Supreme Court Law Clerks' Recollections of Brown v. Board of Education The Harvard community has made this article openly available. Please share how this access benefits you. Your story matters Citation John David Fassett, Earl E. Pollock, E. Barrett Prettyman Jr., Frank E.A. Sander & John Q. Barrett, Supreme Court Law Clerks' Recollections of Brown v. Board of Education, 78 St. John's L. Rev. 515 (2004). Published Version http://scholarship.law.stjohns.edu/lawreview/vol78/iss3/8/ Citable link http://nrs.harvard.edu/urn-3:HUL.InstRepos:16201735 Terms of Use This article was downloaded from Harvard University’s DASH repository, and is made available under the terms and conditions applicable to Other Posted Material, as set forth at http:// nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of- use#LAA St. John's Law Review Volume 78 Article 8 Issue 3 Volume 78, Summer 2004, Number 3 February 2012 Supreme Court Law Clerks' Recollections of Brown v. Board of Education John David Fassett Earl E. Pollock E. Barrett rP ettyman Jr. Frank E.A. Sander John Q. Barrett Follow this and additional works at: http://scholarship.law.stjohns.edu/lawreview Recommended Citation Fassett, John David; Pollock, Earl E.; Prettyman, E. Barrett rJ .; Sander, Frank E.A.; and Barrett, John Q. (2012) "Supreme Court Law Clerks' Recollections of Brown v. Board of Education," St. John's Law Review: Vol. 78: Iss. 3, Article 8. Available at: http://scholarship.law.stjohns.edu/lawreview/vol78/iss3/8 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 administrator of St. John's Law Scholarship Repository. For more information, please contact [email protected]. ARTICLES SUPREME COURT LAW CLERKS' RECOLLECTIONS OF BROWN V. BOARD OF ED UCA TION JOHN DAVID FASSETT EARL E. POLLOCK E. BARRETT PRETTYMAN, JR. FRANK E.A. SANDER MODERATED BY JOHN Q. BARRETTt INTRODUCTION On May 17, 1954, the Supreme Court of the United States decided in Brown v. Board of Education that state and federal laws segregating public school children by race were unconstitutional.1 In Brown, which actually is the name of just one of the five lower court decisions on school segregation that the Supreme Court reviewed 50 years ago,2 Chief Justice Earl Warren wrote for a Supreme Court that was unanimous. The t Professor of Law, St. John's University School of Law, New York City, and Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, NY (www.roberthjackson.org). Introduction © 2004 by John Q. Barrett. I am grateful to my research assistant Lauren DiFilippo for her work on this transcript. 1 See Brown v. Board of Education, 347 U.S. 483 (1954). 2 The Brown decision and opinion actually covers and resolves four cases that arose from states: No. 1, Brown et al. v. Board of Education of Topeka et al. [Kansas]; No. 2, Briggs et al. v. Elliott et al. [South Carolina]; No. 4, Davis et al. v. County School Board of Prince Edward County, Virginia, et al.; and No. 10, Gebhart et al. v. Belton et al. [Delaware]. A fifth case, No. 8, Bolling et al. v. Sharpe et al., arose from the federal government's District of Columbia and was decided and explained, as Brown's companion, in a separate opinion by Chief Justice Warren for the unanimous Court. See 347 U.S. 497. ST. JOHN'S LAW REVIEW [Vol.78:515 Court in Brown explicitly rejected its own almost 60-year-old precedent approving "separate but equal" public institutions and facilities for persons of differing races. 3 Brown is generally regarded as among the most, if not as itself the most, significant Supreme Court decision in United States history. 4 The Justices of the Supreme Court recognized, during the two Terms in which they considered Brown and its companion school segregation cases, that the issues they raised were, in much of the United States, extremely controversial. The Justices therefore agreed among themselves not to discuss their deliberations on these cases with others-not even their own law clerks. As a result, most of the thirty-six young lawyers who worked as law clerks at the Supreme Court during its 1952 and 1953 Terms were not privy to very much of the Justices' thinking, work, discussions and draft opinions concerning school segregation-the legal and human processes that actually produced the Brown decision. But few "total secrecy" systems actually live up to their ideal, and this one had exceptions. On April 28, 2004, the Robert H. Jackson Center in Jamestown, New York, 5 assembled, for a group discussion, four former Supreme Court law clerks: John David Fassett, Earl E. Pollock, E. Barrett Prettyman, Jr. and Frank E.A. Sander. These attorneys had been, fifty years earlier and to varying degrees, "in the loop" of the Justices' thinking about and deciding of Brown v. Board of Education. After leaving their Supreme Court clerkships (two of them just a month or two after the 3 See Plessy v. Ferguson, 163 U.S. 537 (1896). 