Democratic Justice, page 126
424
“rich” and “If there is”: Id. at 642. See RHJP, Box 127, Folders 10–11.
424
refused & anxious & drawer: Silber, With All Deliberate Speed, 111–12.
424
June 2 and 3: DFF, 6/2/1943 & 6/3/1943, at 250.
424
“the expression”: FF to RHJ, 6/4/1943, FFLC, Box 69.
424
stayed home: FF to FM, 6/10/1943, at 1, FMP, Reel 127, at 143.
424
9:00 p.m. & food: Silber, With All Deliberate Speed, 112–13 (recalling they stopped at 3:00 a.m.).
424
2:00 a.m.: DFF, 6/10/1943, at 253.
424
“huge” & “rearranged”: Silber, With All Deliberate Speed, 114–15 (claiming FF “immediately” circulated it the next day to his colleagues after reading it only once).
424
reading and editing: DFF, 6/11/1943, at 253.
424
next morning: Handwritten note on RHJ Draft Opinion, 6/11/1943, at 1, RHJP, Box 127, Folder 10 (noting FF dissent circulated on morning of June 12).
424
“One”: Barnette, 319 U.S. at 646–47 (Frankfurter, J., dissenting).
425
“disinterestedness” & “Phil”: Silber, With All Deliberate Speed, 113–14.
425
“as a” & “ought” & “duty” & “a Jew” & “to go” & “not mentioning” & “to keep”: DFF, 6/13/1943, at 253–54.
425
“as” & “for” & “too” & “for months” & “what I”: DFF, 6/14/1943, at 254. See FF to FM, 6/14/1943, at 1–6, Gressman Papers, Box 1, Folder 68 (thanking FM for suggestion to delete opening sentence and explaining why he included it).
425
Burlingham: CCB to Powell, 9/13/1943, Powell Papers, Box A, Folder A26.
425–426
“reasonable” & “good” & “judicial” & “comparable” & “free” & “ ‘it must’ ” & “responsibility”: Barnette, 319 U.S. at 647–49 (Frankfurter, J., dissenting) (quoting Missouri, Kan. & Tenn. Rwy. Co. v. May, 194 U.S. 267, 270 (1904)).
426
had a choice & Cardozo’s: Barnette, 319 U.S. at 656–58 (Frankfurter, J., dissenting) (citing Pierce v. Society of Sisters, 268 U.S. 510 (1925) & Hamilton v. Regents, 293 U.S. 245, 266, 268 (1934) (Cardozo, J., concurring).
426
five prior: Id. at 664 (citing Leoles v. Landers, 302 U.S. 656 (1937) (per curiam) & Hering v. State Board of Education, 303 U.S. 624 (1938) (per curiam) & Gabrielli v. Knickerbocker, 306 U.S. 621 (1939) (per curiam) for lack of federal question & Johnson v. Deerfield, 306 U.S. 621 (1939) (per curiam) for summary opinion & Minersville v. Gobitis, 310 U.S. 586 (1940), which was reviewed only because a lower court injunction contradicted those rulings).
426
“outstanding” & “to mention”: Id. at 664–65.
426
“writhe” & “be changed” & “no such” & “without”: DFF, 6/14/1943, at 255.
426
private docket books: In Leoles v. Landers in December 1937 and Hering v. Board of Education in March 1938, HFS and LDB voted to postpone a decision on federal jurisdiction for an argument on the merits. LDB 1937 Term Docket Book, Leoles v. Landers, at 428 (HFS & LDB voting to postpone to merits); OJR 1937 Term Docket Book, Leoles v. Landers, at 382 (same); Butler 1937 Term Docket Book, Leoles v. Landers, at 409 (same); HFS 1937 Term Docket Book, Leoles v. Landers, at 380 (same); Butler 1937 Term Docket Book, Hering v. Board of Education, at 555 (HFS & LDB voting to dismiss); OJR 1937 Term Docket Book, Hering v. Board of Education, at 511 (same); HFS 1937 Term Docket Book, Hering v. Board of Education, at 513 (same). Cardozo voted with majority in Leoles and was absent in Hering.
In Gabrielli v. Knickerbocker in April 1939, the Court unanimously voted to dismiss for lack of a federal constitutional question. Butler 1938 Term Docket Book, Gabrielli v. Knickerbocker, at 544; Roberts 1938 Term Docket Book, Gabrielli v. Knickerbocker, at 489; HFS 1938 Term Docket Book, Gabrielli v. Knickerbocker, at 521. And in Johnson v. Deerfield in May 1939, the Court unanimously voted to deny on merits because of the three prior cases. Butler 1938 Term Docket Book, Johnson v. Deerfield, at 545; OJR 1938 Term Docket Book, Johnson v. Deerfield, at 490; HFS 1938 Term Docket Book, Johnson v. Deerfield, at 522. HFS joined both decisions, which is why FF accused his colleague of hypocrisy in Gobitis and Barnette.
