Democratic Justice, page 135
569
Only Burton: FF to Max Lerner, 5/17/1952, at 2, Lerner Papers, Box 3, Folder 135 (holding HHB “in higher esteem on the score of judicial character” than any other justice); FF to LH, circa 6/15/1953, at 1, LHP, Box 105C, Folder 105-19 (agreeing about HHB’s “stainless integrity”).
569
last justice: Rosenberg v. United States, 346 U.S. 273, 277 n.* (1953) (opinion dated July 16).
569
“pseudonymous”: FF to PE, 7/18/1953, at 2. Telephone Int. with FMV clerk James C. N. Paul, 11/25/2008 (“He didn’t write any of his opinions. He didn’t write anything” [referring to FMV’s opinions and speeches]).
569
“in high” & “I’m in” & “Phil”: Silber, With All Deliberate Speed, 219.
569
“an act”: AMB Int. with Lash, 9/10/1974, at 4. See John David Fassett et al., “Supreme Court Clerks’ Recollections of Brown v. Board of Education,” 78 St. John’s L. Rev. 515, 531 (2004) (FF clerk Frank E.A. Sander recalling that the justice’s line about believing in God occurred in chambers); Jerome Cohen Int. with Parrish, 7/2/1974, at 4 & Cohen Int. with Laura McCreery, 11/19/2004, at 11 (repeating his belief that FMV’s death was “the only evidence I ever had of the existence of a divine being”).
CHAPTER 33: THE WISE USE OF TIME
570
In January: Briggs v. Elliott, 342 U.S. 350 (1952) (per curiam). See Briggs v. Elliott, 98 F. Supp. 529 (E.D.S.C. June 23, 1951) (initial order to equalize schools but denying desegregation), 103 F. Supp. 920 (E.D.S.C. March 13, 1952) (detailing procedural history in South Carolina).
570
“wholly”: Briggs, 342 U.S. at 352 (Black and Douglas, JJ., dissenting).
570
“You think”: Newton Minow Int. with author, 1951 term law clerk to FMV, 9/20/2006.
570
“embarrassed” & “grow up” & “In retrospect”: Abner Mikva tel. int. with author, 1951 term clerk to SM, 9/24/2006. See CT, 4/23/1978, at H58.
570
In June 1952: FF 1951 Term Docket Book, Briggs v. Elliott No. 273, FFHLS, Pt. I, Reel 60, Page 423 (issuing per curiam remitting to district court); FF 1951 Term Docket Book, Briggs No. 816, id. at 971 (noting appeal June 3); FF 1951 Term Docket Book, Brown v. Board of Education, No. 436, id., at Page 587 & WOD 1951 Term Docket entry, Brown v. Board of Education, No. 436, WODP, Box 1150 (noting HLB and WOD’s desire to grant case); WOD 1952 Term Docket entry, Brown v. Board of Education, No. 8, id.
571
“Only” & “kept” & “The outcome” & “deny[ing]” & “not a fixed” & “evolution” & “Law must”: FF, Memorandum, 9/26/1952, at 1–2, EWP, Box 571, Folder 3 (FF handwritten note: “written during the summer of 1952 and revised in September 26, 1952 by F.F.”).
572
“a real”: AMB Int. with Margie Scarf, 10/28/1974, at 9, AMBP, Box 13, Folder 8, quoted in Laura Kalman, Yale Law School and the Sixties, 52 (2005).
572
passed over: HMH to FF, 4/13/1950, at 2, FFHLS, Pt. III, Reel 16, Page 598 (passing over AMB because of Weaver Dunnan’s friendship with Hugh Calkins and Gus Hand’s lobbying for Dunnan).
572
Chayes & Trautman: AMB to FF, 4/16/1952, at 1–2, id., Reel 31, Page 745–46; FF to AMB, 4/23/1952, at 1–2, id. at Page 747–48; Donald T. Trautman, “A Personal Word,” 88 Harv. L. Rev. 695, 695 (1974).
572
Irish poetry & middle names: Abram Chayes, “Alexander M. Bickel, A Personal Remembrance,” 88 Harv. L. Rev. 693, 693 (1974).
572
“I am”: HMH to FF, 4/12/1952, at 1, FFHLS, Pt. III, Reel 16, Page 608.
573
cart: AMB Int. with Kluger, 8/20/1971, at 2, BvBP, Box 1, Folder 4.
573
“I am currently”: AMB to FF, 8/8/1952, FFHLS, Pt. II, Reel 4, Page 330.
573
raving: FF to PE, 8/12/1952, at 2, PEP, Box 2, Folder 2-48.
