Democratic Justice, page 131
506
“shot”: Eben Ayres Diary, 3/25/1948, at 55, Ayres Papers, HSTL & in Truman at the White House, 250–51 (Robert H. Ferrell, ed. 1991).
506
“see”: FF to CW, 4/6/1948, tel., CWP, 5-2823.
506
“We want”: FF to CW, 4/14/1948, id., 27-2824 (enclosing WP cartoon, 4/14/1948).
506
“it seems”: FF to CW, 4/14/1948, id., 15-2825A.
506
“Keep”: FF to CW, 4/19/1948, id.
506
five or six: MLD, 5/11/1948, at 8–9, MLP, Box 8, Folder 62; ML to Clifford, 5/11/1948 & other memos, id., Folder 63.
506
Truman listened: MLD, 5/12/1948 8:30 p.m.; Ayres Dairy, 5/12/1948, in Truman in the White House, at 257.
506–507
next day & not scared & agreed: MLD, 5/13/1948 11:00 a.m., at 1; MLD, 6/1/1948, at 2; Clifford, Counsel to the President, 3–25; Clifford, “Factors Influencing President Truman’s Decision to Support Partition and Recognize the State of Israel,” 38–42 in The Palestine Question in American History (Clark M. Clifford et al., eds. 1978). Cf. Lowenthal OH, at 76–78 (claiming he did not have much to do with Palestine).
507
letter from Weizmann: CW to HST, 5/13/1948, The Letters and Papers of Chaim Weizmann, Vol. 23, at 116 (1980).
507
made up his mind: Ayres Diary, 5/14/1948, at 100, Ayres Papers.
507
nor oppose: Forrestal Diary, 5/14/1948, The Forrestal Diaries, at 440.
507
“Dave”: Sachar, “David K. Niles and the United States Policy Toward Palestine,” 1 & n.1 (based on May 1948 conversation between Abram I. Sachar in May 1948 and confirmed by HST to Abram Sachar, 3/10/1959).
507
“jubilant”: MLD, 5/14/1948, at 1.
507
“It’s been” & “There have”: FF to DKN, 5/17/1948, at 1–3, DKNP, Box 32.
507
pleaded & arranged: MLD, 5/19/1948 7:45 p.m., at 1–2.
507
navy & Waldorf: MLD, 5/22/1948 9:15 p.m. at 1–3; MLD, 5/24/1948, at 2.
507
State Department opposed: Ayres Diary, 5/24/1948, Truman in the White House, at 258.
508
“ ‘My’ ”: FF to CW, 5/16/1948, at 1, CWP, 3-2831.
508
Blair House & quiet: FF to CW, 5/29/1948, id., 10-2839; MLD, 5/25/1948 11:20 a.m., at 2–3.
508
“I always”: NYT, 5/26/1948, at 4. CW, Trial and Error, 480–81.
508
hands: WP, 5/25/1948, at 1, 2.
508
“At last”: FF to CW, 5/29/1948.
508
editorial: MLD, 6/4/1948 10:40 a.m.
508
General Hilldring: MLD, 6/9/1948, at 3.
508
McDonald: Forrestal Diary, 6/23/1948, The Forrestal Diaries, at 440–41.
508
Czechoslovakia: MLD, 6/2/1948 11:45 a.m. at 4.
508
praised: FF to CW, 2/15/1949, CWP, 20-2886.
508
“It has”: FF to DKN, 5/15/1949, at 1–2, DKN, Box 32. See CW to DKN, 2/20/1949, DKN-Brandeis U, Box 8a (crediting DKN).
509
seventy-fifth: FF to CW, 11/20/1949, CWP, 12-2906A.
509
“tower”: HST to DKN, 5/17/1951, HSTP, PSF, Box 248, Folder 15.
509
stomach cancer: Blumgart to FF, 10/11/1952, FFHLS, Pt. III, Reel 39, Page 371.
509
“the underprivileged” & dream: HST Official Statement, 9/28/1952, HSTP, PSF, Box 632, #2238.
509
retirement: JA to IB, 1/17/1947, at 2, IBP, Box 239, #29; JA to IB, circa 1947, at 2, id. #41.
509
health problems: MDF to Blumgart, 8/22/1948, FFHLS, Pt. III, Reel 39, Page 238–42; FF to Blumgart, 8/24/1948, id., Page 343–44 (MDF’s neurological problems and visits to Boston doctors).
CHAPTER 30: I DON’T CARE WHAT COLOR A MAN HAS
510–511
“color” & “The upshot” & “power” & “an explosive” & “the umpire” & “to keep” & “there was” & “might” & “of course” & “I asked” & “noble” & “this is” & “the very”: DFF, 12/20/1947, at 334–36. See Ross E. Davies, “A Christmas Gift for the Supreme Court,” 17 Green Bag 2d 311–54 (2014).
