Supreme Court Law Clerks' Recollectionsof Brown v. Board of Education

The Harvard community has made thisarticle openly available. Please share howthis 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 DASHrepository, and is made available under the terms and conditionsapplicable 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 ReviewVolume 78Issue 3 Volume 78, Summer 2004, Number 3 Article 8

February 2012

Supreme Court Law Clerks' Recollections ofBrown v. Board of EducationJohn David Fassett

Earl E. Pollock

E. Barrett Prettyman Jr.

Frank E.A. Sander

John Q. Barrett

Follow this and additional works at: http://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 administrator of St. John's Law Scholarship Repository. For more information, please contactcerjanm@stjohns.edu.

Recommended CitationFassett, John David; Pollock, Earl E.; Prettyman, E. Barrett Jr.; Sander, Frank E.A.; and Barrett, John Q. (2012) "Supreme Court LawClerks' 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

ARTICLES

SUPREME COURT LAW CLERKS'RECOLLECTIONS OF BROWN V. BOARD OF

ED UCA TION

JOHN DAVID FASSETTEARL 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 Statesdecided in Brown v. Board of Education that state and federallaws segregating public school children by race wereunconstitutional.1 In Brown, which actually is the name of justone of the five lower court decisions on school segregation thatthe Supreme Court reviewed 50 years ago,2 Chief Justice EarlWarren wrote for a Supreme Court that was unanimous. The

t Professor of Law, St. John's University School of Law, New York City, andElizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, NY(www.roberthjackson.org). Introduction © 2004 by John Q. Barrett. I am grateful tomy 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, Gebhartet 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 andexplained, as Brown's companion, in a separate opinion by Chief Justice Warren forthe unanimous Court. See 347 U.S. 497.

ST. JOHN'S LAW REVIEW

Court in Brown explicitly rejected its own almost 60-year-oldprecedent approving "separate but equal" public institutions andfacilities for persons of differing races.3 Brown is generallyregarded as among the most, if not as itself the most, significantSupreme Court decision in United States history. 4

The Justices of the Supreme Court recognized, during thetwo Terms in which they considered Brown and its companionschool segregation cases, that the issues they raised were, inmuch of the United States, extremely controversial. The Justicestherefore agreed among themselves not to discuss theirdeliberations on these cases with others-not even their own lawclerks. As a result, most of the thirty-six young lawyers whoworked as law clerks at the Supreme Court during its 1952 and1953 Terms were not privy to very much of the Justices'thinking, work, discussions and draft opinions concerning schoolsegregation-the legal and human processes that actuallyproduced the Brown decision. But few "total secrecy" systemsactually live up to their ideal, and this one had exceptions.

On April 28, 2004, the Robert H. Jackson Center inJamestown, New York, 5 assembled, for a group discussion, fourformer 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 varyingdegrees, "in the loop" of the Justices' thinking about and decidingof Brown v. Board of Education. After leaving their SupremeCourt 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: THELANDMARK SCHOOL DESEGREGATION CASE IN RETROSPECT (2004); DERRICK BELL,SILENT COVENANTS: BROWN V. BOARD OFEDUCATION AND THE UNFULFILLED HOPES

FOR RACIAL REFORM (2004); MICHAEL J. KLARMAN, FROM JIM CROW TO CIVILRIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY (2004);

CHARLES J. OGLETREE, JR., ALL DELIBERATE SPEED: REFLECTIONS ON THE FIRSTHALF 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 CIVILRIGHTS 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 consideredand decided Brown and its companion cases during October Terms 1952 and 1953.

[Vol.78:515

LAW CLERKS RECALL BROWN

Brown decision), these men built distinguished careers indifferent cities and generally did not see each other or keep intouch. Although they were interviewed individually over theyears about Brown by historians and others, 6 these former lawclerks did not, until this discussion, gather as a group and share,compare and assemble their recollections-against the backdropof years of personal and societal experience and much historicalscholarship and analysis-of Brown.

The result, on April 28th of this year and now in thispublication, 7 is an extraordinary and unprecedented discussion.The participants, who are the most knowledgeable "insiders" whostill are in positions to guide us, explain how the Justices of theSupreme Court came to decide Brown v. Board of Education asthey did, individually and as a Court. This discussion is the bestfirst-person account (to date) of the decision making processinside the Court. The discussion illuminates particularly wellthe process and chronology of developments by which ChiefJustice Warren wrote his Brown opinion and other Justicesdecided not to write separately and also not to dissent, resultingin the unanimous Court of May 17, 1954.

BIOGRAPHICAL BACKGROUND ON THE PARTICIPANTS

John David Fassett, a graduate of the University ofRochester and Yale Law School, is the retired CEO andChairman of the Board of United Illuminating Company inNew Haven, Connecticut. He began to work as a law clerkto Justice Stanley F. Reed in June 1953 and served throughthe Supreme Court's October Term 1953.

6 The leading history of Brown is RICHARD KLUGER, SIMPLE JUSTICE: THEHISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOREQUALITY (1975; updated ed. 2004). At various times in 1971 and 1974, Klugerinterviewed Fassett, Pollock, Prettyman and Sander individually for what becameSIMPLE JUSTICE.

7 The participants in the April 28, 2004, Jackson Center discussion lightlyedited their remarks for this publication. Their discussion was taped andrebroadcast in two parts on C-SPAN's "America and the Courts" program on June12 and 19, 2004. These programs are now available for viewing in a streaming videoformat on C-SPAN's website (www.cspan.com) and also can be purchased from C-SPAN on video and CD-ROM.

2004]

ST. JOHN'S LAW REVIEW

Earl E. Pollock, a graduate of the University of Minnesotaand the Northwestern University School of Law, retired in1992 from his partnership in the Chicago law firm of lawfirm of Sonnenschein, Nath & Rosenthal. He became a lawclerk to Chief Justice Fred M. Vinson in summer 1953 and,following the Chief Justice's sudden death that September, alaw clerk to Chief Justice Earl Warren for the SupremeCourt's October Terms 1953 and 1954.

E. Barrett Prettyman, Jr., a graduate of Yale Universityand the University of Virginia School of Law, is Of Counselto Hogan & Hartson in Washington, D.C. He served asJustice Robert H. Jackson's law clerk during the SupremeCourt's October Terms 1953 and 1954 and, upon theJustice's death in October 1954, clerked for AssociateJustices Felix Frankfurter and John M. Harlan,successively, during the remainder of the 1954 Term.

Frank E.A. Sander, a graduate of Harvard College andHarvard Law School, is Harvard's Bussey Professor of Lawand Director of the Harvard Law School Program on DisputeResolution. He was a law clerk to Justice Felix Frankfurterduring the Supreme Court's October Term 1953.

THE ROUNDTABLE DISCUSSION

Moderator: Good morning. My name is John Barrett. I am aProfessor of Law at St. John's University in NewYork City and the Elizabeth S. Lenna Fellow hereat the Robert H. Jackson Center in Jamestown,New York.

The Robert H. Jackson Center is namedafter and dedicated to the life, work, words andlegacy of Robert H. Jackson. Born in 1892,Jackson was a native of northwesternPennsylvania. In the private sector phase of hislife, Jackson was a lawyer here in this communityof Jamestown for twenty years (1913-33). In 1934,Jackson went to Washington. Rising through the

[Vol.78:515

LAW CLERKS RECALL BROWN

Roosevelt Administration, he became the SolicitorGeneral of the United States, the AttorneyGeneral of the United States and, beginning in1941, an Associate Justice of the Supreme Court,where he served for the remaining thirteen yearsof his life except for one year away as the chiefAmerican prosecutor before the InternationalMilitary Tribunal at Nuremberg, Germanyfollowing World War II.

Justice Jackson was one of the nineJustices serving on the Supreme Court during theTerms 1952 and 1953 as it considered the case andrendered the decision that we commemorate thisspring on the occasion of its fiftieth anniversary,Brown v. the Board of Education of Topeka,Kansas. The Brown case actually consisted of fivecases, four cases arising from states and one casearising from the District of Columbia, which ofcourse is a federal entity, not a state. The fourstates involved were Kansas, which had the leadbilling, and thus gives us Brown v. Board ofEducation of Topeka as the title we use. The otherstate cases came from Virginia, South Carolinaand Delaware.

The Supreme Court, in the Brown case, onMay 17, 1954, ended segregation of schoolchildren, by law, according to race. It did so in thename of the 14th Amendment, which had beenratified following the Civil War and whichguarantees to all persons "the equal protection ofthe laws." What the Supreme Court unanimouslydecided that May 1 7 th, fifty years ago, was thatequal protection means that segregation by lawhas no place in elementary and secondary schooleducation. The Court's decision in Brown was thestart of legal desegregation in America and thestart of the process of racial integration inAmerica, which of course has proven to be anextremely difficult, complex and unfinished project

2004]

ST. JOHN'S LAW REVIEW

for our society. But for that start, we gather heretoday to commemorate and give credit to theSupreme Court.