4 For some of the best recent measures of Brown's significance, see CLARE CUSHMAN & MELVIN I. UROFSKY, EDS., BLACK, WHITE, AND BROWN: THE LANDMARK SCHOOL DESEGREGATION CASE IN RETROSPECT (2004); DERRICK BELL, SILENT COVENANTS: BROWN V. BOARD OFEDUCATIONAND THE UNFULFILLED HOPES FOR RACIAL REFORM (2004); MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004); CHARLES J. OGLETREE, JR., ALL DELIBERATE SPEED: REFLECTIONS ON THE FIRST HALF CENTURY OF BROWN V. BOARD OF EDUCATION (2004); NORMAN I. SILBER, WITH ALL DELIBERATE SPEED: THE LIFE OF PHILIP ELMAN, AN ORAL HISTORY MEMOIR (2004); JAMES T. PATTERSON, BROWN V. BOARD OF EDUCATION: A CIVIL RIGHTS MILESTONE AND ITS TROUBLED LEGACY (2001). 5 The Robert H. Jackson Center is named after and dedicated to the life, work, words and legacy of Justice Jackson (1892-1954). See www.roberthjackson.org. Jackson was one of the nine Justices serving on the Supreme Court as it considered and decided Brown and its companion cases during October Terms 1952 and 1953. 2004] LAW CLERKS RECALL BROWN Brown decision), these men built distinguished careers in different cities and generally did not see each other or keep in touch. Although they were interviewed individually over the years about Brown by historians and others, 6 these former law clerks did not, until this discussion, gather as a group and share, compare and assemble their recollections-against the backdrop of years of personal and societal experience and much historical scholarship and analysis-of Brown. The result, on April 28th of this year and now in this publication, 7 is an extraordinary and unprecedented discussion. The participants, who are the most knowledgeable "insiders" who still are in positions to guide us, explain how the Justices of the Supreme Court came to decide Brown v. Board of Education as they did, individually and as a Court. This discussion is the best first-person account (to date) of the decision making process inside the Court. The discussion illuminates particularly well the process and chronology of developments by which Chief Justice Warren wrote his Brown opinion and other Justices decided not to write separately and also not to dissent, resulting in the unanimous Court of May 17, 1954. BIOGRAPHICAL BACKGROUND ON THE PARTICIPANTS John David Fassett, a graduate of the University of Rochester and Yale Law School, is the retired CEO and Chairman of the Board of United Illuminating Company in New Haven, Connecticut. He began to work as a law clerk to Justice Stanley F. Reed in June 1953 and served through the Supreme Court's October Term 1953. 6 The leading history of Brown is RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (1975; updated ed. 2004). At various times in 1971 and 1974, Kluger interviewed Fassett, Pollock, Prettyman and Sander individually for what became SIMPLE JUSTICE. 7 The participants in the April 28, 2004, Jackson Center discussion lightly edited their remarks for this publication. Their discussion was taped and rebroadcast in two parts on C-SPAN's "America and the Courts" program on June 12 and 19, 2004. These programs are now available for viewing in a streaming video format on C-SPAN's website (www.cspan.com) and also can be purchased from C- SPAN on video and CD-ROM. ST. JOHN'S LAW REVIEW [Vol.78:515 Earl E. Pollock, a graduate of the University of Minnesota and the Northwestern University School of Law, retired in 1992 from his partnership in the Chicago law firm of law firm of Sonnenschein, Nath & Rosenthal. He became a law clerk to Chief Justice Fred M. Vinson in summer 1953 and, following the Chief Justice's sudden death that September, a law clerk to Chief Justice Earl Warren for the Supreme Court's October Terms 1953 and 1954. E. Barrett Prettyman, Jr., a graduate of Yale University and the University of Virginia School of Law, is Of Counsel to Hogan & Hartson in Washington, D.C. He served as Justice Robert H. Jackson's law clerk during the Supreme Court's October Terms 1953 and 1954 and, upon the Justice's death in October 1954, clerked for Associate Justices Felix Frankfurter and John M. Harlan, successively, during the remainder of the 1954 Term. Frank E.A. Sander, a graduate of Harvard College and Harvard Law School, is Harvard's Bussey Professor of Law and Director of the Harvard Law School Program on Dispute Resolution.