573
critical role: FF to James H. Chadbourn, 11/24/1953, at 1–2, FFHLS, Pt. III, Reel 15, Pages 775–76; PE Int. with Kluger, 8/19/1971, at 1–2, 4, BvBP, Box 2, Folder 27; Norman I. Silber, With All Deliberate Speed, 199–201 (2004).
573
“FF was talking”: Silber, With All Deliberate Speed, 203. See PE Int. with Kluger, 8/19/1971, at 2.
574
“orderly”: Brief for the United States as Amicus Curiae, Brown v. Board of Education at 27 (12/3/1952).
574
“the Frankfurter Way”: PE Int. with Kluger, 8/19/1971, at 4. See Richard Kluger, Simple Justice, 558–61 (1976).
574
“Phil”: PE Int. with Kluger, 8/19/1971, at 4. See Silber, With All Deliberate Speed, 205.
574
judicial ethics: NYT, 3/24/1987, at A30; Randall Kennedy, “A Reply to Philip Elman,” 100 Harv. L. Rev. 1938, 1944 (1987).
574
unrepentant: NYT, 4/1/1987, at A30; PE to Kennedy, 7/16/1990, PEP, Box 2, Folder 2-53; PE to PAF, 12/15/1952, id. (worrying about outcome of cases); PE to FF, 7/15/1953, at 1, FFLC, Box 53 (worrying about his “role” on brief in 1953).
574
“the one thing”: Silber, With All Deliberate Speed, 202 & PE Int. by Silber, “The Solicitor General’s Office, Justice Frankfurter, and Civil Rights Litigation, 1946–1960: An Oral History,” 100 Harv. L. Rev. 817, 827 (1987). See PE Int. with Kluger, 8/19/1971, at 4; Kluger, Simple Justice, 558.
574
300 people & in line: NYHT, 12/10/1952, at 24; BAA, 12/20/1952, at 7; NYT, 12/10/1952, at 1.
574
“very sensitive” & “long-established” & “should be faced” & “should be overruled”: Oral Argument, Brown v. Board of Education, 12/9/1952, in Landmark Briefs and Arguments of the Supreme Court of the United States, Vol. 49, at 289–90 (Philip B. Kurland & Gerhard Casper, eds. 1975).
574
“intended”: Id. at 294.
574
“the social”: Id. at 301. See Paul E. Wilson, A Time to Lose (1995).
575
Elman did not think: PE Int. with Kluger, 8/19/1971, at 4, 6; Kluger, Simple Justice, 560.
575
“distinctions”: Oral Argument, Briggs v. Elliott, 12/9/1952, in Landmark Briefs and Arguments, Vol. 49, at 315.
575
natural law & “unreasonable” & “I follow”: Id. at 316, 318.
575
“more complicated” & “I agree”: Id. at 319.
575
“only thing” & “I think”: Id. at 320–21.
575
“John W. Davis!”: Marshall Int. with Harbaugh, 10/26/1966, at 8, BvBP, Box 4, Folder 65.
575
A southerner: Kluger, Simple Justice, 525–29; William Henry Harbaugh, Lawyer’s Lawyer (1973).
576
“common” & “in the condition”: Oral Argument, Briggs v. Elliott, 12/9/1952, in Landmark Briefs and Arguments, Vol. 49, at 331.
576
“conditions” & “a living” & “commerce” & “equal”: Id. at 332–33.
576
“if conditions”: Id. at 334.
576
black and white dolls: Id. at 335–36.
576
“Negroes” & “under”: Id. at 339.
577
“the solution”: Id. at 342.
577
“to avoid” & “a problem” & “the rights”: Id. at 345–46.
577
power to enforce: Oral Argument, Davis v. County School Board, 12/10/1952, in Landmark Briefs and Arguments, Vol. 49, at 377–79, 386–87.
577
interracial marriage & “legislation”: Oral Argument, Bolling v. Sharpe, 12/10/1952, id. at 406.
577
no vote: HHB Conference Notes, Brown v. Board of Education, 12/13/1952, at 7, HHBP, Box 251, Folder 10 & TCC Conference Notes, Brown v. Board of Education, 12/13/1952, at 5, TCCP, Box A27, Folder 4. Regarding the Court’s conference discussions, I tend to start with HHB’s notes because they are the most detailed, reliable, and unbiased. WOD’s notes, in particular, tend to cast FF and RHJ in a negative light. After the 1952 term argument, WOD also divided his notes among the different state and D.C. cases instead of writing one set of notes as the other justices did. Even though I start with HHB’s notes, I corroborate them with other justices’ notes.
577
“courage” & “wisdom”: HHB Conference Notes, Brown v. Board of Education, 12/13/1952, at 1–2 (guessing he might affirm). See TCC Conference Notes, Brown v. Board of Education, 12/13/1952, at 1; WOD Conference Notes, Bolling v. Sharpe, 12/13/1952, at 1, WODP, Box 1150; RHJ Conference Notes, Brown v. Board of Education, 12/12/1952, at 1, RHJP, Box 184, Folder 5.