The nine Justices of course are no longerwith us, but we are privileged to have with us fourof the law clerks who worked in private, inconfidence, for four of the Justices whoparticipated in the Court's deciding of the Browncase in May 1954. The law clerks, who are withme today, are introduced at length in yourmaterials....

These gentlemen are both protagonists andrepresentatives in our conversation this morning.They are protagonists because each of them wasinvolved, in his own way, in the Court's work thatemerged in public on May 17, 1954 as Brown v.Board of Education. But they also are here asrepresentatives, as proxies, for the Justices whowere their employers.

As each of these men left law school, he gotone of the most coveted opportunities for a younglawyer entering the work force: a clerkship with aSupreme Court Justice. I would like to begin byasking each of them to simply introduce the bossand describe what that meant-whom they werearriving to work for-as they arrived at theSupreme Court in the summer of 1953.

So Earl Pollock, tell us about Chief JusticeFred Vinson.

Pollock: I arrived at the Supreme Court in June 1953 tobecome Vinson's law clerk. Unfortunately, I didnot have much of an opportunity to discuss muchin the way of law with him because this was thesummer period and in early September, just twodays after my wife and I had given him a lift hometo his apartment, he died very suddenly and as a

[Vol.78:515

LAW CLERKS RECALL BROWN

Moderator:

Pollock:

Moderator:

Fassett:

result, my tenure with Chief Justice Vinson wasquite brief.

Give us little sense of his background. Where washe from, in terms of region, and what was hiscareer trajectory that led him to become ChiefJustice?

Vinson had come from Kentucky. He had beenSecretary of the Treasury, appointed by PresidentHarry Truman, with whom he was very friendly.He served on the Court of Appeals for the Districtof Columbia Circuit. He was elevated fromTreasury to the Chief Justiceship of the UnitedStates.

Jack Fassett, in terms of seniority, Stanley Reedwas, among the Justices represented here, thesenior Associate Justice. As you arrived from Yaleto be a law clerk, who was Stanley Reed and whatdid it mean to be going to work for him?

Stanley Reed had been born in 1884, in Minerva,Kentucky, a small town outside of Maysville. Hehad been a country lawyer there and representedtobacco cooperatives until he was persuaded tocome to Washington by the Hoover Administrationto work as General Counsel for the Federal FarmBoard and then for the Reconstruction FinanceCorporation, which also was a Hoover entity. Hestayed on when Franklin Roosevelt won his firstterm and ended up being made Solicitor Generaland having the dubious honor of being the SolicitorGeneral who argued all the early New Deal cases,the so-called "sick chicken" case, and the A.A.A.case, and all those other ones involving the NewDeal statutes that were struck down by the oldSupreme Court.

Stanley Reed was F.D.R.'s secondappointment to the Court-Hugo Black was the

2004]

ST. JOHN'S LAW REVIEW

first and there was a little furor when he wasappointed about some of his background andStanley Reed, I guess, was deemed to be a saferappointment. He was a country gentleman, a verykind and nice gentleman who had a cosmopolitaneducation. He had been brought up in Maysvilleby a father who was a doctor and his mother diedat a very early age. But he had gone to KentuckyWesleyan University and gotten a degree there.He then applied to Yale University; Yalerecognized his Kentucky Wesleyan degree for ayear of credit; he ultimately became a graduate inthe class of 1906 at Yale and then he went to lawschool at Virginia and Columbia and then off toParis and studied at the Sorbonne-

Moderator: An upward march.

Fassett: Yes, and then he came back to Maysville topractice.

Moderator: Now Frank Sander, let me turn to you. Itcertainly can't be the case that each member of theCourt was from Kentucky. Who was FelixFrankfurter and what did it mean to be arriving asFelix Frankfurter's law clerk?

Sander: Well, about as far from Kentucky as you can thinkof: he was from Vienna-that is Austria, notVirginia. [Laughter] He was a very complexperson, hard to capsule in a short profile: veryinterested in the world of ideas, endless interest inthe world of people. I think he wrote more lettersand received more letters than anybody that Iknow of.

Prettyman: Corresponded with just about everybody, didn'the?

Sander: Absolutely. And I think at Harvard Law School, Iguess, he was very much revered because he

[Vol.78:515

LAW CLERKS RECALL BROWN

graduated Harvard Law School and then was inthe government some and then came back to teachand was a long-time faculty member at HarvardLaw School. He made an arrangement with one ofthe professors at Harvard Law School that hewould select his two law clerks each year frompeople who had worked in the lower courts, sopeople who got this opportunity were very lucky.They knew something-he wasn't as much of amystery for us when we went down to Washingtonbecause we knew the prior law clerks. With veryfew exceptions, they were all Harvard law schoolgraduates, which was perhaps a mistake, but itwas just Frankfurter's simple way of trying topreserve continuity and get people who wereknown very well to the recommender. So he didn'thave what people do these days-people writingendless letters to nine Justices to try and get aclerkship. In those days with Frankfurter it wasquite different.

I think the other thing that wasextraordinary about him, he had no children, sohis law clerks really were part of his family andthere was a very close relationship between us andthe Justice. He and I were very interested inclassical music and it wouldn't be unusual for himat eleven o'clock at night to call me up and say, "Ijust heard this concert by X, Y or Z. What do youthink about this person?" That was not atypical.So, Frankfurter was a complex person who was, Isometimes say, alternatively exasperating andexhilarating to work for.

Moderator: Barrett Prettyman, you also later had thatopportunity, but your longest clerkship, and yourinitial clerkship, was with Robert Jackson. As youarrived in that summer of 1953, who was RobertJackson as a Justice of the Court?

2004]

ST. JOHNS LAW REVIEW

Prettyman:

Moderator:

Prettyman:

Sander:

Prettyman:

Sander:

Prettyman:

Moderator:

Well, before I arrived, as a member of the LegalForum at Virginia Law School, I had had himdown to speak and spent a delightful weekendwith him down there, where I really got to knowhim even though it was a very abbreviated time.And then when I went up for my interview withhim in Washington, we had a very wonderful longchat, less about the law than just about theory andlife and whatever. And at the end of the interviewhe said, "You know we are allowed two clerks, butI don't want two clerks. I only want one clerk andif you would be willing to be my only clerk, well,you can have the job." Immediately, of course, Iaccepted, so that was the end of that. I had notbeen with an intermediate appellate judge andtherefore was absolutely delighted to be able to godirectly from law school into this place on the Hill.

So you had no training and twice the responsibility

of Frank Sander?

You got it.

But not twice the pay.

No. What was it, $5,400 in those days?

$6,000.

Well, then you got more than I did.

That's where that first clerkship had a benefit.

Now, let's talk about the school segregationcases. The five cases came to the Court before yougentlemen arrived. The Court actually took awhile to docket them and put them all in motion,but they had been argued to the Court inDecember of 1952. And then in June of 1953, veryshortly before you arrived, the Court ordered themreargued, calling for additional briefing on a long

[Vol.78:515

LAW CLERKS RECALL BROWN

list of topics that the Court asked the parties toresearch and write for the Court's benefit. Sosegregation in many forms had been percolatingtowards the Court, and in the graduate school andlaw school context it had been dealt with by theCourt, and the Court was in the midst of grapplingwith it, as you arrived, in the elementary andsecondary context.

Again let's begin with Earl Pollock. Howdid you get oriented to what we today call Brownv. Board of Education as a pending matter?

Pollock: I became involved directly with the case afterChief Justice Warren arrived in September.

Moderator: Let's stay earlier. Was there any contact duringthe Vinson phase?

Pollock: There was none that summer, except that amongthe clerks who were already there, there wastremendous excitement and interest in thepending segregation cases, and a lot of discussionabout it. The cases were, of course, recognized asconstituting the most important issue before theCourt at that time.

Moderator: Was there discussion with your departingpredecessors, for any of you, about this pendingcase and what was happening in the Court thatyou were now arriving in the middle of?

Pollock: If there was, I've managed to forget after fiftyyears. One of my great regrets is that I never kepta diary or a journal, which would have been veryuseful trying to answer questions like that today.

Moderator: Jack, how about you?

Fassett: I did have a discussion with the one former Termclerk who was still there when I arrived on June

2004]

ST. JOHN'S LAW REVIEW

20, 1953. The order for the reargument, thequestions that you talked about, came down onJune 8th and then immediately thereafter theCourt had two special sessions in the Rosenbergcase, involving the stay of the execution of theRosenbergs. It had been very acrimonious, and itwas just over on June 1 9th. I arrived on the nextday and the one law clerk still left from the priorTerm had an assignment from Justice Reed to do aproject having to do with a possible dissent in thesegregation cases, and so I did talk to him aboutthat.

