Court Clerks Express Viewpoints On Brown II
From left, E. Barret Prettyman, Daniel Meador, Earl Pollock and Gordon Davidson share a laugh with professor John Barrett before a discussion of Brown v. Board of Education II at the Chautauqua Institution on Wednesday. |
By JOHN WHITTAKER
CHAUTAUQUA — Gordon Davidson knew he had witnessed something special.
Standing on the steps outside the Supreme Court building nearly 50 years ago, he was convinced Brown v. Board of Education II would be celebrated as one of the court’s greatest decisions.
E. Barrett Prettyman saw the decision as the best way out of a difficult predicament. For Earl Pollock, Brown v. Board II accomplishes a narrow goal.
To Alabama native and Hugo Black clerk Daniel Meador, the decision allowed southern states to breathe a sigh of relief.
Much like critics of the Brown v. Board II decision and its mandate to end segregation in schools with ‘‘all deliberate speed,’’ four of the law clerks whose Supreme Court justices signed onto the unanimous opinion have different opinions of its legacy.
The men reminisced about the decision — and the year leading up to it — during a discussion Wednesday in the Elizabeth A. Lenna Hall at Chautauqua Institution as part of the Robert H. Jackson Center’s 50th anniversary commemoration of the case.
Prettyman and Pollock were clerks during the tight-lipped year leading up to the landmark reversal of Plessy v. Ferguson in Brown v. Board of Education I in 1954.
With the Supreme Court already deciding separate accommodations in schools are inherently inequal, Brown v. Board II decided how the justices would deal with how desegregation would proceed.
‘‘In my mind, the first two items were decided in the 1953- 54 term, leaving only what instructions to give the lower courts,’’ said Pollock, who clerked for Chief Justice Earl Warren. ‘‘As far as I was concerned, and I may be understating, there was not any chance whatsoever that the court would ever issue a forthwith decree. I don’t think it was ever seriously considered.’’
The families who had sued in the five cases making up Brown v. Board wanted the Supreme Court to declare segregation should end immediately.
Their attorney, Thurgood Marshall, argued eloquently for immediate relief, but it was an argument destined to fall on deaf ears. Reed earlier asked clerk John Fassett to research the history of segregation before reargument of Brown v. Board I.
That research became the assignment for the Committee of Six, six clerks convened prior to arguments in Brown II charged with researching ways to implement the decision. Prettyman and Davidson were committee members, though some areas the group researched were left out of the decision entirely.
‘‘It’s easy to find fault with what the court did,’’ said Prettyman, who clerked first for Robert H. Jackson and then for his replacement, John Marshall Harlan. ‘‘It’s much harder to prescribe action. ... Here, too, I think the court could have done more, but it’s difficult to say exactly what that should have been.’’
There was little doubt, after the unanimous decision in Brown I, that Brown II would also receive unanimity among the justices. The phrase that is now ridiculed by many scholars, ‘‘all deliberate speed,’’ was actually the phrase that helped bring all the justices together, according to Davidson — though Prettyman defends the language that came before the now-infamous phrase as strong enough to signal the direction the court wanted to take.
‘‘All deliberate speed has become a bad word in many circles,’’ said Davidson, who clerked for Stanley Reed. ‘‘Regardless of the reasoning, what the court was doing, I thought, was commendable. I left the court after that term thinking, ‘Boy, I’m glad I was a part of this.’ Now, people can say, ‘The court should have done this or should have done that.’ ... It has not worked the way I had hoped it would. I felt, and I think the court felt, there would be more support.’’
All four clerks agree the court would have created more problems than it solved with an immediate or structured decree in Brown II. Pollock said perhaps the federal government should have passed the Voting Rights Act of 1964 before the court heard a school desegregation case. For Prettyman, a regimented decree wouldn’t have worked because of the different laws and tax structures involved.
Davidson, remembering the thoughts in his head from the day the decision was released, said the Brown cases are a landmark because they let government actively protect civil rights. Meador — whose justice never mentioned the Brown cases in his chambers — said it is the only way the court could have decided the issue.
‘‘In retrospect, it’s hard to imagine the court doing anything other than what it did,’’ Meador said