Race, Civil Rights, and the United States Court of Appeals for the Fifth Judicial Circuit

RACE, CIVIL RIGHTS, AND THE UNITED STATES COURT OF APPEALS FOR THE FIFTH JUDICIAL CIRCUIT By JOHN MICHAEL SPIVACK A DISSERTATION PRESENTED TO THE GRADUATE COUNCIL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 1978 Copyright 1978 by John Michael Spivack ACKNOWLEDGEMENTS In apportioning blame or credit for what follows, the allocation is clear. Whatever blame attaches for errors of fact or interpretation are mine alone. Whatever deserves credit is due to the aid and direction of those to whom I now refer. The direction, guidance, and editorial aid of Dr. David M. Chalmers of the University of Florida has been vital in the preparation of this study and a gift of intellect and friendship. his Without persistent encouragement, I would long ago have returned to the wilds of legal practice. My debt to him is substantial. Dr. Larry Berkson of the American Judicature Society provided an essential intro- duction to the literature on the federal court system. Dr. Richard Scher of the University of Florida has my gratitude for his critical but kindly reading of the manuscript. Dean Allen E. Smith of the University of Missouri College of Law and Fifth Circuit Judge James P. Coleman have me deepest thanks for sharing their special insight into Judges Joseph C. Hutcheson, Jr., and Ben Cameron with me. Their candor, interest, and hospitality are appre- ciated. Dean Frank T. Read of the University of Tulsa School of Law, who is co-author of an exhaustive history of desegregation in the Fifth Cir- cuit, was kind enough to confirm my own estimation of the judges from his broad and informed perspective. I owe very special thanks to Judges John R. Brown, Warren L. Jones, Richard Taylor Rives, Elbert Parr Tuttle, and John Minor Wisdom. I am, m of course, grateful for the time they took from busy schedules to talk with me. But there is more. To meet them, to know them as more than the minds behind judicial opinions has been one of the real privileges of my life. They are the honor, the dignity, the beauty of law. I can only say of them, it was the South' s good luck they served us on the Fifth Circuit, and not on the Supreme Court, where they deserved to be. The debt I owe Patricia Spivack, my wife, friend, and counselor, can not be measured. Her personal sacrifice not only was necessary to the completion of this study, it created the opportunity to even begin it. It is a debt I shall not soon be able to repay. IV . PREFACE On May 17, 1954, the nine Justices of the United States Supreme Court initiated the most far reaching change in the South since the abolition of slavery. In four cases consolidated under the title of Brown v. Board of Education of Topeka , they decided that the practice of requiring by law the racial segregation of children in the public schools was in violation of the constitutional guaranty of the equal protection of the law. The least democratic branch of the federal government had mandated the reversal of centuries of discrimination and a half- century of national acceptance of Southern race relations. The law of the land had been remade, but as was true with all judicial decisions, this did not necessarily change behavior. Whether or not the promise of Brown would be fulfilled depended upon the success of efforts to imple- ment and enforce that decision. What follows is a crucial part of that s to ry The genesis of this study was a desire to understand the performance of the South' s federal judges in the early years after the Brown decision. This topic was suggested by two books on the role of the Southern federal judges in school desegregation and voting rights cases. Jack Peltason's 58 Lonely Men , and Charles Hamilton's The Bench and the Ballot . Both authors divided the judges into three categories. The "Integrationist" category contained a small minority of the judges. These judges agreed completely with the Supreme Court and actively promoted and extended the . process of desegregation. A "Segregationist" category constituted a majority of the judiciary. These judges favored racial segregation, disagreed with the Supreme Court, but were also committed to the rule of law. They did not wish to force compliance with Brown , but they obeyed the Supreme Court mandate. They were capable of being educated by attorneys for blacks who brought suit to desegregate the schools and would correct clear cases of discriminatory treatment. The last category, consisting of a large minority of the Southern judges, was described as "Die-Hard" or "Resistors." These men took segregation of the races as an article of faith and attempted to prevent or delay the impact of the Supreme Court decision and the application of national racial policy in the South. Peltason and Hamilton dealt with the Southern federal judges