I saw the Justice for about a half an hourbefore he took off from there. He was going off toDuke Medical Center, where he had his annualexam, and then to Maysville, Kentucky where hehad a couple of farms. And he said he'd be seeingme and we'd talk at the end of August or he'd seeme when he came back through, going off to aplace he'd rented up in New York State, in OysterBay, New York, for the month of August. But wedidn't have too much time to talk and all he'd saidto me was, "Are you up to date on the schoolsegregation cases?" He had not mentioned thesubject at all at the time I was hired. I said, "I'veheard of them, but I don't know much about them."I also didn't know much about him. When I hadthe lightning strike of getting the clerkship, Ididn't know much about Justice Reed and was ableto find very little.

But he said to me as he was leaving, "Well,on these shelves over there are all the records andbriefs in the cases. In your spare time, get yourselfup to date on them." And so that was the totaltalk with him about it, and then the clerk who wasthere filled me in on the job he was doing. But hedidn't have too much handle on what hadhappened at the Court with respect to thembecause they were being pretty secretive with most

[Vol.78:515

LAW CLERKS RECALL BROWN

of the law clerks about what was going on. Andthen I started getting these letters from JusticeReed, first from Durham, then from Maysville,then from Oyster Bay, sending me these projects-And when he came back through, we had a wholelong conversation about them, but that's gettingahead of the story.

Moderator: Right. Frank, how about you?

Sander: Well, I, like Earl, I'm not quite sure about this,about whether I had any conversations with one ofour predecessors, Alex Bickel. His is an importantname in the Brown history because one of theunusual things about Frankfurter is that he didn'tuse his clerks for routine work, like the certioraripetitions, whether the Supreme Court ought totake a case-he handled those himself, but hewould assign major tasks to people that reallyrequired full concentration for an extended period.And related to the questions for the rehearing, hehad asked his prior clerk, Alex Bickel, to make aninvestigation of the legislative history of the 14th

Amendment to see what light he'd shed ondesegregation. In the end, it turned out not much.But being a professor and scholar, Frankfurterwanted to leave no stone unturned. So this was inprocess and I don't know whether I talked withAlex Bickel about this, but we were certainly veryaware of that event.

Moderator: From Jack's description of his predecessor writingor doing research for Reed on an expected dissent,it sounds like the climate you're arriving in is onewhere school segregation is losing-it's going to bestruck down?

Fassett: I had no indication of that. When I finally had hadmy long conversation with Justice Reed when hecame through at the end of July on his way fromMaysville to Oyster Bay, I asked him, "Well, is the

20041

ST. JOHN'S LAW REVIEW

Moderator:

Prettyman:

Court going to decide these cases now?" And hesaid, "They are going to decide them. They've gotthe votes." But the indication was that thedecision was going to be to strike down Plessy v.Ferguson. And he and some others were going tobe in a minority. But he didn't identify who theywere going to be. But we had a big argumentabout it and that's the stage where I learned thatlong word "krytocracy," because I said, "Well aren'tthey going to be reaching the right decision? Ithink that sounds like--" and he said to me, "Areyou one of those people who believes inkrytocracy?" I said, "What does that mean?" Andhe referred me to a book or paper that he hadthere and showed me that krytocracy means"government by judges." And it was the beginningof a very long dialogue that we had over a period ofseveral months, where we had a very interestingtime as he thought over the process of whether hewas going to dissent or not, and krytocracy wasforemost in his mind, that he didn't quite thinkthat this was a role that the judges ought to play.

Barrett, as you were arriving and replacing twoclerks all by your lonesome, did you get anytransition briefing or any sense of wheresegregation stood with the Court?

I don't recall any discussions with Bill Rehnquistor Don Cronson about the segregation cases. And Iwas not aware of their now-famous memos thatthey wrote. But the only discussions I had withthe Justice gave me the impression that the Courtwas in somewhat of a disarray. But it was notclear to me, and I'm not sure it was clear to him,where the votes actually lay because the Justices,at their one conference, had decided not to take avote.

Unbeknownst to me, not that longthereafter-in fact, the day before the second

528 [Vol.78:515

LAW CLERKS RECALL BROWN

argument in Brown-he began writing aconcurring opinion because he assumed thatregardless of how the vote went, the Justiceseither would all be writing or many of them would,that there would be dissents and concurrences andso forth, so he was trying to get his thoughts downon paper. I didn't see that draft of a concurringopinion until four drafts later when he finally gaveit to me.

Moderator: We will catch up to that point of the story. Doesanyone deserve credit for the decision to requestadditional briefing and the postponement ofdeciding it at the end of that 1952 Term? Was thatFrankfurter and Bickel? Was that Vinson? Anylight to shed on that?

Sander: I don't know definitely, but I would suspect bothfrom the nature of the inquiry and what I've readthat it was largely Frankfurter, but it was notBickel. It was Frankfurter commissioning Bickelto do this and then persuading the Court to goalong. One of his main concerns was the wholetheme of judicial restraint, the issue that Jackreferred to, so I think putting the thing off becauseit was a difficult decision and getting moreresearch seems very much in character for him.

Fassett: I think it was- Except for a couple of the Justiceswho were anxious to go ahead and have the vote,most of them felt that it would be desirable to havemore time. I think Justice Clark and JusticeReed- I think, Justice Jackson as well, concurredin that. So what they needed was a device to do itand Justice Frankfurter provided the device bycoming up-he drafted these five questions whichthey issued as their order.

The other thing they did, which issignificant in that same June 8th period, was toinvite the new administration, Ike- President

2004]

ST. JOHN'S LAW REVIEW

Eisenhower's administration had just begun andthey invited, almost directed, the newadministration to file a brief with respect to it andtake a position on it. In this new book that justcame out, Black, White and Brown, issued thisweek, Herb Brownell, who was the AttorneyGeneral at the time, has a very interesting andilluminating piece telling about what happened atthe White House when they were advised thatthey should participate in this. It required theadministration to take a position and HerbBrownell was very important in convincing thePresident that they should take a position andthat they should oppose school segregation.

Moderator: That's a nice segue. Much of our discussionobviously is going to be legal in nature-theCourt's work, of course, is legal in nature-but it isconnected to fundamental social realities andpolitics.

Where were your Justices, as men, onsegregation, as you understood them at the startsof your clerkships?

Pollock: I understood, not directly from Vinson, that he wasopposed to overruling Plessy v. Ferguson. Notbecause he was a racist, but rather because of hisbelief that a decision that had lasted that longshould not be overturned by the Supreme Court,that as a matter of stare decisis it should be donethrough action by Congress or possiblyconstitutional amendment. I think it wasessentially a matter of judicial process thatmotivated him to take that view, which in a waywas something that also, of course, concerned bothFrankfurter and Jackson, although theyultimately took quite a different view.

Right. Frank?

[Vol.78:515

Moderator:

LAW CLERKS RECALL BROWN

Sander:

Pollock:

Prettyman:

Well I just wanted to add this footnote. I thinkthat is exactly right, what Earl says, because Iremember coming to work on September 8th and inthe elevator the operator said, "Do you know whatjust happened?" And I said, "No." He said thatChief Justice Vinson died. And shortly thereafterFrankfurter got off his now-famous line: that's thefirst time he believed in God. So, this rathersuggests that Vinson was clearly in favor ofupholding Plessy v. Ferguson and that Frankfurterthought this was a whole new era that was beingushered in. I think he said this before the otherside of the coin came in, i.e., the appointment ofEarl Warren, which was the other really importantthing.

Frank, I think that that statement ofFrankfurter's was made at Vinson's memorialservice to Phil Elman, another distinguished clerkof Frankfurter's, and I think it was not directedsolely at the matter of how Vinson was expected tovote, but rather Frankfurter's belief that at longlast there could be a Chief Justice who was capableof welding the different factions together-something that, unfortunately, Vinson had notbeen able to do. It was very much of a fracturedCourt under Vinson, and I think Frankfurter sawthe Warren appointment as a chance to overcomethat.

A number of people have written, and Earl hasjust stated, the view that Jackson seemedoriginally to be in favor of upholding Plessy, notstriking down segregation, and then came aroundand changed his view. I think I disagree withthat. I don't think that's what happened and Ithink that his unpublished concurring opiniondemonstrates it. At that first conferenceeverybody was expressing his opinion and anumber of Justices, including Douglas, wrote downthat Jackson appeared to be in that school.

