Democratic Justice, page 73
Frankfurter’s chambers was arranged differently than those of other justices. Frankfurter, the two law clerks, and the secretary all worked together in the center office. The other justices usually occupied the office at the end of the chambers, which had a fireplace and a bathroom. The bullpen-like atmosphere produced constant collaboration on opinions and easy banter about history, literature, and current events. The office environment was informal and carefree. The justice was interested in his clerks’ personal and professional lives. When Coleman’s parents visited Frankfurter’s chambers, the justice discussed history and world affairs with Coleman’s mother. When Coleman’s three-year-old son Billy visited, the justice got on the floor and played with Billy’s red toy car.
The friendship between Coleman and Richardson was free of any jealousy or hostility. They worked six days a week and looked forward to Saturday afternoons when the justice discussed what had happened at conference. Before the justice arrived each day, the two clerks read Shakespeare or Romantic poets for an hour. They often played badminton together on the roof of the Court. Upon the birth of Coleman’s second child, Lovida Jr., in May 1949, Richardson was named her godfather. As he did in law school, the tall, handsome, bespectacled Richardson had the back of the short, portly Coleman. And Coleman knew it.
Coleman’s status as the first black Supreme Court clerk did not shield him from the realities of life in racially segregated Washington. During a holiday in which the Supreme Court cafeteria was closed, the clerks decided to have lunch at the Mayflower Hotel. As the noon hour approached, Richardson claimed to have too much work and asked Coleman to eat with him at Union Station. Richardson confessed he had called ahead to the Mayflower and had discovered that the hotel did not serve blacks in its dining room. Union Station was one of the few places in the city where blacks and whites could eat lunch together. The whole incident left Frankfurter shaken. After lunch, Coleman saw him talking with Richardson and “noticed the justice had tears in his eyes.”
As helpful as Richardson’s appendix in Wolf v. Colorado may have been, Coleman made a more enduring contribution to Frankfurter and the Court’s work. At Frankfurter’s request, Coleman spent the last few months of his clerkship writing a memorandum about the graduate school segregation cases making their way to the Court. In 1946, Heman Marion Sweatt, a black Houston former schoolteacher, had been denied admission to the University of Texas Law School because of his race. Instead, the state began a law school for black students. By the time the Court had agreed to hear Sweatt’s case, twenty-three black students had enrolled in the segregated law school; Sweatt, however, demanded admission to the University of Texas. Another black student, George W. McLaurin, had been admitted to the University of Oklahoma’s doctoral program in education but was forced to sit apart from white students in an anteroom during class, was assigned a special table in the library, and was not permitted to eat with his classmates. In his 24-page memorandum, Coleman focused on the factual and procedural issues with Sweatt’s case. As a factual matter, the two schools were not equal: the black law school had twenty-three students in one leased floor of a building; the University of Texas had 850 in a building designed to be a law school; the black school had 16,000 books in its law library; the University of Texas had 65,000; the black school was unaccredited; the University of Texas was accredited. “No one would seriously controvert,” Coleman wrote, “that nothing short of equality of facilities would satisfy the Equal Protection Clause of the Fourteenth Amendment.” Coleman also observed that intangible factors including “the advantages of an established alumni, a law review, and other forms of training,” were “an important part of a legal education” and prevented the two schools from being equal. In that vein, he quoted Holmes’s Harvard Law School address about education and highlighted the importance in graduate and professional school of “the exchange of ideas and participation with a large number of students and professors expert in the field.” As a result, Coleman urged the Court to hold that “the only way States can satisfy the requirement of the Fourteenth Amendment is that the petitioner be admitted to the long-established and existing university maintained for all other citizens.” Moreover, to prevent the University of Oklahoma’s racial isolation of George McLaurin, the facilities “must be tendered on a non-discriminatory, non-segregated basis to all that are otherwise qualified.”
In a note to Frankfurter, Coleman worried that his bold approach clashed with the justice’s cautious instincts, yet the two cases called for decisive action. If the Court permitted the University of Oklahoma’s racial segregation of McLaurin, it would be forced to reaffirm the “separate but equal” doctrine of Plessy v. Ferguson. And if the Court was prepared to hold that racially separate graduate and professional schools could not be equal, it should act quickly in Sweatt’s case because Texas had appropriated money to build a new building for black law students. The Court’s decision in Sipuel, Coleman noted, had already persuaded four southern states to begin admitting black graduate students. If the Court refused to address the issue in the Texas case, he argued, that momentum would be lost. Coleman quoted Frankfurter’s concurrence in Hurd v. Hodge that the graduate school cases implicated “rights so basic to our society that, after the Civil War, their protection against invasion by the States was safeguarded by the Constitution.”