Both HFS and HLB initially voted to “pass” in Gobitis—supporting HLB’s claim that he suppressed his negative vote in that case but not in any of the prior ones. HFS 1939 Term Docket Book, Minersville v. Gobitis, at 521.
426–427
“pressures” & “take” & “[t]hat which”: Barnette, 319 U.S. at 665 (Frankfurter, J., dissenting).
427
“admonition” & “judicial” & “We are” & “to dwarf” & “Of course” & “a great”: Id. at 667, 669–671 (Frankfurter, J., dissenting) (quoting James Bradley Thayer, John Marshall, 104–10 (1901)).
427
“perfect”: Reed to FF, n.d., FFHLS, Pt. I, Reel 7, Page 809.
427
“point[ing] strongly”: TNR, 7/5/1943, at 18.
427
apologized: Powell to FF, 7/8/1943, FFHLS, Pt. III, Reel 10, Page 711; FF to Powell, 7/9/1943, id. at 710; Powell to FF, 7/17/1943, id. at 711. But see Powell to PAF, 7/26/1944, at 1, Powell Papers, Box B, Folder B25 (insisting FF “behaved rather badly” in response to his criticism).
427
“I can’t”: Powell to CCB, 9/2/1943, at 1–2, Powell Papers, Box A, Folder A26.
428
“one”: FF to CEH, 6/15/1943, FFHLS, Pt. I, Paige Box 10, Reel 7, Pages 807.
428
“as cogently” & “knocked” & “authority” & “to provide” & “appreciation” & “unless”: CEH to FF, 6/17/1943, at 1–2, id. at 810–11.
428
late afternoon visit: FDR Day by Day, 6/27/1943.
428
“They ought”: R&FF, 699–700.
428
“there seemed”: Lash, “A Brahmin of the Law,” DFF, 70 (citing Joseph Lash, Eleanor Roosevelt, 159 (1964)); FDR Day by Day, 8/6/1940 (Hyde Park overnight visit). It wasn’t the day Gobitis was decided because ER was not at that tea. FDR Day by Day, 6/3/1940.
428
“ ‘stupid, unnecessary’ ”: R&FF, 701.
428
Max Stephan: Stephan v. United States, 133 F.2d. 87 (6th Cir. 1943), cert. denied, 318 U.S. 781 (April 5, 1943); 49 F. Supp. 897 (E.D. Mich. May 6, 1943), denied by 319 U.S. 423 (June 1, 1943) (per curiam).
428
voted not to hear: DFF, 5/24/1943, at 244–45.
428–429
“profoundly wise” & “evil”: FF to FDR, 7/1/1943, R&FF, 703. DFP, 7/3/1943, at 6.
CHAPTER 26: RACE, REDEMPTION, AND ROOSEVELT
430
for years: Nixon v. Herndon, 273 U.S. 536 (1927); Nixon v. Condon, 286 U.S. 73 (1932); Grovey v. Townsend, 295 U.S. 45, 52–53 (1935) (managers of primary election not state officers).
431
“This is”: PC, 11/20/1943, at 20.
431
special counsel: Mark V. Tushnet, Making Civil Rights Law, 99–108 (1994).
431
Hastie had resigned: ChiDef, 2/6/1943, at 1; WHH OH, Truman Library, at 16–23; Gilbert Ware, William Hastie, 124–41 (1984).
431
first Supreme Court: ChiDef, 11/20/1943, at 2.
431
refused & insisted: United States v. Classic, 313 U.S. 299, 315–21, 329 (1941); David M. Bixby, “The Roosevelt Court, Democratic Ideology, and Minority Rights: Another Look at United States v. Classic,” 90 Yale L.J. 741, 792–812 (1981); FB, In Brief Authority, 159–60, 187–88 (1962).
431–432
“The Fourteenth” & “There are”: FF to HFS, 5/21/1941, HFSP, Box 66 (second note handwritten).
432
“destroys” & “redden[ed]”: BAA, 11/20/1943, at 9.
432
November 13: WBR 1943 Term Docket Book, Smith v. Allwright, No. 51, at 348; OJR 1943 Term Docket Book, Smith v. Allwright, No. 51, at 377 (noting he had “Passed” on November 13); WOD Conference Notes, 11/13/1943, WODP, Box 94, Folder 7.
432
granted: Motion of Texas Attorney General, Smith v. Allwright Clerk’s Office File & Gerald Mann to Clerk’s Office, 11/24/1943 tel. & Clerk to Mann, 12/13/1943, NARA, RG 267, Appellate Case Files 51–52 O.T. 1943, Box 3412; WOD 1943 Term Docket Book, Smith v. Allwright, WODP, Box 93, Folder 12 (granting Texas motion on Dec. 6) & SFR 1943 Term Docket Book, Smith v. Allwright, at 349, SFRP (same).