2004]

ST. JOHN'S LAWREVIEW

Actually, Jackson, being a very, very, verypractical person, recognized that schoolsegregation was going to be struck down and hewas willing to go along with that, but he was veryworried about all kinds of things. He was worriedabout not giving direction to the district courts asto how they were going to do this. He was worriedabout what legal ground the Court was going tobase this decision on. He was worried that theCourt was going to find fault with the schoolsystems, with district court judges, with the Southand so forth. And having expressed all theseconcerns, I think that writers today, and evenJustices at the conference, got the impression thathe was negative. And lo and behold, theconcurring opinion that he finally gave to me wasnegative in many respects, but only in thoserespects. His bottom line was that he was going togo along with the majority because he felt that theNegroes had made such an astonishing progress inthe years since the Civil War, the most astonishingprogress in history, that even if once there hadbeen any grounds for segregating and dividingthem based on race, that had long sincedisappeared, that they were now equal in everyrespect, and that therefore it was denial of bothdue process and equal protection to segregate themsolely on the basis of the color of their skin. That'show I read that.

Fassett: I do too, and Justice Reed and Justice Jacksonwere very close together on their thinking on this.

Prettyman: Well, except that Reed was going to dissent.

Fassett: He was going to write a dissent, but for the samereason that Justice Jackson referred to in hismemo in February where he used the term "aruthless use of judicial power." That was sort ofJustice Reed's feeling too-his krytocracy thoughtwas the same thing.

[Voi.78:515

LAW CLERKS RECALL BROWN

Moderator:

Pollock:

Justice Reed had been much in favor offairness for the Negro race. He had written thefamous Smith v. Allwright decision that did awaywith the southern white primaries. He hadwritten a couple of other decisions, but he just didnot think that the Supreme Court ought to bedoing this at the early stages. And so, in thatsense they were- Well, Justice Jackson wouldhave done a concurrence on that basis. Basically,Justice Reed was going to-he was looking formore time. In the conference, he said that Plessyprobably has gone by its day and is no longer goodlaw, but we need more time for things to occur. Hewas a great believer in time taking care of things.And he was worried about a whole bunch ofsubjects that he would talk to me about-"What'sgoing to happen to the black teachers in theschools if we outlaw segregation? They won't beable to teach anymore," that sort of thing. Wecollected more materials on subjects like that inthe early months while he was still thinking aboutthis.

Now let's introduce perhaps the legal protagonist,Earl Warren, because on that September 8, 1953,Fred Vinson goes home to his apartment, and hewatches-it wasn't called Monday Night Footballat the time, but he watches an exhibition game ontelevision and doesn't live to see the morning. Andthat vacancy is quickly filled on a recessappointment, without confirmation by the Senate.Eisenhower appoints Earl Warren and has him inplace for the Court to begin its Term at the start ofOctober. Earl Pollock is one of the law clerks whoI guess inherits a new Chief.

Well, I guess that would be one way to put it. Ithink the other two Vinson clerks and I were insomething of a state of insecurity because wedidn't know what our future was going to be. We

2004]

ST JOHN'S LAWREVIEW

Moderator:

Pollock:

Moderator:

Pollock:

were given temporary appointments by HugoBlack until it was determined whether we were tobe retained by Chief Justice Warren. Warren didask us to continue and later he asked me to staywith him for a second year as well.

Obviously we know him as Chief Justice Warren,but remind us, as he is being selected byEisenhower and as he is arriving, who was EarlWarren on the landscape of this country, and whatdid it mean for him to be the new Chief Justice puton the Court as it was about to start its Term, as itwas in the middle of the segregation cases?

Warren was a very sharp contrast to Fred Vinson.Both had extensive political backgrounds, butWarren, to use a much-hackneyed phrase, wasvery much a "people person." He would come intoa room and he would immediately dominate thescene. He was very impressive physically. He hada big smile. He greeted everyone very warmly,whether it was a messenger or secretary oranybody else-that was probably a vestige of hisdays as a very successful politician. He alsoseemed to exude a kind of integrity. And he was,by his nature, his very persona, a very persuasivegentleman. People wanted to agree with him. Hetended to put people at ease. He had a patience indealing with people. There was very littlethrowing his weight around. If anything, heordinarily showed a high degree of humility, whichmade it much easier for him to become veryfriendly with, and to be liked by, the AssociateJustices.

So he was a Republican governor of California, buthe wasn't a muscle-bound, weight-lifting type?[Laughter]

No, he wasn't, but he was not only a Republicangovernor, but, I recall, in the previous election for

[Vol.78:515

LAW CLERKS RECALL BROWN

Moderator:

Prettyman:

Fassett:

governor he had received the nomination by boththe Republican and Democratic parties, indicatingthe extent of his popularity in Californiaessentially on a non-partisan basis.

You mentioned, Frank, the Frankfurter quip-it issuch a good line that obviously he used it with PhilElman, yourself and a number of others-aboutVinson's death indicating the existence of a God.

Do you, Barrett and Jack, remember anyparticular Jackson or Reed reaction to this Vinson-replaced-by-Warren development and what thatwould mean in the context of these school cases?

Well, I don't remember much from Jackson.Frankfurter was in my office a lot because he wasin all of our offices a lot. And I do remember thathe was thrilled, there was no question-he didn'ttell me that quip, but I could tell that he wasthrilled.

One element-I think everything that Earlsaid about Warren is correct, but one element thatyou left out-is that he was a very tough man.Underneath that affability, he really expectedthings to be done in certain ways. When he sentout orders in the Court that something was to bechanged or whatever, he expected things to move.And I saw him several times where you could tellhe was upset and you didn't want to be at theforefront of that anger when he went that way.

He sure could stroke you though. I mean, after thedecision-I recounted the story last night abouthaving a private session with the Chief Justice-he called me into his office and put his feet up onhis desk and we just chatted, you know, talkedabout our high schools together. My Justice hadalready left. He was such a charming man, he

20041

ST. JOHN'S LAW REVIEW

could really be convincing, and I think that was avery important aspect.

As to the question of expectations rightafter Vinson died, and before Warren, the rumorsrunning around that courthouse on what wasgoing to happen were rife. I mean, Justice Reedtold me about some of the things. They didn'tknow who was going to be appointed. It wasn'tcertain for quite some time that Warren was goingto be appointed, but when the appointment wasmade Justice Reed was so happy. He thought thatwas a good appointment. So I think he had someof the same thoughts. He got a little unhappy withhis fellow Kentuckian, Fred Vinson, because of thedissension in the Court and the Chief not runningthe Court tightly enough. And Reed alwaysthought highly of Charles Evans Hughes, the firstChief Justice when he was on board, who reallyknew how to run the Court, and neither HarlanStone nor Vinson really did.

Moderator: Frank?

Sander: It's very hard in these fifty-year recollections toknow whether you're really recalling something oryou're-

Prettyman: -making it up? [Laughter]

Sander: Well not making it up, but attributing backwardssomething that you know happened as your ownreflection-I think I find that hard.

But I have a very distinct reaction, maybebecause I worked for Justice Frankfurter, that itwas as if a cloud had been lifted after Warren wasappointed. There was much more hope andpositive outlook, not necessarily how the case wasgoing to be decided, but that this stalemate hadbeen ameliorated and that good things were going

[Vol.78:515

LAW CLERKS RECALL BROWN

to come from Warren's appointment, partly justbecause of this very impressive personality ofWarren's. He obviously was pouring himself intothis job and regarded this as his primarychallenge.

Prettyman: You could argue that almost anybody new wouldhave created something of the same feeling, but itwas greatly enhanced by his personality.

Fassett: We had the two occurrences: Vinson died, andthen they had the state funeral at the NationalCathedral where all of us went by directive. And itwas quite an occurrence because we sat rightbehind our Justices, and in the next row satPresident Eisenhower and Mamie and the VicePresident and his wife and Harry Truman. Besswasn't there. And then the Justices went off as agroup. I think all of them went to Kentucky forthe funeral there and when they came back shortlyafter, the point was made and the atmosphere wasjust different.

Moderator: As we look back fifty years and recall thesepowerful events, I am certain that I wasn't there,but it is a pleasure to be here. We'll take a shortbreak now and resume again in a few minutes.Thank you.

Welcome back to the Robert H. JacksonCenter. I'm John Barrett, and we are gatheredhere on the fiftieth anniversary of Brown v. Boardof Education with four lawyers who were lawclerks during the Supreme Court's work in the1953-54 Term of the Court, producing the Browndecision. We're with Jack Fassett, who was lawclerk to Justice Stanley Reed; Earl Pollock, whowas law clerk to Chief Justice Earl Warren; Frank

2004]

ST. JOHN'S LAW REVIEW

Sander, who was law clerk to Justice FelixFrankfurter; and Barrett Prettyman, who was lawclerk to Justice Robert Jackson.

Now, the fall of 1953 brought the extensiveadditional briefing that the Court had requestedand the preparation, and then in December itbrought the second round of oral argument, wherethese five school segregation cases were rearguedto the Court. Were you there for the oralarguments and what do you recall of that forensicmoment in this piece of history?