as a whole, but they concentrated upon the role and activities of the Dis- trict Courts. The scant attention they paid to the Courts of Appeals conformed to the general pattern of the historical literature. Interest has been limited to the policy setting body and final forum, the Supreme Court, and the trial level of the federal system, the District Courts. While political scientists have been concerned with Appeals Court adminis- tration, predicting the behavior of appellate judges, and the political nature of the judicial process, historians seem to have ignored these courts. Nevertheless, it was apparent that the Courts of Appeals merited investigation, for they were the final arbiter in well over 90 per cent of all federal litigation and an even higher percentage of the desegregation suits well into the I960' s What I most wanted to understand was why the judges reacted so differently to their role in desegregating the Deep South. How could Peltason's and Hamilton's three part typology be explained, if indeed their analysis was correct. A reading of the cases convinced me that there was a discernible pattern among the judges, and that pattern was accurately reflected in the proposed categories. It had been my ex- perience as a practicing attorney, confirmed by the literature, that most Southern judges shared a roughly similar background. Most were Democrats, educated either in the South or at the most prestigious of the Ivy League schools, brought up in comfortable circumstances, and active practi- tioners of general law. I hoped to determine what factors or influences led these judges to follow the very diverse routes that Peltason and Hamilton described. The vehicle by which I chose to examine the development of the Court of Appeals judges was the school desegregation litigation in the Fifth Circuit, which includes most of the Deep South states, in the years immediately following the Brown desegregation decisions. This period, from 1954 to 1961, I believed was the most difficult time for the Fifth Circuit Judges. Resistance to integration was entrenched, for the notion of racially mixed schools was so new to the South. The Supreme Court, after it had delivered its landmark decisions, more or less retired from active participation in desegregation. The Eisenhower Administra- tion did not push for enforcement, and Congress passed no meaningful civil rights legislation until 1964. The Civil Rights Movement was yet in its infancy. These were the years of the heyday of the White Citizens Councils, and their more violent brethren, the reborn Ku Kl ux Klan lurked in the piney wood wings. As a result, the lower federal courts were virtually on their own in the enforcement process, during the most difficult period of Southern resistance. Not since the first reconstruction vn were the contradictions of public opinion and community pressures on the one hand and the requirements of the law on the other greater, and on the earlier occasion, the pressures won. Thus, the contrasting paths chosen by the Appeals judges would be most clearly delineated. It was immediately apparent that I could not hope to examine all of the desegregation cases. Such an endeavor would have occupied decades rather than years, since I intended to give as complete as possible a description of each case and there were literally hundreds of cases. I therefore sought a limited number of school cases tried during the Eisenhower years to serve as examples of different patterns. The primary requirement in each instance was that the Fifth Circuit Court of Appeals played an important role in the litigation. The three suits I settled upon involved the schools of Miami, Dallas, and New Orleans. The Miami case was relatively uncomplicated, involved little contro- versy, and resulted in voluntary but token integration. It was typical of the majority of the school cases. Both the Dallas and New Orleans cases were long struggles, involving multiple hearings and bitter-end resistance. In the Dallas cases, the problem centered around two Dis- trict Court judges who made every effort possible to prevent or delay the enforcement of Brown . In New Orleans, the District Court and Court of Appeals were arrayed against the entire state government machinery of Louisiana. The judges I chose to examine were those who were either on the Court in 1954 or came to serve at least until 1961. That list consisted of seven men: Joseph C. Hutcheson, Jr., Richard Taylor Rives, Elbert Parr Tuttle, Warren L. Jones, Benjamin F. Cameron, John R. Brown, and John Minor Wisdom. As so often happens, real life does not fit vm conveniently one's preconceived assumptions. My intended examination of the three-part typology described by Hamilton and Peltason was impossible, for these men did not share a similar background.

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