432
“could whip”: ChiDef, 1/22/1944, at 1.
432
“Texas” & “they must”: PhillyTrib, 1/22/1944, at 14. See Ware, William Hastie, 177–83.
432
“without”: FF, “Memorandum on Smith v. Allwright,” 4/10/1944, at 3, FFHLS, Pt. I, Reel 10, Page 165.
433
“irrelevant”: “Supreme Court Memoranda, 1943–1944,” FFHLS, Pt. I, Reel 10, Page 1055. Cf. FM Conference Notes, Smith v. Allwright, at 3, FMP, Reel 129, October Term 1943, at 63 (only notes of 1/15 conference, misinterpreting FF’s view).
433
“You are” & “accusations” & “Of course”: FF, “Memorandum on Smith v. Allwright,” 4/10/1944, at 1–2.
433
“the Court’s decision”: RHJ to HFS, 1/17/1944, at 1, HFSP, Box 75.
433
“we were” & “did not” & “political”: FF, “Memorandum on Smith v. Allwright,” 4/10/1944, at 2–3.
433
“personal”: Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 673 (1944) (Black, J., opinion) (joined by Murphy, J.).
434
“what is”: Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 619 (1944) (Black & Murphy, JJ., opinion).
434
“tendency”: Mahnich v. Southern S. S. Co., 321 U.S. 96, 113 & n.9 (1944) (Roberts, J., dissenting) (joined by Frankfurter, J.).
434
“a wholly”: Brown v. Gerdes, 321 U.S. 178, 191 (1944) (Frankfurter, J., concurring).
434
“Frankfurter Views”: LAT, 1/5/1944, a 1. See Gressman Diary, 1/5/1944 & 1/15/1944 (FM concerned not with newspaper coverage but with discord on Court).
434
“Frankfurter Adds”: NYT, 2/8/1944, at 1. See WP, 1/8/1944, at 8; WP, 2/12/1944, at 6.
434
“An Unstable”: NYT, 2/4/1944, at 14.
434
“his third”: STLST, 3/1/1944, at 14, FFHLS, Pt. III, Reel 11, Page 119.
434
“the Frankfurter” & “the Black”: PE to Lerner, 2/9/1944, FFHLS, Pt. III, Reel 11, Page 138 (quoting PM, 2/9/1944).
434
rebutting: PE to PM editor, 2/29/1944, id., Page 140 (see PM, 3/5/1944, at 10).
434
challenging: DA to Elliston, 2/16/1944, at 1–3, id., Pages 146–48.
434
“The Justice’s”: IB to JA, 2/11/1944, IB, Letters 1928–1946, at 485 (Henry Hardy, ed. 2004).
434
“written”: LH to FF, 2/6/1944, FFHLS, Pt. I, Reel 11, Page 256.
435
“member” & “growing”: NYHT, 1/10/1944, at 16.
435
“the history”: FF to CCB, 1/11/1944, at 1, FFLC, Box 35.
435
“the importance”: CCB to FF, 1/13/1944, at 1, id.
435
“I have” & “They are”: CCB to FF, 2/4/1944, at 1–2, id.
435
“as old” & “it is”: FF to CCB, 2/8/1944, at 1, 4, id. See Lilienthal Diary, 2/13/1944, David E. Lilienthal, The Journals of David E. Lilienthal: The TVA Years, 1939–1945, at 624–25 (1964) (FF “very sensitive” about criticism).
435
“Is there”: BVC to CCB, 1/28/1944, CCBP, Box 2, Folder 2-19.
435
multiplicity: BVC to FF, 1/19/1944, FFHLS, Pt. III, Reel 11, Pages 127–28.
435
“addressed”: FF to BVC, 1/20/1944, id., Page 126. See FF to JFB, 3/17/1944, JFBP, Ser. 5, Box 5, Folders 5–6 [Folder 145] (suggesting BVC for vacancy on federal court of appeals in D.C.); JFB to FF, 3/24/1944, id. (agreeing).
436
“fundamentally”: Phillips to FF, 8/19/1957, at 1, in FFR, 8/28/1957, FFLC, Box 206 (quoting FF). See Gressman Diary, 10/17/1943 & 10/23/1943 (recounting FM’s displeasure with how HFS ran conference compared to CEH); PE to FF, 4/3/1944, FFHLS, Pt. III, Reel 11, Page 77 (HFS “owed it to his many admirers to explain why ‘after long reflection’ he realized that he voted the wrong way in Grovey v. Townsend”).
436
“I did not” & “delicacy” & “a soldier”: FF, “Memorandum on Smith v. Allwright,” 4/10/1944, at 3.
436
“at length” & “the importance”: Id.
436
“now”: FM Conference Notes, Smith v. Allwright, at 3.