Pollock: I was in the courtroom. The Chief Justiceexpected any clerk who had been assigned to workon a particular case to be present during theargument. Although I don't recall all the dramaticmoments of the argument as much as I would like,I do recall very clearly the argument thatThurgood Marshall made. It was very effective. Itwas very emotional, not by any means confined toarguments about stare decisis or other technicallegal issues, but pointing out, for example, howwhite and black children who played together, whospent time together, were then suddenly separatedalong two different tracks once they began theirpublic school education. It was a very effectiveargument.

I don't recall much of Davis's argument-

Moderator: That's John W. Davis?

Pollock: -John W. Davis, who was then regarded as reallythe dean of the American bar, probably a man whoat that time had argued more Supreme Courtcases than anybody else in the country. It was aneloquent argument. But it was, of course, limitedby the fact that his position had to rely to a muchgreater extent than Marshall's on technical legalarguments as to why the Court should defer to the

[Vol.78:515

LAW CLERKS RECALL BROWN

Prettyman:

Pollock:

doctrine of stare decisis and not undertake tooverrule Plessy v. Ferguson after all those years.

Well, yes, I heard both of those arguments too. Idon't think I heard all of the arguments that weregiven because it went on over a couple of days, butI do remember those well, and I would add to whatEarl just said about John W. Davis, who hadincidentally been a presidential candidate at onepoint: he relied heavily on states' rights inaddition to stare decisis. And his theme was-"You have even said in your opinions, SupremeCourt, that education is a matter for the states.Educating children is not some big federal thing,it's states' rights, it's what the state does, and nowall of a sudden you're trying to take away from thestate this right to decide where children go toschool. Why not leave the matter with thestates?"-which I thought was really very clever,because that appeal did invoke something which anumber of the Justices actually believed in.

I must say that in my own mind, I thoughtthe die was cast in these cases when they agreed tohear them. It seemed inconceivable to me that, aslate as 1954, a majority of the Supreme Courtwould say that it is still valid under the law toseparate children solely on the basis of race whenthey go to school. So while these oral argumentsare always important and while these were verygood arguments, I'm not sure they dramaticallyaffected in any way the result in the cases.

I agree with Barrett on that. It frequently isthought that it was the compelling argument ofThurgood Marshall that caused the Court to decidethe case as it did. I think that is quite anoverstatement. I agree with Barrett that theargument did not have a substantial effect onchanging anyone's mind.

2004]

ST. JOHN'S LAW REVIEW

Moderator: Not even towards the ultimate unanimity of theCourt?

Pollock: I doubt that. I doubt that. I think that manySupreme Court arguments are really moredesigned to avoid losing than to achieve winning.And I doubt very much whether it had asubstantial effect on the ultimate outcome.

Fassett: I agree entirely. I don't think the oral arguments,which spanned the three days of December 7, 8and 9 of that Term- While it was interesting andwhile it was quite a public drama, I don't think itaffected the vote one iota.

The interesting things that had happenedbefore then were that on November 1, they filed allthese briefs with the answers to the five questionsfrom the June 8th order at the end of the priorTerm. And on November 1, right after that,Justice Frankfurter circulated the longmemorandum that Alex Bickel had written on thehistory of the 14th Amendment. Those things werewhat the Justices had studied and though theyasked some questions of some of the arguers withrespect to that, nobody changed their mind as aresult of it.

Another thing that happened in betweenhere that is-very interesting, that is seldommentioned-on December 1- We rememberbecause it was quite a big day in the life of weyoung law clerks-President Eisenhower and Mrs.Eisenhower reinstated the procedure of a WhiteHouse reception for the Judiciary, inviting theJustices, and of all things they sent engravedinvitations to each of us, I guess, and my wife.And we had to rent white ties and tails and wentoff and got to shake the hands of the President andMamie and got to talk with them, and HerbBrownell was there, the Attorney General, and it

[Vol.78:515

LAW CLERKS RECALL BROWN

was quite an occasion. But the timing is veryinteresting: December 1. The argument wasscheduled to start on December 7, and there aresome stories that go on about the Chief Justicehaving been taken aside and having had somewords said to him during that. It didn't affect theoutcome obviously.

But as to the oral arguments themselves,like Barrett I was very busy working on othercases, doing a draft of another opinion for JusticeReed, so I couldn't go in there and sit there all day,and the Justice hadn't ask me to. So I went in andout, but it was certain I wanted to be there. Iheard part of Thurgood Marshall and part ofSpotswood Robinson. We had a special little placewhere the clerks and secretaries could go in andsee and go in and out. Anybody else you had tocome in through the main way in the court and itwas a real problem to get in for something as indemand as that.

I particularly wanted to hear John W.Davis and I did, because, as I concluded law schoolat Yale, one of the firms that I interviewed withwas his. They invited me down to New York andwhen they heard I had been recommended to go toJustice Reed, the interviewers ushered me intoJohn W. Davis's office. I didn't realize what wasgoing on at the time, but he explained to me howhe knew Justice Reed and what a fine gentlemanhe was and whatnot and hoped I would get it. Andthere he turned up-he was way ahead of me onthat one.

Pollock: Think he was doing a little lobbying?

Fassett: It happens, you know.

Moderator: Now the Court's procedure-and it's important toremember that the Court is not only dealing with

20041

ST. JOHN'S LAW REVIEW

Brown v. Board of Education during this or anyTerm-after hearing oral argument is for theJustices alone to meet in conference to discuss andvote and then assign opinion-writingresponsibilities. And so after that oral argumentover those three days, the Court has a conferenceand the Justices emerge and something is in theprocess of having been decided or being done withthe school segregation cases.

Frank, did you have any understanding ofthe conference and its result?

Sander: It's one of these questions that I know the answerto now but didn't then, so I don't want to recreatehistory.

Fassett: Any question is like that-

Sander: I guess I want to say we are getting a little falsepicture of the involvement of the law clerks. Thethree gentlemen that are sharing the platformwith me, law clerks, were exceptions. The generalrule of the Supreme Court was that law clerkswould have no role in this decision because eventhen, the fear of leakage would be so serious. Sothere were some violations of that by someJustices, including my own, but- Not that therewas a report of what happened at the conference,which often Justices discussed with their lawclerks afterwards, but not in this case.

Moderator: Was it true for the other three of you that therewas an information blackout about these casescoming out of that conference, or did you come tounderstand where the Court was heading?

Fassett: It was common knowledge that this was very closeto the vest and only the people directly involvedshould have anything to do with it. I didn't knowBarrett was directly involved. We never discussed

[Vol.78:515

LAW CLERKS RECALL BROWN

it at the time. I didn't know who was working onit for the Chief Justice. But Justice Reed hadfingered me to be the one working with him and I'dbeen working with him since the summer on whathe was thinking about doing. But the secrecy wasvery strict and most of the law clerks had no ideawhat was going on. And the December 12conference, when they came back, I assumed-They always had the conferences on Saturdayafternoons in those days. When they came back,he'd open his docket book and tell us what hadoccurred. But nothing with respect to thesegregation cases. They had no vote. Theydecided at that occasion that they would not havea vote. They'd continue to talk about it until theygot to a stage where there could be a vote. And Ithink one reason for that is that, as youmentioned, Chief Justice Warren was an interimappointment. He had not yet been confirmed bythe Senate. And he wasn't confirmed by theSenate until March 1. So the first vote, I'm firmlyconvinced-he said in his memoirs that ithappened in February, but I'm convinced it didn'thappen until the first week of March.

Sander: I think it was more than that. I think Warren, asa politician, recognized that it was a bad thing toget people to commit themselves-

Fassett: I agree with that.

Prettyman: -before they saw anything on paper.

Pollock: It has to be understood how unusual it was not totake a vote, because it was very customary after anargument that the Justices convened and took atleast an initial vote. This was not done in thatcase, I think, for the very reason that Frank haspointed out. The Chief Justice, I think, recognized,and I'm sure other Justices did too, that it wouldbe inadvisable to take a vote that might freeze

2004]

ST. JOHN'S LAWREVIEW

Moderator:

Pollock:

Sander:

Pollock:

Moderator:

Prettyman:

certain Justices into a fixed position before furtherwork and discussion could take place in order toarrive, one hoped, at unanimity-not onlyunanimity, but unanimity without dissents orconcurrences.

Did you observe your boss, the Chief Justice,during this period, informally working on hiscolleagues toward those objectives?

Yes, but I was not present at those sessions.

Meaning one-on-one?

One-on-one. I wasn't present at those, but I wasaware of the fact that he was very patientlyattempting to discuss the matter on an individualbasis with each other Justice, whether inchambers, or at lunch, or taking a walk around theSupreme Court building. I knew that this wasgoing on.

Barrett, from your perspective, what washappening? What was Jackson up to and whatwas happening in Jackson's thinking in this post-conference period?

He did not tell me anything about votes after thatconference. I did get the impression that hethought that the majority clearly was going tostrike down segregation.

