The Fifth Circuit Four: The Unheralded Judges Who Helped to Break Legal Barriers in the Deep South Max Grinstein Junior Division Historical Paper Historical Paper Word Count: 2,500 Process Paper Word Count: 500 Grinstein 1 Process Paper NOTE: Since this is the first year that historical papers are required to have a process paper, we have used one from a past project in the Performance category to demonstrate the order of your written materials. In the past, women in the sciences were often overlooked, so for National History Day, I chose to focus on an under-recognized female scientist. Early in my research, I found Williamina Paton Fleming. I was surprised I had never encountered her although I had heard of her colleagues, Annie Jump Cannon and Henrietta Leavitt. I have always loved studying the stars and am fascinated by the role of women in astronomy whose important contributions are sometimes forgotten. Williamina Fleming’s unique ability to interpret astronomical photographs changed astronomy in nineteenth-century America and beyond, breaking barriers for scientists and for women. In preliminary research, I located Harvard’s digital scans of Fleming's diary and excellent period photographs, as well as many academic articles about her and other women at the Harvard Observatory. I was also privileged to interview Dr. Lindsay Smith, current Curator of Astronomical Photographs at Harvard. She was extremely helpful in suggesting sources and later reviewed the performance script. Not much is known about Fleming’s early years in Scotland. After her husband abandoned her, she worked for Harvard Observatory Director Edward Pickering, who hired her for the new project to map the night sky. The process involved taking images though telescopes, then mapping all the stars in that small section of sky. Using this process, Fleming discovered stars, novae, and nebulae and encouraged the work of other astronomers, while facilitating many important discoveries. I chose performance to give a voice to a person who has been largely unnoticed. This category also allows others to help tell her story. A professor giving a tour is used to set the Grinstein 2 scene, reciting a poem about observing the stars, while also indicating that astronomy was once seen as a job for men only. I use Fleming herself to describe the process of analyzing the astronomical photographs, and her own words from her journal explain how women were paid differently than men. Annie Jump Cannon, who lived until 1941 and wrote Fleming’s obituary, discusses Fleming’s legacy. The professor concludes by explaining how the plates continue to be used in the twenty-first century. The set pieces include a telescope to create the impression of being in the observatory and a table similar to the one seen in images. Props, including the “flyspanker” I crafted, are also based on photos. I also fabricated glass plates to imitate theirs. Some of the obstacles I encountered include the lack of reliable information about Fleming’s youth. Fleming also only kept a journal for three months; however, many of her colleagues did keep life-long journals. While creating this project, I learned much about the history and the science of astronomy and the evolution of women’s roles in science. I learned there were a variety of attitudes toward women scientists in the past. Pickering was ahead of his time hiring women, but not everyone accepted them as scientists. It is important that these women be recognized, and I hope to help reveal Fleming and her associates for the stars that they are. Grinstein 3 Paper “For thus saith the Lord God, how much more when I send my four sore judgments upon Jerusalem, the sword, and the famine, and the noisome beast, and the pestilence, to cut off from it man and beast.”1 In the Bible, the Four Horsemen of the Apocalypse are said to usher in the end of the world. That is why, in 1964, Judge Ben Cameron gave four of his fellow judges on the United States Court of Appeals for the Fifth Circuit the derisive nickname “the Fifth Circuit Four” – because they were ending the segregationist world of the Deep South.2 The conventional view of the civil rights struggle is that the Southern white power structure consistently opposed integration.3 While largely true, one of the most powerful institutions in the South, the Fifth Circuit, helped to break civil rights barriers by enforcing the Supreme Court’s decision in Brown v. Board of Education, something that other Southern courts were reluctant to do.4 Despite personal and professional backlash, Judges John Minor Wisdom, Elbert Tuttle, Richard Rives, and John Brown played a significant but often overlooked role in integrating the South.5 Background on the Fifth Circuit The federal court system, in which judges are appointed for life, consists of three levels.6 At the bottom are the district courts, where cases are originally heard by a single trial judge. At 1 Ezekiel 14:21 (King James Version). 