Supreme Court Law Clerks' Recollections of Brown V. Board of Education II
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St. John's Law Review Volume 79 Number 4 Volume 79, Fall 2005, Number 4 Article 1 Supreme Court Law Clerks' Recollections of Brown v. Board of Education II Gordon B. Davidson Daniel J. Meador Earl E. Pollock E. Barrett Prettyman Jr. John Q. Barrett Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. ARTICLE SUPREME COURT LAW CLERKS' RECOLLECTIONS OF BROWN V. BOARD OF ED UCATION II GORDON B. DAVIDSON DANIEL J. MEADOR EARL E. POLLOCK E. BARRETT PRETTYMAN, JR. INTRODUCED AND MODERATED BY JOHN Q. BARRETrt INTRODUCTION On May 17, 1954, the Supreme Court of the United States v. Board of announced two landmark decisions: Brown 2 1 Boiling v. Sharpe. Education of Topeka and its companion case, state cases, 3 In Brown, which was a grouping of four separate City, and t Professor of Law, St. John's University School of Law, New York New York Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, I am grateful to (www.roberthjackson.org). Introduction © 2005 by John Q. Barrett. comments; to the roundtable discussants for their participation, editing and helpful commenced Dr. Ophelia DeLaine Gona (daughter of the late Rev. J.A. DeLaine, who Carolina, see the Briggs v. Elliott litigation attacking school segregation in South law clerk to infra note 3) and the Honorable William T. Coleman, Jr. (a former on the Brown Justice Felix Frankfurter who later worked as a NAACP attorney events, litigation) for their presence at this roundtable, lectures at companion Court Historical recollections, and interest; to the Jackson Center and the Supreme Zanias, Jennifer Society for cosponsoring the roundtable; and to law students Eleni N. Thomas, and Jessica Duffy for their research and transcribing assistance. 1 347 U.S. 483 (1954). 2 347 U.S. 497 (1954). 3 The four state cases that were consolidated and decided together in Brown 1; Briggs et al. were Brown et al. v. Board of Education of Topeka et al. [Kansas], No. Board of Prince v. Elliott et al. [South Carolina], No. 2; Davis et al. v. County School 823 ST. JOHN'S LA W REVIEW [Vol. 79:823 and in Bolling, a case originating in the federal government's District of Columbia, the Supreme Court unanimously rejected 4 its prior precedent and struck down as unconstitutional all state and federal laws requiring the racially segregated education of public school students. In the ringing words of Chief Justice Earl Warren's opinion, the Court concluded that in the field of public education "separate the doctrine of but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws .... 5 Last year, fifty years after Brown and Bolling, numerous events and publications commemorated the golden anniversary of 6 those landmarks. While many of the perspectives on Brown that were voiced and written then are celebratory, some are not.7 The critical perspectives, focusing on all that has not happened since 1954 to achieve true racial equality in the United States, often target Brown itself for taking its path rather than some alternative. In large measure, less-than-celebratory perspectives on Brown v. Board of Education are focused on the course and outcome of litigation that did not conclude, but in fact really Edward County, Virginia, et al., No. 4; and Gebhart et al. v. Belton et al. [Delaware], No. 10. 4 See Plessy v. Ferguson, 163 U.S. 537 (1896). 5 Brown, 347 U.S. at 495. Brown and its companion cases involving state laws were decided under the equal protection clause of the Fourteenth Amendment. Because that provision applies only to states, Bolling, the companion federal case, was decided under the due process clause of the Fifth Amendment. See Bolling, 347 U.S. at 499-500. 6 See, e.g., Pub. L. No. 107-41, 115 Stat. 226 ("To establish a commission for the purpose of encouraging and providing for the commemoration of the 50th anniversary of the Supreme Court Decision in Brown v. Board of Education.") (signed Sept. 18, 2001); George W. Bush, President Signs Brown v. Board of Education Anniversary Commission: Statement by the President (released Sept. 19, 2001), www.whitehouse.gov/news/releases/2001/09/print/20010919.16.html; George W. Bush, President Speaks at Brown v. Board of Education National Historic Site (released May 17, 2004), www.whitehouse.gov/news/releases/2004/05/ print/20040517-4.html; see also Pub. L. No. 102-525, 106 Stat. 3438 ("To provide for the establishment of the Brown v. Board of Education National Historic Site in the State of Kansas and for other purposes.") (1992). 