511
December 16: PAF to FF, 12/16/1947, at 1–3, FFHLS, Pt. III, Reel 9, Pages 9–11.
511
finished first: WTC enrolled at Harvard Law School in 1941, served in the military, then graduated magna cum laude in November 1946. Harvard Law Record, 6/11/1947, at 1. During the confusion about who was in what graduating class after the war, he was not awarded the Fay Diploma for finishing first in his class. PAF to Judge Herbert Goodrich, 1/31/1947, FFHLS, Pt. III, Reel 9, Page 6 (WTC as first in class of 75 with 76 average). Six decades later, the law school corrected the oversight. Harvard Law Today, 2/25/2009, https://today.law.harvard.edu/william-coleman-46-honored-in-the-u-s-senate/.
511
broken protocol: WTC to FF, 1/15/1948, FFHLS, Pt. III, Reel 9, Page 14; FF to WTC, 1/22/1948, id. at Page 15; PAF to FF, 1/28/1948, at 1–3, id. at Pages 19–21.
511
dean: FF to CCB, 5/8/1946, at 2–3, CCBP, Box 5, Folder 5-6.
511
Beale Prize & “From”: PAF to Goodrich, 1/31/1947.
512
“would welcome”: PAF to FF, 12/16/1947, at 1.
512
“power” & “I don’t”: FF to PAF, 12/18/1947, FFHLS, Pt. III, Reel 9, Page 13. In 1946, WTC also had written directly to HLB, but the justice had already filled his clerkship. WTC to HLB, 6/20/1946, HLBP, Box 442, Folder 2; HLB to WTC, 6/24/1946, id.
512
didn’t know & tried to help: HMH to WTC, 1/22/1948, FFHLS, Pt. III, Reel 9, Page 17; PAF to FF, 12/16/1947, at 2–3.
512
Boston firms: WTC, Counsel for the Situation, 73–74 (2010).
512
Hand & Magruder & Garrison: PAF to FF, 1/28/1948, at 1–2.
512
“willing”: HMH to WTC, 1/22/1948.
512
accepted: HMH to FF, 1/23/1948, id. at Page 18; FF to HMH, 2/11/1948, id. at Page 22 (FF handwritten: February 27 notified); WTC, Counsel for the Situation, 76–77 (recalling phone call from HMH but confusion about whether FF had hired him).
512
“For”: WP, 4/27/1948, at 1.
512
letters: FFHLS, Pt. III, Reel 9, Pages 23–44.
513
not deserving: FF to Rep. John McCormack, 4/30/1948, id. at Page 29.
513
“Tom” & “Mr. Justice”: PAF, “Felix Frankfurter: Reminisces & Reflections,” 11/19/1982, at 12–13.
513
Jackie Robinson: WTC, Counsel for the Situation, 78–94; Todd C. Peppers, “William Thaddeus Coleman, Jr.,” Journal of Supreme Court History 33, no. 3 (2008): 353–70 (making Robinson analogy).
513
“third degree”: Lee v. Mississippi, 332 U.S. 742 (1948).
513
“Murphy made”: DFF, 12/30/1947, at 337.
513–514
“mild” & “should deal” & “third”: FF to FM, 1/3/1948, FFHLS, Pt. III, Reel 2, Page 652.
514
Brandeis opinion: Wan v. United States, 266 U.S. 1 (1924).
514
“This satisfies”: FF’s note joining FM’s opinion, FMP, Roll 138, Lee file, Page 39. See FF handwritten comments on FM’s recirculated draft, id. Pages 35–38. Lee was re-tried and sentenced to 20 years in prison; his conviction was affirmed on appeal. Lee v. State, 39 So.2d 868 (Miss. 1949), cert. denied, 338 U.S. 803 (1949).
514
Sarah Elizabeth Ray: Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28, 30–31 (1948).
514
At conference: HHB, Bob-Lo Conference Notes, at 1, HHBP, Box 154, Folder 9; WOD, Bob-Lo Conference Notes, at 1, WODP, Box 161 Folder 4.
514
“the very”: WBR, Bob-Lo Conference Notes, WBRP, Box 157, Folder 2.
515
“led me” & “Forgive”: FF to WBR, 1/2/1948, WBRP, Box 157, Folder 2.
515
“little sermon” & offensive language: WBR to FF, 1/2/1948, at 1–2, id. (referring to Fisher v. United States, 328 U.S. 463, 477 (1946) (Frankfurter, J., dissenting)). David M. Siegel, “Felix Frankfurter, Charles Hamilton Houston and the ‘N-Word,’ ” 7 S. Cal. Interdisc. L.J. 317 (1998).