577–578
“same” & “per se” & racial violence & front lines: HHB Conference Notes, Brown v. Board of Education, 12/13/1952, at 2–3. See WOD Conference Notes, Bolling v. Sharpe, 12/13/1952, at 1; TCC Conference Notes, Brown v. Board of Education, 12/13/1952, at 2–3; RHJ Conference Notes, Brown v. Board of Education, 12/13/1952, at 1–2; FF Conference Notes, Brown v. Board of Education, 12/13/1952, at 1, FFHLS, Pt. I, Reel 74, Page 771.
578
“different” & rights of states: HHB Conference Notes, Brown v. Board of Education, 12/13/1952, at 3–4. See WOD Conference Notes, Brown v. Board of Education, 12/13/1952, at 2–3; TCC Conference Notes, Brown v. Board of Education, 12/13/1952, at 3–4; RHJ Conference Notes, Brown v. Board of Education, 12/13/1952, at 2.
578
reargument & “most important” & District of Columbia’s & “intolerable” & “physical things” & “what justifies”: HHB Conference Notes, Brown v. Board of Education, 12/13/1952, at 4–6.
578
Coleman: WOD Conference Notes, Bolling v. Sharpe, 12/13/1952, at 2.
578
purpose of the Fourteenth Amendment: WOD Conference Notes, Brown v. Board of Education, 12/13/1952, at 3–4 & TCC Conference Notes, Brown v. Board of Education, 12/13/1952, at 4–5 & RHJ Conference Notes, Brown v. Board of Education, 12/13/1952, at 2.
579
“very simple”: TCC Conference Notes, Brown v. Board of Education, 12/13/1952, at 5.
579
cannot classify: RHJ Conference Notes, Brown v. Board of Education, 12/13/1952, at 2. See HHB Conference Notes, Brown v. Board of Education, 12/13/1952, at 6; FF Conference Notes, Brown v. Board of Education, 12/13/1952, at 1.
579
words & “sociology” & “legal” & “would have” & “conscious” & library & “be a party”: HHB Conference Notes, Brown v. Board of Education, 12/13/1952, at 7–8. See RHJ to Charles Fairman, 3/13/1950, at 1–3, RHJP, Box 12, Folder 10 (describing his “doubts” about how to resolve issue of segregation in education and questions about legislative history of Fourteenth Amendment); RHJ to Fairman, 4/5/1950, id.; RHJ to Fairman, 3/13/1950 handwritten draft, id.; RHJ handwritten talking points, n.d., id., Box 184, Folder 5 (discussing segregation in education).
579
“bad” & Congress: TCC Conference Notes, Brown v. Board of Education, 12/13/1952, at 5–6. See WOD Conference Notes, Brown v. Board of Education, 12/13/1952, at 4; WOD Conference Notes, Bolling v. Sharpe, 12/13/1952, at 2.
579
“crossed” & black nurses & “time to comply”: WOD Conference Notes, Brown v. Board of Education, 12/13/1952, at 5–6. See TCC Conference Notes, Brown v. Board of Education, 12/13/1952, at 6; RHJ Conference Notes, Brown v. Board of Education, 12/13/1952, at 3.
579
same result & Mexican American children: HHB Conference Notes, Brown v. Board of Education, 12/13/1952, at 8.
579
“led”: WOD Conference Notes, Brown v. Board of Education, 12/13/1952, at 5–6 & RHJ Conference Notes, Brown v. Board of Education, 12/13/1952, at 3.
579
“whittled” & “invidious”: WOD Conference Notes, Brown v. Board of Education, 12/13/1952, at 7.
579
“not reasonable” & “segregation”: HHB Conference Notes, Brown v. Board of Education, 12/13/1952, at 8–9. See TCC Notes, Brown v. Board of Education, 12/13/1952, at 6; RHJ Conference Notes, Brown v. Board of Education, 12/13/1952, at 3.
580
delayed: FF Docket Entry, Terry v. Adams, FFHLS, Pt. I, Reel 72, Page 355.
580
black voters & wrote separately: Terry v. Adams, 345 U.S. 461, 470 & 475–76 (1953) (Frankfurter, J.). See FF to HHB, 3/17/1953, FFHLS, Pt. I, Reel 70, Page 888 & FF to TCC, 3/17/1953, id. at 889 (proposing decree); FF to HHB, 3/18/1953, id. at 890 (wanting to join a judgment in favor of black voters depending on decree).
