I been hearing a lot about that.' ''
Much like Jackson - who did no further work on his concurring opinion after
reading Warren's opinion - Reed was also happy with Warren's opinion. Much has
been written in legal circles that Reed didn't decide to join the opinion until
just before the Brown opinion was made public on May 17 and that it was only
after last-minute pleading from Warren and other justices that Reed agreed not
to dissent. Fassett said those writings are completely false.
''He told the Chief Justice that he was going along when there was a clear understanding,''
Fassett said. ''Of course, that was all based on the opinion. Justice Reed had
done nothing further on the dissent after he saw it. He might not have said
so, but he implied that he did so to the other justices that he would go along
with the opinion if it was acceptable.''
While Reed knew how he was voting, it was obvious that many in the audience
on May 17 did not. One famous story that is true, according to Fassett, involves
Thurgood Marshall on the day the decision was handed down.
''He came there and sat there and watched Justice Reed,'' Fassett said. ''It
was rumored that Justice Reed was going to dissent. He wanted to look him in
the eye as it came down.''
The Practical Man
Robert H. Jackson was one of the final justices to join the court's unanimous
opinion, though Prettyman said those who have written that Jackson seemed opposed
to overturning Plessy v. Ferguson at first before a change of heart are wrong.
''I disagree with that,'' Prettyman said. ''I don't think that's what happened.
I think at that first conference when everyone was discussing their opinion
and a number of justices -including Douglas - wrote down that Jackson seemed
to be cool, actually Jackson being very, very, very practical person recognized
that school segregation was being struck down and he was willing to go along
with that.''
Jackson's problem, according to Prettyman, was how the court planned to deal
with the flood of cases that was sure to be tried in lower courts as well as
possible criticism of district courts and school systems in the Brown opinion.
That is why, Prettyman said, Jackson began writing his concurring opinion. While
Jackson agreed with the majority that it was time for separate but equal to
be set aside, he also felt that blacks had made much progress and that any ground
for the Plessy ruling was therefore gone. It was an issue that Jackson and Reed
agreed on, though Jackson drafted a concurring opinion while Reed prepared to
dissent.
While Jackson didn't discuss how other justices were leaning in the case, Prettyman
received a copy of Jackson's concurrence and was very critical of Jackson's
thinking. Soon after the criticism, Jackson suffered a heart attack that left
him at Walter Reed Memorial Hospital.
Prettyman was at the hospital when Warren brought the draft opinion for Jackson
to read. The clerk was asked to leave the room with a nurse telling Prettyman
when he could return. Sander asked Prettyman whether the heart attack changed
Jackson's mind about joining the majority, but Prettyman replied that it was
the way Warren's opinion was written that brought the area man over in line
with the other justices - even though Jackson suggested a few changes to the
Chief Justice's work.
''We talked about it and it was very obvious, and this is the best way I can
put it, is that he was relieved, very relieved, that something had been presented
that he could go along with,'' Prettyman said.