515
“My point is” & “this Court should”: FF to WBR, 1/2/1948, WBRP, Box 157, Folder 2.
515
“Felix”: WBR to secretary Edna Lingreen, 1/5/1948, id. See WBR to FF, 1/2/1948, id. (typewritten copy of handwritten agreement to changes).
515
“impose”: Bob-Lo Excursion Co. v. Michigan, 333 U.S. at 40.
515
Ada Lois Sipuel: Sipuel v. Board of Regents, 332 U.S. 631, 632 (1948) (per curiam); Ada Lois Sipuel Fisher, with Danney Goble, A Matter of Black and White (1996).
515
Lloyd Gaines: Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); James W. Endersby & William T. Horner, Lloyd Gaines and the Fight to End Segregation (2016); Chad Garrison, “The Mystery of Lloyd Gaines,” Riverfront Times, 4/4/2007.
515
four possible options & “not in sympathy”: HHB Sipuel Conference Notes, at 1, HHBP, Box 154, Folder 8. See WBR Sipuel Conference Notes, WBRP, Box 164, Folder 5.
516
“legal education” & “in conformity”: Sipuel, 332 U.S. at 632–33.
516
“should avoid”: FF, Memorandum, 2/13/1948, at 1, Fisher v. Hurst, No. 325 Misc., FFHLS, Pt. III, Reel 12, Page 880.
516
Oklahoma courts: Fisher v. Hurst, 333 U.S. 147 (1948) (per curiam).
516
to hear & could not be equal: Id. at 151 (Rutledge, J., dissenting). In June 1949, Ada Sipuel-Fisher was admitted to the University of Oklahoma Law School. CT, 6/19/1949, at 8.
516
restrictive housing covenants: WOD Shelley Conference Notes, WODP, Box 161, Folder 8; HHB Shelley Conference Notes, HHBP, Box 154, Folder 7; Shelley v. Kraemer, 334 U.S. 1 (1948); Jeffrey D. Gonda, Unjust Deeds (2015).
517
“not for any”: Hurd v. Hodge, 334 U.S. 24, 36 (1948) (Frankfurter, J., concurring).
517
charmed: Powell to FF, 1/22/1947, Richardson Papers, Box I:50 (FF handwritten comments).
518
first choice: Paul Bender Int. with author, 2/15/2017.
518
“exclusionary rule”: Wolf v. Colorado, 338 U.S. 25 (1949).
518
Richardson’s research: Wolf v. Colorado file, FFHLS, Pt. I, Reel 36, Pages 897–988 & Reel 37, Pages 1–79; FF to Richardson, 10/1/1952, Richardson Papers, Box I:50; WTC, Counsel for the Situation, 82.
518
limiting the scope: Wolf docket book, FFHLS, Pt. I., Reel 37, Page 107; HHB Wolf Conference Notes, at 1–4, HHBP, Box 167, Folder 8; WOD Wolf Conference Notes, at 1–2, WODP, Box 177, Folder 1; WBR Wolf Conference Notes, 10/23/1948, at 1–2, WBRP, Box 173, Folder 1.
518
chambers & Coleman’s parents & red toy car: WTC, Counsel for the Situation, 80, 82.
518–519
Shakespeare & badminton & godfather: Id. at 81, 87; WTC Int. with author, 10/16/2006.
519
Mayflower Hotel: WTC, Counsel for the Situation, 93; WTC Int. with author, 10/16/2006.
519
“noticed”: WTC Int. with Robert H. Jackson Center, 5/18/2005, https://www.youtube.com/watch?v=8K8cM3pYPp8.
519–520
factual matter & “No one” & “the advantages” & “the exchange” & “the only” & “must be”: WTC, “Memorandum for Mr. Justice Frankfurter on Sweatt v. Texas, No. 44, October Term, 1949, and McLaurin v. Oklahoma State Regents for Higher Education, No. 34, October Term, 1949,” 8/5/1949, at 16–20, FFLC, Box 218. Al Sacks Int. with Michael Parrish, 7/15/1974, at 4 (discussing WTC’s memorandum at FF’s request at end of term).
520
“rights”: WTC, “Memorandum,” at 21–22 (quoting Hurd v. Hodge, 334 U.S. 24, 36 (1948) (Frankfurter, J., concurring)).