580
Jackson voted: RHJ Docket Entry, Terry v. Adams, RHJP, Box 179, Folder 9; Rehnquist certiorari memo, Terry v. Adams, id.; Rehnquist, “Re: Opinions of Black and FF in Terry v. Adams,” id.; Jackson Terry v. Adams, dissent, 4/3/1953, id.
580
Thompson’s Restaurant: District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953).
581
“Why”: AMB Int. w Kluger, 8/20/1971, at 1. See Kluger, Simple Justice, 595; FF Docket Entry, District of Columbia v. John R. Thompson Co., FFHLS, Pt. I, Reel 72, Page 920 (noting SFR voted to affirm); Joan Quigley, Just Another Southern Town (2016); Wendell E. Prichett, “A National Issue: Segregation in the District of Columbia and the Civil Rights Movement at Mid-Century,” 93 Geo. L.J. 1321, 1331–32 (2005).
581
Bickel drafted: AMB Int. with Kluger, 8/20/1971, at 3.
581
“disclose” & “in opposite”: FF, Memorandum to Conference Re: The Segregation Cases, 5/27/1953, at 1, FFHLS, Pt. II, Reel 4, Pages 242.
581
The first three: Id. at 1–3
582
Byrnes: NYHT, 12/7/1952, at 47.
582
“[F]or me”: FF, “Memorandum to Conference Re: The Segregation Cases, 5/27/1953, at 1–3.
582
Vinson liked: FF, Conference Notes re: Questions, n.d., at 1–2, FFHLS, Pt. II, Reel 3, Pages 954–55.
582
Black and Douglas: Id.; HLB to FF, 6/5/1953, id., Reel 4, Page 226. See TCC to FF, 6/5/1953, id. at 230; FF to TCC, 6/4/1953, id. at Page 210.
582
“It can’t”: FF Docket 1952 Term, Davis v. County School Board, FFHLS, Pt. I, Reel 72, Page 494 (FF handwritten).
582
reminded Vinson: FF to FMV, 6/8/1953, at 1–2, id., Pt. II, Reel 4, Pages 237–38.
582
“enjoyed”: AMB to FF, 8/22/1953, at 1, FFHLS, Pt. II, Reel 4, Page 211.
582–583
“nowhere” & “In any event” & “all this”: Id. at 1–2.
583
“I think”: Id. at 3.
583
Without consulting: FF to HLB, 8/5/1953, at 1–2, HLBP, Box 60.
584
The Vinson Court: Carlton F. W. Larson, “What if Fred Vinson Had Not Died of Heart Attack in 1953?” 45 Indiana L. Rev. 131 (2011) (arguing that FMV would have voted with the majority in Brown based on his past opinions on race and the federal government’s support for plaintiffs); HHBD, 5/8/1954, Reel 4 (suggesting the vote would have been 6–3 under FMV with the chief justice among the three dissenters).
584
Krock: NYT, 9/18/1953, at 22.
584
Childs: WP, 9/29/1953, at 10.
584
“a ‘political’ ”: DDE to Swede Hazlett, 10/23/1954, at 2, Hazlett Papers, DDEL, Box 2.
584
swear in: NYT, 10/6/1953, at 1; Jim Newton, Justice for All, 254–56 (2006); Bernard Schwartz, Super Chief (1983).
584
“equivalent”: Silber, With All Deliberate Speed, 209. See id. at 208–12; PE Int. with Kluger, 8/19/1971, at 4–5; Supplemental Brief for the United States in Reargument, Brown v. Board of Education, 11/27/1953.
585
“the unreliability” & “one” & “devote[d]” & “every” & “a fair” & “the legislative” & “the 39th”: FF, Memorandum for the Conference, 12/3/1953, FFHLS, Pt. II, Reel 4, Page 58. The leading history was Horace E. Flack, The Adoption of the Fourteenth Amendment (1908).
585
legislative history: Briggs v. Elliott Oral Argument, 12/7/1953, in Landmark Briefs and Arguments, Vol. 49A, at 458–63.
585
1871 Civil Rights Act: Id. at 469.
585
Necessary and Proper: Id. at 488–89.
586
“The argument”: Id. at 521.
586
“to find” & “as near” & “as is”: Id. at 522–23.
586
“informally”: HHB Brown v. Board Conference Notes, 12/12/1953, at 1–2, HHBP, Box 251, Folder 10 & WOD Brown v. Board Conference Notes, 12/12/1953, WODP, Box 1150.
586
“separate” & “proves” & “were intended”: WOD Brown v. Board Conference Notes, 12/12/1953, at 1. See FF Brown v. Board Conference Notes, 12/12/1953, at 1, FFHLS, Reel 4, Page 451 & EW Handwritten notes, n.d., EWP, Box 571, Folder 3.