2 Bass, Jack. “The 'Fifth Circuit Four'.” The Nation, 15 Apr. 2004. 3 Bateman, David A, et al. “How Southern Politicians Defended White Supremacy — and Made the South Poorer.” The Washington Post, 26 Nov. 2018. 4 Supreme Court. Brown v. Board of Education. 16 May 1954. Westlaw. 5 Costa, Gregg, and Max Grinstein. “Interview with Judge Costa.” 14 Jan. 2020. 6 United States Constitution. Art. III, Sec I Grinstein 4 the top is the Supreme Court. However, since Supreme Court review is discretionary, it generally takes few cases.7 Thus, there is a crucial set of appellate courts in the middle, called the “circuit courts,” where appeals from the district level are heard by randomly-selected panels of three judges. During the civil rights era, there were eleven circuits, each covering a unique geographical jurisdiction.8 The Fifth Circuit stretched from Texas to Florida – most of the Deep South.9 The Fifth Circuit Four were members of the nine-judge Fifth Circuit during this period. Each had unique life experiences that catalyzed their progressive racial stances. John Minor Wisdom10 was born into Southern aristocracy as the son of a New Orleans cotton broker.10 Often called the “scholar” of the Fifth Circuit,12 Wisdom received his judicial appointment from President Dwight Eisenhower for boldly supporting him in the 1952 Republican National Convention, an almost unthinkable act in the heavily Democratic South.13 The “leader” of the Fifth Circuit, Elbert Tuttle,14 was also an Eisenhower appointee and a staunch Republican, believing that the Southern Democratic party was kept small to maintain a hold on power.15 Having grown up in Hawaii, Tuttle was used to working and socializing with minorities, a unique perspective in the South.16 7 Ibid. 8 Appendix A 9 Read, Frank T., and Lucy S. McGough. Let Them Be Judged: the Judicial Integration of the Deep South. Scarecrow Press, 1978. Pg. 8. 10 Appendix B 11 Friedman, Joel Wm. Champion of Civil Rights: Judge John Minor Wisdom. Louisiana State University Press, 2013. Pg. 6. 12 Ibid. Pg. 12. 13 Cornwell, Rupert. “Obituary: John Minor Wisdom.” The Independent, 4 June 1999. 14 Appendix C 15 Bass, Jack. Unlikely Heroes. University of Alabama Press, 1990. Pg. 30. 16 Costa, Gregg, and Max Grinstein. “Interview with Judge Costa.” 14 Jan. 2 Grinstein 5 The only Democrat of the Four and a devout Baptist, Alabamian Richard Rives17 impressively passed the bar exam at age nineteen.18 Rives’ racial attitudes were largely influenced by his son, who served in the Pacific Theatre of World War II and told his father of the valiance with which African American soldiers fought. When Rives’ son died in a car accident, Rives decided to accept any federal judicial appointment so he could honor his son’s legacy and help desegregate the South.19 The final Eisenhower appointee of the Four, John Brown,20 was born in Nebraska and attended law school in Michigan.21 Brown did not grow up around overt racism, as there was only one African American in his hometown.22 When Brown moved to Houston to specialize in admiralty law, he was disgusted when trial spectators would gasp when he formally addressed African American witnesses as “Mister.”23 Throughout Brown’s judicial career, he went out of his way to hire Jewish law clerks, as many Jews were then excluded from legal jobs.24 However, the Fifth Circuit was not uniformly racially progressive. Judge Ben Cameron, a Mississippi native, was the Circuit’s staunchest defender of segregation.25 Cameron justified his actions based on his belief that integration did not reflect the will of white Southerners. Until his 17 Appendix D 18 Bass, Jack. “Richard T. Rives.” Encyclopedia of Alabama, Alabama State Department of Education, 2 Aug. 2013, www.encyclopediaofalabama.org/article/h-3494. 19 Emmanuel, Anne S. “Forming the Historic Fifth Circuit: The Eisenhower Years.” Texas Forum on Civil Liberties and Civil Rights, 2002. Pg. 4. 20 Appendix E 21 Emmanuel, Anne S. “Forming the Historic Fifth Circuit: The Eisenhower Years.” Texas Forum on Civil Liberties and Civil Rights, 2002. Pg. 9. 22 Susman, Steve, and Max Grinstein. “Interview with Mr. Susman.” 10 Jan. 2020. 23 Bass, Jack. Unlikely Heroes. University of Alabama Press, 1990. Pg. 70. 24 Susman, Steve, and Max Grinstein. “Interview with Mr. Susman.” 10 Jan. 2020. 25 Herbers, John. “Split-Court Plan Vexes U.S. Judges.” The New York Times, 16 May 1964. Grinstein 6 death in 1964, Cameron spearheaded the resistance against the Four. Indeed, he gave them their nickname, a reference to the Four Horsemen of the Apocalypse.26 The Fifth Circuit’s Role in Enforcing Brown in the Deep South Beginning in part with Plessy v.