7 See, e.g., DERRICK BELL, SILENT COVENANTS: BROWN V. BOARD OF EDUCATION AND THE UNFULFILLED HOPES FOR RACIAL REFORM (2004). 20051 LAW CLERKS RECALL BROWN II began, on May 17, 1954. The Brown and Bolling decisions identified a new constitutional requirement-the Constitution prohibits racially segregated education-but they did not decree a remedy for the segregated school systems that then existed. Instead, the Supreme Court ordered, in Brown itself, that the school segregation cases be put back on its docket for further and requested further briefing regarding the kind of argument 8 decree the Court should issue. One year later, after additional briefing by parties and amici, lengthy oral arguments, and extensive work and judicial deliberations within the privacy of the Supreme Court, the Justices decreed on Tuesday, May 31, 1955, again unanimously, that the Court was remanding the cases to the trial courts that had heard them originally for those courts to fashion local desegregation decrees. 9 This decision has come to be known as Brown II. It is best remembered, and often attacked, for a four- word phrase that perhaps invited, and thus encouraged, governmental delay in desegregating schools and racist resistance to that process. In Brown II, we recall, the Supreme Court ordered the lower courts, on remand, to go about ending 10 segregated school systems "with all deliberate speed."' On May 18, 2005, just two weeks before the 50th anniversary of the Brown II decision, the Robert H. Jackson 1 Center in Jamestown, New York, and the Supreme Court Historical Society assembled for a group discussion four attorneys who had been Supreme Court law clerks during that momentous Term of the Court. These men, Gordon B. Davidson, Daniel J. Meador, Earl E. Pollock, and E. Barrett Prettyman, Jr., had been, fifty and more years earlier, involved to varying degrees in the Supreme Court's work, and privy to various Justices' thoughts, as first Brown I and then Brown H were being decided. After leaving their Supreme Court clerkships in the summer of 1955, these men built distinguished careers in different cities and generally did not see each other or keep in 8 Brown, 347 U.S. at 495-96 & n.13. 9 Brown v. Bd. of Educ., 349 U.S. 294, 299-301 (1955) ("Brown IF). 10 Id. at 301. and legacy 11 The Robert H. Jackson Center is dedicated to the life, work, words, the nine of Justice Jackson (1892-1954). See www.roberthjackson.org. He was one of Brown and Justices serving on the Supreme Court as it considered and decided 9, Bolling during the Court's October Terms 1952 and 1953. Jackson died on October 1954, prior to the Brown II oral arguments. ST. JOHN'S LAWREVIEW [Vol. 79:823 touch. Although they were interviewed individually over the years about Brown, these former law clerks had not, until this discussion, gathered as a group to share, compare, and assemble their recollections of Brown, and especially Brown II. The result, on May 18th of this year and now in this publication,12 is a detailed discussion that describes from the inside what the Supreme Court decided and how the Justices got there in Brown II, the culmination of the Brown v. Board of Education landmark. This Jackson Center/Supreme Court Historical Society roundtable discussion among Brown II law clerks is the second half of a pair of proceedings. In 2004, the Jackson Center hosted a similar discussion among four attorneys who had worked as law clerks to Justices during the Supreme Court's October Term 1953 and thus were involved, again in varying degrees, in the process that culminated in Brown L 13 Two participants in that 12 The participants in the May 18, 2005, discussion lightly edited their remarks for this publication. 13 See John David Fassett, Earl E. Pollock, E. Barrett Prettyman, Jr. & Frank E.A. Sander, Supreme Court Law Clerks' Recollections of Brown v. Board of Education, 78 St. John's L. Rev. 515 (2004) (introduced and moderated by John Q. Barrett). Former Supreme Court law clerks who worked for justices during the Terms of various segregation cases have published these additional recollections of clerkship experiences: Daniel J. Meador, Justice Black and His Law Clerks, 15 ALA. L. REV. 57 (1962-63) [hereinafter Meador, Justice Black and His Law Clerks]; Daniel J. Meador, Mr. Justice Black: A Tribute, 57 VA. L. REV. 1109 (1971); Interview by Mortimer Schwartz with William W. Oliver, former law clerk to Chief Justice Warren (May 17, 1972), WORKING IN THE SUPREME COURT.