But, don't forget, it was early in the nextmonth when he first gave me this draft, which hehad gone through for many months, of what hethought was going to be a concurring opinion.And, it was right after that, when I wrote a memoback and I said for the- To show you how naive Iwas, I wrote that in my office on my typewriter. Idid not give it to Elsie Douglas, his secretary, fortyping as I normally did. I gave it to him myself

[Vol.78:515

LAW CLERKS RECALL BROWN

and it never occurred to me that anybody else inthe entire world would ever see that memo, whichof course has now been published in books andeverything else. But I was quite critical of hisdraft. I thought it was very defensive. And Ithought it said some things which would givegrounds particularly to those in the South whowere combating any decision striking downsegregation, and it was soon after that-I hope notbecause of that, but it was soon after that-that hehad a heart attack.

And then he was in the hospital when-I'mjumping ahead now a little, but he was in thehospital when the Chief Justice brought his firstdraft of Brown around.

Moderator: So Jackson is drafting a concurrence before he'sever seen a proposed approach by Warren?

Prettyman: Exactly, and before they'd ever taken a finalformal vote.

Moderator: What was Frankfurter doing during this post-argument phase?

Sander: Well again, I now know that he had some writtenthoughts of some kind of a concurring opinion.There were a lot of discussions with JusticeJackson about possibly writing a joint concurrence.We had nothing to do with that in our office. Ithink the first formal involvement we had wasmuch later when an opinion had been drawn up bythe Chief Justice that was being taken around.And Frankfurter, I think in violation of theagreement, one afternoon came in and showed it tothe two of us law clerks and said, "Do you haveany quick reaction to this?" and retrieved it veryquickly. That was the limit of it.

2004] 545

ST. JOHN'S LAW REVIEW

Moderator: What was Reed up to? The previous summer hehad been thinking, researching, and assigningyour predecessor and you to gather information inanticipation of being a dissenter.

Fassett: Yes. After he arrived back on Labor Day, we hadthese extended discussions about it and heassigned me a number of additional footnotes toprepare on various subjects such as: "What hasbeen the position of the United Nations and itsDeclaration of Rights with the respect tosegregation over the years?" "What has been theposition of the Catholic Church?" was another oneof them. One of them had to do with the role of theNAACP, had it ever taken the position until veryrecently that segregation was-

Prettyman: Jack, didn't you say that one of them had to dowith the crime statistics?

Fassett: He asked me to get- That one came in one of theletters. That was before he came back. He wantedcrime statistics compared from various cities andhe had identified the cities, one in the North andone in the South, cities where things weresegregated and non-segregated. And I had no ideahow to get these things. But Helen Gaylord, hislong time secretary, bailed me out a little bit, andshe got in touch with the FBI and sent me up thereand they tried to help me. What I got was not tooconclusive.

But I had all of these footnotes and then,when Alex Bickel's memo came around and thebriefs came around in the first of November, heasked me to write three more footnotes. One aboutwhat the role of the States was, what they thoughtabout segregation in schools when they ratified the1 4 th Amendment. One on what the Congress thatproposed it had in mind about it. And he alsoasked me to do one about segregation in the Armed

[Vol.78:515

LAW CLERKS RECALL BROWN

Forces and to show the fact that in an area wherethe Executive branch of the government hadcontrol of the situation, nothing was done until anExecutive Order was issued by Harry Trumanfairly recently.

Moderator: Jack, let me stay with you. In early 1954, Reedshows you some drafting he had done of adissenting position. As far as I'm aware, that's theonly Justice writing of a proposed dissent in theBrown cases.

Fassett: What happened, you see, was that we went up untilthe time of the oral arguments, and after that heasked me for no other things. I had manyconversations with him about what he was going todo and I argued with him. I said, "You gotta look atthis from the point of view of the role of our countryin the world." And he said to me, "Boy, have I beenhearing a lot about that." He'd been having lunchwith Burton and Minton and they had been talkingabout it. They were both committed to overrulingPlessy and the Chief Justice, I know, had beenmeeting with them. But none of these meetingsinvolved any law clerks.

The one supposed occurrence of Warren andReed and a law clerk that appears in Dick Kluger'sbook Simple Justice I'm convinced is erroneous.And the fellow who is identified there as doing it,has denied that he said so. So it makes it-

Moderator: So, what about Reed's writing? His draft of hisdissent-

Fassett: So what happened was that we'd done nothing ona dissent after the oral arguments, until the Courtwent into recess on February 9, 1954. Out of ablue sky he called me in there and he said, "Jack,take a look at this and tell me what you think,"with sort of a twinkle in his eye. Stanley Reed

2004] 547

ST. JOHN'S LAW REVIEW

could be a very pleasant, kindly man. And we hadbeen having all of these extended discussions andso I took it out and- We law clerks, we each hadour own big Royal typewriters and typed all of ourown stuff in those days. So I made a triple-spacedcopy of what he had written. And then I wentthrough and made comments on each of the things,as I'm sure each of you did on occasion with things,and I went back in and talked to him about it andhis reaction was sort of an ambivalent sort ofthing. I'm sure-

Pollock: What was the main pitch of the dissent?

Fassett: The main pitch was that the Equal ProtectionClause issue had been settled. History hadsettled-Plessy and the history of the 14th

Amendment. So the only question open waswhether under the Due Process Clause it should beoverruled. And he went on at great length, butnever came to a conclusion in the thing. And itwas yellow pages.

Now, I'm convinced he'd written it theformer summer while he'd been off in Oyster Bayand was thinking about it and that he was justsort of teasing me at that stage. But I took it backand I kept his whole file of these footnotes andwhatnot and so-

Prettyman: At the time that you went back to him, is it yourview that he had changed his mind?

Fassett: It was my view that he had already told the ChiefJustice that he would join an opinion if it was anopinion that he could accept. And I think that issort of confirmed by Frankfurter's letter to him ofMay 19-right after it came down, Frankfurtercongratulated him on having joined it and the-

I saw that as pretty late.

[Vol.78:515

Sander:

LAW CLERKS RECALL BROWN

Pollock: I don't think Reed made that clear to the ChiefJustice until almost the end of April because-

Moderator: Yes, tell us why, because unanimity is part of theaccomplishment here, so it's important to try anddate it as best we can.

Pollock: What happened was that in the week of April 26,Chief Justice Warren took a pen to hand and ayellow tablet and scratched out what he later toldme he thought was an outline of an opinion. Andit's available now on the Internet, I think. He hadit typed up and on April 29, which was aThursday, he called me in to his office. He gaveme this document which was headed"Memorandum." He called it an outline, said thathe wanted me to revise and expand it into a fullopinion. He said he wanted it to be short. Hewanted it to be readable. He wanted it to be non-legalistic. He wanted it to be something that couldbe understood by the layman and, he said,"Something that even could be published on thefront page of a newspaper." And he also said speedwas of the essence. Of course, he told me that itwas unanimous. And I understood from what hewas telling me that he had just achieved theagreement for unanimity-

Moderator: In late April?

Pollock: Yes, in late April. And he also cautioned me aboutthe need for tight security on it, and that therewas not even to be any discussion with anybodyoutside the Chief Justice's chambers.

Prettyman: Earl, may I ask you a question? I have seen, justrecently, the draft-Nina Totenberg showed it tome when she had her [National Public Radio]program. And from a quick look at it, it looked like

2004]

ST. JOHN'S LAW REVIEW

pretty much the final opinion, yet it was in hishandwriting.

Pollock: The longhand is something like nine pages-inlonghand. And he clearly, in this memorandum,established the framework of the opinion. Inaddition, the memorandum has at least two of themost stirring sentences that wound up in the finalversion, including the "hearts and minds" sentenceand "we cannot turn the clock back." But probablyclose to half of the draft never wound up in thefinal opinion.

Moderator: And at that point it goes to you as an assignmentto-

Pollock: That's right.

Moderator: -flesh it out.

Pollock: That's right.

Moderator: Okay.

Pollock: Do you want me to continue on that?

Moderator: This is where the action is. What did you donext?-this is what it's all about.

Pollock: Well, with the hubris of youth-

Prettyman: -which we had enough of in those days.[Laughter]

Pollock: I started work on it the very next day and workedabout 24 straight hours, and that brought me intothe weekend. This was mostly in longhandbecause I did not have a typewriter at home. Ibrought my longhand revision into the officeMonday morning, had it typed, and presented it tothe Chief Justice with a cover memo, which is also

[Vol.78:515

LAW CLERKS RECALL BROWN

now on the Internet someplace, saying that I'vetried to carry out your instructions, and that thisdraft included all five cases, but I stronglyrecommended that the District of Columbia case bestripped out because we could not rely on theEqual Protection Clause in that case.

Moderator: That applies only to state governments.