436
March 10: SFR Draft Majority Opinion, 3/10/1944, SFRP, Box 80, Folders 1 & 2 (handwritten note: circulated only to HFS and FF).
436
“had begged”: FF, “Memorandum on Smith v. Allwright,” 4/10/1944, at 3–4.
436–437
“You are” & “a square” & “disingenuousness” & “our inescapable” & “a deviation” & “For myself”: FF to SFR, 3/15/1944, at 1–3, FFHLS, Pt. III, Reel 40, at Pages 216–18 & SFRP, Box 80, Folder 2.
437
“would not” & “the only”: FF, “Memorandum on Smith v. Allwright,” 4/10/1944, at 3–4.
437
“appeasement”: FF to HFS, 3/17/1944, HFSP, Box 74.
437
“We are” & “as a dynamic” & “a different” & “the great” & “if in fact”: FF Unpublished Concurrence in Smith v. Allwright, 4/10/1944, at 1–2, FFHLS, Pt. I, Reel 10, Pages 169–70.
438
“Something”: FF to HFS, 3/17/1944, HFSP, Box 74.
438
joined: HFS to SFR, 3/16/1944, HFSP, Box 76.
438
“before” & “something”: HFS to FF, 3/18/1944, FFHLS, Pt. I, Reel 11, Pages 461–62.
438
“We should”: FF to HFS, 3/18/1944, HFSP, Box 74.
438
Mahnich: HFS to FF, 3/18/1944, FFHLS, Pt. I, Reel 11, Pages 461–62.
438
“[t]he evil”: Mahnich v. Southern S.S. Co., 321 U.S. 96, 112 (1944) (Roberts, J., dissenting). See Gressman Diary, 2/2/44 (recounting publicity about OJR’s Mahnich dissent).
438
“I wrote”: FF to SFR, circa 3/17/1944, SFRP, Box 80, Folders 1 & 2.
438
“I congratulate”: FF to SFR, 3/28/1944, id.
438
“had a difficult” & “seriously”: Harlan B. Phillips, “Notes on Conversations with Mr. Justice Jackson,” 12/1–4/1952, at 1, in FFR, 8/28/1957, FFLC, Box 206. Cf. FF to Phillips, 8/8/1957, at 1–2, id. (denying any friction between him and RHJ). FF had forgotten that he had written the Smith v. Allwright concurrence until reminded of it by Phillips, a Columbia University oral historian, in August 1957. Id. at 2–3. Phillips had initially seen the unpublished concurrence on May 1, 1953, when RHJ showed it to him. Phillips to FF, 8/19/1957, at 1–2, id. Phillips preserved the concurrence and understood its historical significance. He also contributed important corroborating memoranda and generated correspondence about the case with FF as part of the rough draft of FF’s Reminisces in his Library of Congress Papers. FFR Transcript, 8/28/1957, FFLC, Box 206. The concurrence has been overlooked by scholars.
438
“furious”: Phillips, “The Texas White Primary Case,” at 3, in FFR, 8/28/1957, FFLC, Box 206 (based on notes of 12/1–4/1952 conversations with RHJ).
438
“I think” & “could not swallow”: FF, “Memorandum on Smith v. Allwright,” 4/10/1944, at 4.
439
“circulated”: FF Unpublished Concurrence in Smith v. Allwright, at 1, 4/10/1944 in FFR, 8/28/1957, FFLC, Box 206 (FF handwritten note).
439
“Mr. Justice Frankfurter”: Smith v. Allwright, 321 U.S. 649, 666 (1944) (Frankfurter, J., concurring in result).
439
“my Brethren act”: FF, “Memorandum on Smith v. Allwright,” 4/10/1944, at 4.
439
“separate”: Plessy v. Ferguson, 163 U.S. 537 (1896); Gong Lum v. Rice, 275 U.S. 78 (1927).
439
Margold: Press Release, “Margold to Direct National Legal Campaign for Negro Rights,” 11/9/1930, NAACP Papers, Pt. 3, Series A, Reel 1, Page 503; Margold Report, circa 1930, id., Reel 44, Page 560.
439
Donald Murray: Pearson v. Murray, 182 A.590 (Md. 1936).
439
Lloyd Gaines: Missouri ex rel Gaines v. Canada, 305 U.S. 337 (1938).
440
railroad cars: Mitchell v. United States, 313 U.S. 80 (1941).
440
“the greatest”: “The Reminisces of Thurgood Marshall” (Columbia Oral History Research Office, 1977), in Thurgood Marshall: His Speeches, Writings, Arguments, Opinions and Reminisces, 512 (Mark V. Tushnet, ed. 2001). See Charles L. Zelden, The Battle for the Black Ballot (2004); Darlene Clark Hine, Black Victory (1979); Michael J. Klarman, “The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking,” 29 Fla. St. U. L. Rev. 55 (2001).