520
“When” & “classifications” & “segregation does” & “in the South” & “Segregation is”: Id. at 22–24 (quoting 1 Vand. L. Rev. 403 (1948)). WTC clamed in his memoir that his June 1949 memorandum was about a South Carolina school segregation case brought by Thurgood Marshall, and that he and Richardson had urged Frankfurter to reject South Carolina Governor JFB’s plea to remand the case for more factual finding. WTC, Counsel for the Situation, 83–84. There are a few problems with WTC’s recollections. A South Carolina case about the lack of funding for a school bus for black children, Pearson v. Clarendon County Board of Education, was dismissed by the district court in March 1948 because of a lack of standing. This case was not appealed. Richard Kluger, Simple Justice, 15–18 (1976). Nor does it appear anywhere in FF’s Supreme Court docket book and conference list during the 1948 term. The next South Carolina school segregation case, Briggs v. Elliott, did not begin until November 1949 after WTC’s clerkship. JFB, moreover, did not become governor of South Carolina until January 16, 1951. WTC, therefore, must have been referring to his memo at the end of the 1948 term about Sweatt and McLaurin.
521
“imponderable” & “Restriction”: FF Notes, n.d., at 1–2, FFHLS, Pt. I, Reel 40, Pages 1–2.
521
Segregation in Washington: Id. at Pages 12–62, Box 34, Folder 3 (Segregation in Washington: A Report of The National Committee on Segregation in the Nation’s Capital (1948)).
521
life in the nation’s capital: Constance McLaughlin Green, Secret City (1967); Brad Snyder, Beyond the Shadow of the Senators, 2–3 (2003).
521
“This is so”: Goesaert v. Cleary, 335 U.S. 464, 465–66 (1948). See Dictated First Draft, 12/1/1948, FFHLS, Pt. I, Reel 32, Page 316.
521
Twenty-First Amendment: HLB to FF, 12/2/1948, id. at Page 328; FF to Richardson, n.d., id. at Page 356.
521
“By your”: Dr. Alice E. Palmer to FF, 12/23/1948, id. at Page 365.
521
“Your enmity”: Alma Booker to FF, id. at Page 366.
522
all-male Bartenders Union: DFP, 12/29/1948, in id. at Page 313.
522
all-male Court: HHB Goesaert Conference Notes, HHBP, Box 167, Folder 14; WOD Goesaert Conference Notes, WODP, Box 177, Folder 2.
522
“it is hard” & “We have”: TCC Sweatt Notes, at 1–2, TCCP, Box A2.
522
framers & “This is no”: Id. at 2.
522
“should not”: HHB Sweatt Notes, at 4, HHBP, Box 182, Folder 1.
522
Holmes’s speech & strength: WOD Sweatt Notes, at 2, WODP, Box 192, Folder 2.
522
“To have”: TCC Sweatt Notes, at 2, TCCP, Box A2.
522
condemned: Cassell v. Texas, 339 U.S. 282, 290–91 (1950) (Frankfurter, J., concurring in the judgment).
522–523
“symbolic” & “A totally”: FF, Memorandum for the Conference, 5/31/1950, at 2, FFHLS, Pt. I, Reel 39, Page 755.
523
take on segregation: FF to HHB, 5/26/1950, at 1–2, FFHLS, Pt. III, Reel 1, Pages 243–44 (asking him not to use Henderson to outlaw racial segregation).
523
“intangible” Sweatt v. Painter, 339 U.S. 629, 632–35 (1950). See Michael Klarman, From Jim Crow to Civil Rights, 206–12 (2004); William M. Wiecek, The History of the Supreme Court of the United States, Volume XII: The Birth of the Modern Constitution: The United States Supreme Court, 1941–53, at 681–93 (2006).
523
“the most rewarding” & Taney: WTC, Counsel for the Situation, 85–86, 91–92.
523
“absolute”: WTC, “Mr. Justice Felix Frankfurter,” 1978 U. Ill. L. F. 279, 296.
523
“without” & “judicial” & “I have” & “too many” & “a joy” & “What I”: WTC, Counsel for the Situation, 91–92 (quoting letters from FF to WTC).
CHAPTER 31: THE FRANKFURTER CULT ON TRIAL
525
“wanted” & “In fact” & “Since”: Katherine Watters, “Conversation between a man who called and identified himself as Westbrook Pegler and Katherine Watters, about 12:15 p.m., December 17, 1948—this summary was made shortly after the conversation took place,” WBRP, Box 177, Folder 5. AH had testified before HUAC on the previous day. It was almost certainly Pegler. He admitted he had tried to call WOD on the night of the Gridiron dinner six days earlier. In fact, Pegler had been introduced to FF that night at the Statler Hotel. Cincinnati Enquirer, 12/17/1948, at 8; Cumberland (Md.) Evening Times, 12/17/1948, at 4 (confirming Pegler’s account).