Pollock: That's right. His draft had made references toboth Due Process and Equal Protection, and in facteven also referred to "constitutional privileges." Ifelt very strongly that the State cases should betightly limited to the Equal Protection Clause.Among other reasons, if we got into Due Process,then we would have to confront the question ofdoes the Supreme Court really want to rely onsubstantive due process which involves all kinds ofthorny issues. I thought it should be limited to theEqual Protection Clause.

He agreed that that's the way it should berestructured and that there should be a shortopinion on the D.C. case, which was assigned tothe other two clerks.

The next few days, there were furtherchanges in the May 3 revision. Also, footnoteswere added that week-

Prettyman: That's where the trouble began. [Laughter]

Pollock: .- and then on Friday of that week, that was May7th, the Chief decided that the drafts of the twoopinions were now ready to be circulated to theother Justices. And he prepared a cover memo,which in large measure repeated what he had toldme on April 29. The cover memo said that-"Hereare these drafts," he said, "for discussion." Hesaid, "As you'll see, the opinion drafts are short,non-legalistic." And he said that they should also,

2004]

ST. JOHN'S LAW REVIEW

Moderator:

Pollock:

Moderator:

Pollock:

above all, be "non-accusatory," as he was alreadythinking in terms of acceptability in the South.

That Saturday, May 8, he took copies anddelivered one to each of the Justices who waspresent in the Court at that time. There were twoJustices who were not present, Minton and Black,and another clerk and I-

Well, and Jackson, who was in the hospital.

Oh that's right-and he delivered copiespersonally to Jackson, quite right.

We delivered Minton's copy to him at hisapartment, which was I think located just acrossthe street from the Supreme Court. And then wewent out to Alexandria and delivered Black's copyto him while he was in his tennis clothes on thetennis court. And he stopped the game and-

Started reading?

I don't think he read it right then and there.

Unidentified: Tennis first.

Moderator:

Sander:

Moderator:

Sander:

Saturday, May 8. Now for all the securitystrictures, it's probably shortly thereafter thatFrankfurter quickly shares a peek with you andyour co-clerk, Jim Vorenberg.

I think so. I can't place the date but that would fitin with this picture, yes.

What was Frankfurter's reaction to the long-awaited draft by Chief Justice Warren?

Well, my best recollection is that he was verypleased because he thought it should beunanimous. I think he'd come around to that. He

[Vol.78:515

LAW CLERKS RECALL BROWN

Moderator:

Prettyman:

Sander:

Prettyman:

Pollock:

had some serious concerns about the role of thejudiciary that we've talked about and judicialrestraint that he is a great proponent of, and so Ithink he had these concerns. But he saw thismovement toward unanimity and clearly felt thatwas the most important thing. So he was ready tojump on the bandwagon.

Now, Barrett, as we've said, Jackson was in thehospital, and Earl just mentioned that ChiefJustice Warren personally delivered the draft toJackson. Pick it up there and tell us whathappened.

Well, Frank, this is one of those things that Iactually remember.

At least you say so.

I do remember quite well. I happened to be withJackson in his hospital room when Earl Warrencame by and he made it clear very quickly what hewas there for. I excused myself and went down thehall. I waited until a nurse came down and saidthat the Chief Justice had left. I went back.Jackson by then had read the opinion and didn'tsay anything about it; he handed me a copy andsaid, "Go read it." I went down the hall again, Iread it and came back, and we talked about it.And it was very obvious that he-I guess the bestword I can use is that he was relieved. He wasvery relieved that something had been presentedthat he could go along with. Even though, I haveto emphasize, there were parts in it that hediffered with Warren on. For example, Warrensaid that the history of the 14 th Amendment wasinconclusive about what the Framers felt aboutsegregation and segregated schools.

And that of course was based on the Bickel memo.

20041

Prettyman:

Sander:

Prettyman:

ST. JOHN'S LAW REVIEW

The Bickel memo, that's right.

[Vol.78:515

Jackson thought it was quite clear whatthey thought, that they had, in fact, approvedsegregated schools, in the District of Columbia, forexample. But he didn't care what the Framersthought about this now-current problem. Itcouldn't have bothered him less. He thought thatyou had to interpret-as a very practical man,which he was-he thought you had to interpret theConstitution in terms of today's world, andtherefore he put that problem to one side. So hehad different approaches from what Warren had.But basically, he very much liked the idea that itwas simple, short, people could understand it, youcould easily agree. You tended to read those wordsand say, "Yes. Yes. When you separate people onthe basis of race, you are denigrating the blackrace."

Here's a speculative question for you. I have sortof always wondered whether Jackson's heartattack along with Warren's appointment was oneof the things that made possible a unanimousopinion. Do you think that his physical conditionhad something to do with his lowering hisacceptability point and going along with theopinion, or do you think this would have been thesame if he hadn't been ill?

It's a fair question, but I didn't see any signs thathe was not robust in mind. I think he wasgenuinely pleased. Now, he did make somesuggestions about changes, one or two of whichWarren-one in the Boling opinion, for example-that Warren accepted, but several of his suggestedchanges Warren did not want to accept becausethey related to segregation generally. And as youknow, Earl, Warren was absolutely adamant aboutrestricting this opinion to education. And he didnot want to intimate that segregation was going to

LAW CLERKS RECALL BROWN

fall in any other area, even though he knewperfectly well that it would. That was thepolitician in him and very wise, I might say. But,no, I think that Jackson- He was so pleased thatthere was no blame. He just liked it. He thoughtit was a master work, whether it was yours or his.So I don't think his heart attack played a part inthat.

Moderator: Jack?

Fassett: As I said before, when Reed told the Chief Justicethat he'd be going along, or when there was a clearunderstanding, it was of course all based on theopinion being something he could accept. ButJustice Reed had done nothing further on a dissentafter December. And they had a conference eventhough they didn't have the vote until, as I said,probably the first week in March, right afterWarren was confirmed. But they had a conferenceon January 16, having to do-looking forward tothe problem of a decree, how it would beimplemented. The Chief Justice, I think, myunderstanding is, had hopes to handle that all inthe original opinion and, of course, learned quicklythat he was not going to get a consensus on thatsubject. And that's when they decided that theywere going to have to have a further argument thefollowing Term. But Reed did nothing on thedissent after that. I'm sure, if he had not expresslysaid so, he impliedly said so, to the other Justices,that he would go along if it was an opinion thatwas acceptable. He was-still had the idea thatDue Process was better than Equal Protection as away of doing it because, like Jackson, he thoughtthe history on it, on the Equal Protection Clause,on the 14 th Amendment, was fairly clear. He didnot agree with Alex Bickel's conclusion, that it wasinconclusive.

2004]

ST. JOHN'S LAW REVIEW

Moderator: Now, it moves very quickly, obviously-Warren isstarting to write in late April, we're now aroundMay 10 and it's only seven more days until theopinion is announced. There's tinkering,suggested language, some accepted-

Pollock: Comments came in from the other Justices. Therewere very few, and they were essentially stylistic.For example, and this relates exactly to whatBarrett was saying before about the way thatJackson was looking at the issue, Jackson added,with the Chiefs agreement, a sentence sayingblacks had progressed tremendously since the timeof Plessy v. Ferguson. And so that sentence wasadded.

Frankfurter made several changes,including one I regretted in one of the sentencesthat was in the Chiefs original memorandumabout the effect of segregation on the "hearts andminds" of black children because it put a mark ofinferiority on the blacks. And that point seemed tome very appropriate because it directly refuted thePlessy premise that if blacks saw a badge ofinferiority in segregation, it was just a matter oftheir own perception. Frankfurter asked theChief, and the Chief agreed, to change "a mark ofinferiority" to "generates a feeling of inferiority"and that's the way that came out.

Burton, I think, wanted a change from aphrase "some Southern states" to "some states."He also asked that we identify the case names ofthe four cases more specifically in one of thefootnotes.

Clark expressed concern about the fact thatone of the citations in the opinion was to an articleby "Clark." He was concerned that the readermight get the idea that Tom Clark was the authorof that article, and so to accommodate him (and in

[Vol.78:515

LAW CLERKS RECALL BROWN

Prettyman:

Pollock:

Prettyman:

Fassett:

Pollock:

Moderator:

Pollock:

complete violation of the strictures of the HarvardBluebook, which we always sought to follow), weput in the initials "K.B." in front of "Clark" so as toavoid any confusion as to whether Tom Clark wasthe author.

Do you remember this change in Bolling, the D.C.case, Earl? Jackson had suggested the addition ofthe sentence, "The equal protection of the laws is amore explicit safeguard of prohibited unfairnessthan due process of law and therefore we do notimply that the two are interchangeable phrases."And then Black came along and convinced Warrento put in the word "always." So therefore it read,"We do not imply that the two are alwaysinterchangeable." Jackson was very upset aboutthat.

Dick Flynn, one of my fellow clerks, after I hadsuggested the removal of the D.C. case from thestate cases, was assigned the Bolling opinion. So Ireally was not involved in that one.