Coleman concluded by urging Frankfurter and his fellow justices to confront the looming issue in the graduate school cases: “When faced with the question whether segregation is constitutional, the Court will have to overrule Plessy v. Ferguson . . .” He argued that the Court would have to follow the restrictive covenant cases that “classifications based upon race are illegal.” He rejected Plessy’s assertion that “segregation does not bring about the inferiority of the race” as unsupported “by history or the study of psychologists and sociologists.” He quoted a Vanderbilt Law Review note declaring that “in the South the inferior position of the Negro has been recognized and accepted by both races alike.” And, referring to numerous decisions from southern states, he concluded: “Segregation is always a humiliating experience, but even clearer evidence that to designate, on the basis of race, is a sign of inferiority of a minority group is contained in the adjudications of almost every Southern State.”
Coleman’s memorandum about the graduate school cases was a powerful and prescient document. The next term, the Court heard oral argument in Sweatt and McLaurin. Frankfurter’s notes about Sweatt recited Coleman’s facts about the physical facilities, number of books, and accreditation. They also emphasized the “imponderable inequalities”—such as the inability of black schools with few students to attract high-quality professors and therefore engage in high-level discussion. “Restriction based on race,” Frankfurter wrote, “necessarily restricts opportunities to get instructions from [the] ablest teachers [the] state can demand.”
Another document in Frankfurter’s Sweatt and McLaurin file was a complete copy of a 1948 report, Segregation in Washington. Frankfurter understood—based on Coleman’s aborted attempt to eat at the Mayflower Hotel with the other clerks, the advocacy of former students Houston and Hastie, and many years of living in Washington—that life in the nation’s capital was racially segregated. Blacks could not eat in the same restaurants, stay in the same hotels, sit in the same sections of movie theaters, or try on clothes in most department stores.
During the late 1940s, Frankfurter was more sensitive to issues of race than gender. In Goesaert v. Cleary, Frankfurter dictated the first draft of his majority opinion upholding a Michigan law that forbade a woman from becoming a licensed bartender unless she was the wife or daughter of the owner. Frankfurter’s opinion rejected an equal protection challenge and upheld the law’s distinction between the wives and daughters of owners and non-owners of bars. Frankfurter asserted that the state could forbid all women from tending bar: “This is so despite the vast changes in the social and legal position of women. The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic.” Black joined the majority opinion after Frankfurter agreed to include cases and references to the Twenty-First Amendment, which repealed prohibition yet left the regulation of alcohol up to the states. Rutledge wrote a short dissent, which Douglas and Murphy joined. Several women wrote Frankfurter protesting the decision. “By your reasoning it would be utterly fair for the state to bar a negro or a Jew or a person of any race or even of any religion from holding certain jobs,” wrote Dr. Alice E. Palmer of Detroit. “Your enmity toward women counts more against you than your friendship toward Negroes counts in your favor,” wrote Alma Booker of Pittsburgh. As a dismissive Detroit Free Press columnist observed, the law had nothing to do with regulating alcohol but was the product of the all-male Bartenders Union capturing the Michigan legislature. Frankfurter’s opinion in Goesaert is indefensible on many levels: It was the product of an all-male Court, an all-male group of law clerks, and a male-dominated workforce. Nor would it be the last time that Frankfurter’s gender bias resulted in a serious error in professional judgment.
The Court considering Sweatt and McLaurin looked different after the death of its two most liberal members. In July 1949, Frank Murphy died in his sleep of a heart attack at age fifty-nine. On September 10, two weeks after suffering a stroke, Wiley Rutledge died at age fifty-five. Truman replaced Murphy with Attorney General Tom C. Clark and Rutledge with Senator Sherman Minton of Indiana. Together with his appointments of Burton and Vinson, Truman had remade the Court in a more pedestrian, moderate direction. It was also more southern with the Texan Clark, Kentuckians Vinson and Reed, and Alabaman Black.
At conference about Sweatt and McLaurin on April 8, 1950, Reed was the most vocal defender of segregation: “it is hard for me to say something that has been constitutional for years to be suddenly bad.” Reed also argued that the Fourteenth Amendment had not intended to abolish racial segregation and pleaded with his colleagues not to attack Plessy: “We have made great progress. It would be unfortunate at this time for us to say segregation [is] unconstitutional.”
Frankfurter responded that no one knew what the framers of the Fourteenth Amendment intended, but he must have allayed Reed’s fears of drastic change: “This is no Dred Scott case. Here is the slow growth of insight and understanding.” He argued that the Court “should not go beyond what is necessary” and therefore should base its decision only on the unreasonableness of segregation in graduate education. Echoing Coleman’s memorandum, he read from Holmes’s speech on education and argued that the strength of a law school was its student body and faculty. “To have two schools,” he argued, “is not equality. It can’t be made so.”
Frankfurter’s incremental approach to constitutional change carried over to two other cases that term about race. In Cassell v. Texas, he wrote a concurring opinion that condemned the exclusion of blacks from grand and petit juries but emphasized that the discrimination must be intentional as it was in that case. In an unpublished memorandum in a companion case to Sweatt and McLaurin, Henderson v. United States, he urged the Court to rule in favor of a black man discriminated against during interstate railroad travel on federal statutory grounds rather than emphasize the “symbolic” factors of racially separate railroad cars and take on segregation per se. He distinguished the intangible factors in the graduate school cases: “A totally different situation is presented by segregation in graduate schools. . . . Colored students who are restricted to segregated instruction cannot possibly have the same educational opportunities given in State institutions to white graduate students.”
Following Frankfurter’s incremental approach, the Court’s unanimous opinions in Sweatt and McLaurin emphasized the “intangible factors” of graduate school education including reputation, alumni networks, and job prospects that made Texas’s efforts to establish a separate black law school unequal. During the 1949 term, the Court stopped short of reconsidering Plessy’s “separate but equal” doctrine. But once it considered the intangible factors in evaluating inequality, the overruling of Plessy’s “separate but equal” doctrine was only a matter of time. Coleman’s memorandum had provided the blueprint.
Coleman described his clerkship with Frankfurter as “the most rewarding of my life thus far.” He enjoyed the back-and-forth with the justice about legal and historical issues. He stood up to Frankfurter for asserting that Roger Taney was a great justice despite Taney’s notorious opinion in Dred Scott v. Sandford declaring that blacks were not citizens entitled to constitutional protection. In later years, he defended Frankfurter’s liberal bona fides and argued that the justice’s commitment to racial equality was “absolute.”
The admiration between Frankfurter and Coleman was mutual. The justice quoted Coleman with pride that “without strict adherence to reason and refraining from permitting personal biases to enter adjudication, judges become covert little Hitlers.” He admired Coleman’s “judicial temperament” and hoped that he would seize any opportunity to become a federal judge: “I have never known anyone more equipped, better suited for judging than you.” He reminded Coleman that “too many so-called liberals . . . are seduced by what Justice Brandeis rightly called the ‘odious doctrine that the end justified the means.’ ” Frankfurter described it as “a joy to have worked with you for the year, and I shall watch you with great hopes.” A year later, he wrote Coleman: “What I can say of you with great confidence is what was Justice Holmes’s ultimate praise of a man: ‘I bet on him.’ I bet on you, whatever choice you may make and whatever the Fates may have in store for you.”
Coleman’s memorandum about Sweatt and McLaurin made a lasting impact on his boss. The justice placed several copies in his files and soon showed the memorandum to one of his most talented law clerks, Alexander M. Bickel. In the early 1950s while in private practice, Coleman joined Thurgood Marshall’s legal team at the NAACP attacking racially segregated public primary and secondary schools. It was up to Frankfurter and the Court to figure out how to overrule Plessy’s “separate but equal” doctrine and how to enforce the dismantling of state-sponsored racial segregation. The most powerful argument against racial segregation, whether in law schools or grade schools, was the story of Bill Coleman himself.
CHAPTER 31
The Frankfurter Cult on Trial
About 12:15 p.m. on Friday, December 17, 1948, the phone rang in Frankfurter’s chambers. The justice’s secretary, Katherine Watters, answered it. The man on the other end of the line asked if it was Frankfurter’s office. He identified himself as Westbrook Pegler, and the Red-baiting syndicated columnist was talking so fast and so unclearly that Watters could barely understand him. Pegler “wanted to know if the Justice would see him—he said that it was in regard to the Alger Hiss affair. He went on to tell me that Alger Hiss mentioned the Justice in his testimony, and he wanted to know if the Justice would have something to say about it and would I find out.” Watters explained that the justice did not give interviews; Pegler interrupted her and asked to make an exception and whether she knew that Alger Hiss had been indicted. “In fact,” Pegler told Watters, “it is even possible that the Justice might give testimony.” After Watters held firm and hung up the phone, she wrote a memorandum that Frankfurter circulated the next day to his colleagues along with a note: “Since Westbrook Pegler evidently intends to bring his poisonous pen into action against me in connection with the Alger Hiss affair, and since he will thereby inevitably involve the Court, I should like my colleagues to see the attached memorandum by way of background.”
By the late 1940s, Cold War hysteria about Communists infiltrating the federal government was in full swing. In 1945, Soviet spy Elizabeth Bentley had renounced the Communist Party and had provided the FBI with a list of alleged spies in the federal government. J. Edgar Hoover initiated a massive investigation and encouraged federal prosecutions; the House Un-American Activities Committee (HUAC) initiated hearings about Communist spies in government and in Hollywood. During his HUAC testimony on August 3, 1948, former Time magazine editor Whittaker Chambers accused Alger Hiss of belonging to an underground Communist cell in the mid-1930s; Hiss wired the committee denying the allegations or that he knew Chambers. Since the story broke, Pegler had been writing numerous columns about Frankfurter’s ties to Hiss and how the justice had used his radical protégés to create an “invisible government.”
The Hiss case tested the strength of Frankfurter’s liberal network. It not only hurt the justice’s reputation but also those of his protégés. In their refusal to abandon Hiss, Frankfurter, Acheson, and others revealed the depth of their loyalty to their friend and their disbelief that he could be a Communist.