The only reason I know this-I wrote acontemporaneous memo about that situation andthat's what it said.

My impression is that Justice Reed accepted thetwo opinions that they brought down on that daywithout the-

I don't know of any comments that he made. Iknow that Douglas sent in a note saying that hewouldn't change one word.

Hugo Black? From Alabama?

I don't recall any changes requested by Black.

He had signed on long ago.

2004]

Sander:

ST. JOHN'S LAWREVIEW

Fassett: Right. He wanted to decide it the whole way in theprior Term. Hugo Black was one of the mostardent supporters of overruling Plessy.

Pollock: So there were very few changes and so-

Moderator: Let's go to May 17.

Pollock: Well, before you get to May 17, we get to May 15,which was a conference-

Moderator: Right-Saturday.

Pollock: -and it was at that conference that all theJustices signed off, figuratively, on the draftswhich had been circulated and revised that week.And the Court then decided that we're going toannounce this two days from now, on Monday,May 17.

And that was exactly what happened,without any advance announcement of what theintention was-with a result that many of the lawclerks from other offices were not even presentwhen the case was delivered.

Sander: My recollection is that most law clerks were therebecause their bosses said, "Well, I think you oughtto be in court today" or something like whatFrankfurter said to us.

Fassett: Well, Justice Reed came through and said to me,"Jack, this is the day you had better be in court."And he also told Helen, his secretary. Butunfortunately my co-clerk had gone off to lunchsomewhere, so he missed it.

Pollock: There were a number of clerks who were off tolunch and who were very angry that they hadmissed the event.

[Vol.78:515

LAW CLERKS RECALL BROWN

Moderator:

Prettyman:

Fassett:

Pollock:

Fassett:

Pollock:

Moderator:

Now, Barrett, for the first time since the end ofMarch, your boss was back.

Yes. Elsie Douglas, his secretary, told me that hewas coming in for the opinion. So I knew it wascoming down, but that was, you know, not thatlong ahead of time. And he did, in fact, arrive.Came up the usual way-basement, in the backelevator-and word began to get around the Court.So that's several clerks'--that's the firstindication-

Ellis McKay, who was Clark's clerk, whose officewas right next door to Reed, had gone down to theprint shop, which was in the lower confines of theSupreme Court building-all the printing is donein this very confidential place down there-thatmorning, or just before noon, to get an opinion ofJustice Clark's that was going to be released thatday, or that he was working on, and he saw thesehuge piles of packages of opinions. They get themready to give to the press and whatnot as soon asthey are handed down, and they had no indicationof docket number, which always appeared onthem. And Ellis came back up and told his co-clerk, who then contacted me and said,"Something's going to happen." So there were-rumors traveled fast even though their securitywas very good. There weren't many people thatwere forewarned.

I think the security was remarkable, in that I don't

think there was any public leak.

No, I don't think so.

It was kept under wraps.

How did the lawyers come to be present? Wouldthey just be present every Monday?

2004] 559

ST. JOHN'S LAWREVIEW

Every opinion day at that stage.

Prettyman:

Pollock:

Prettyman:

Fassett:

Prettyman:

Pollock:

Prettyman:

Fassett:

Moderator:

Well now, wait a minute, I wanted to ask youabout this because I did not see ThurgoodMarshall. I was sitting a way-

I think the reports say that he was in New York.

No, other reports say that he was in thecourtroom.

He was in the courtroom, and he made much in hisoral history of watching Justice Reed.

A picture was taken of him right outside of thecourthouse, so I don't-I wondered if you knewwho called him. I mean, it sounds like somethingFrankfurter might have done.

Yes, but, Barrett, those were the days-long sincegone-when the Court would deliver its opinionsonly on Mondays. And so lawyers could show upevery Monday thinking, "Well, maybe this will bethe day." Today, opinions can be handed downalmost any day.

In the "Separate but Equal" George Stevens filmon this case, there's a scene where Marshall is inNew York, picks up the phone and says, "Oh, okay,I'll catch the midnight train" or something, and sohe got the call. I did not know whether that wasjust made up or-

Well, that's just the movies.

Does anyone recall John W. Davis being present?

Prettyman & Fassett (simultaneously): No, I don't think he was.

Moderator: Now the announcement itself can be a fairlymundane event-the announcement of a Supreme

Fassett:

[Vol.78:515

LAW CLERKS RECALL BROWN

Prettyman:

Pollock:

Fassett:

Prettyman:

Fassett:

Court opinion, the author reading an opinion- Itake it that this was not a mundane event?

Well, it was in one sense-

It was mundane until about two or three ratherunimportant opinions had been read. Then itbecame non-mundane.

You've got to recognize that May 17 was gettingvery close to the end of the Term. At that stage,the Terms usually adjourned June 1, so you onlyhad about two more opinion days. So thetenseness was rising because everybody thoughtsomething was going to happen, but there hadbeen, as far as I know, no leak even amongst thelaw clerks prior to just before noon time, whenword got out that Justice Jackson had come forthat occasion.

As a matter of fact, the first A.P. [wire] that wentout after Warren had begun reading indicated thatthe result could not be determined from what hewas reading. It was only when he came to a keyphrase, where he inserted a word that was not inthe opinion, the word "unanimously"- He hadsaid in an interview that he heard a reaction fromthe crowd at that word, and I remember a greatintake of breathe. I mean, the people presentwent, "ahhhhh," like that, because that was theone thing that they had not expected.

That was dramatic. Yes, that was what ThurgoodMarshall made much about. He came there, saidhe sat there and watched Justice Reed because heheard this rumor that Justice Reed was writing adissent. So he wanted to look him in the eye as itcame down. And as it came down, he nodded toJustice Reed and Reed nodded back and gave hima big smile and he realized that he had joined it.

2004]

ST. JOHN'S LAW REVIEW

That's one of the- I think that's a verytrue statement of what happened, contrary tosome of the histories that have come out. Quite afew of them have Justice Reed crying as it camedown, and other ones that have him receiving anultimatum from [to Frank Sander] your boss andthe Chief Justice just before it came down,"Stanley, you've got to join this now," citing a lawclerk being with Reed when he had thisconference. We know that the Chief Justice wouldnot have had somebody's law clerk, even somebodyworking on it, at that stage. So there have beensome myths and when some get issued they getpropagated.

Moderator: The decision, of course, unanimously held that"separate but equal" has no place in education andthen deferred the question of how segregation wasto be remedied. Were there misgivings amongyour bosses or among you clerks about thisapproach to the remedy question?

Sander: Well, I think in our chamber we then had somediscussion about this whole question aboutdeferring the enforcement and Frankfurter, Ithink, was one of the leaders for that move to putthat, to defer the enforcement question, and thencame up with this phrase "with all deliberatespeed" that finally appeared in the Brown II-

Moderator: -- one year later.

Was that necessary to accomplishunanimity?

Pollock: Absolutely. Absolutely. In fact, the idea that theCourt could have said, "We now order admission ofthe plaintiffs and the destruction of racialsegregation forthwith" I think is, essentially, toput it mildly, unrealistic.

[Vol. 78:515

LAW CLERKS RECALL BROWN

Sander: That's what the plaintiffs asked for.

Pollock: That's what the plaintiffs asked for, but plaintiffsin damage cases may ask for billions, but notexpect that they are going to get it.

There are two reasons why that reallywould not have worked. First of all, it would haveabsolutely inflamed the South, would havelengthened the time of resistance, and made itmuch longer than the long time that it took. Andsecond, there would have never been unanimity. Ithink there probably would have been a 5-4 or 6-3decision, maybe spanning a hundred or hundredand fifty pages of concurrences and dissents.There would have been no authoritative voice ofthe Supreme Court on this issue. Today it's veryeasy for some authors to look back and say, 'Well,you know, it would have been better if we had justdone it that way," but I just don't think it'srealistic.

Black subsequently told his law clerk thathe thinks the Court should have ordereddesegregation forthwith and Warren has expressedsome sympathy with that, but I think that isspeculation after the fact, and that the onlyrealistic way of achieving unanimity and avoidingdissents and concurrences was to follow the two-step procedure that the Court followed.

Moderator: Let's conclude by taking the fifty-year perspectivethat we have on this-as an accomplishment of theSupreme Court, but also as a social issue thatcontinues to bedevil the country. It definitelyremains on the list of unfinished projects.

What is the accomplishment and thesignificance of Brown v. Board of Education fromyour perspective as an insider and as a proxy for

2004]

ST. JOHN'S LAW REVIEW

one of the creators of what the Court accomplishedin the 1954 decision?

Sander: I think this is one that is really difficult, to castyourself back fifty years, because, I think, manypeople thought at the time: the problem is solved.Marshall was said to have said that in five yearsfrom now there won't be any more segregation left.Obviously that has not happened. I'm intrigued bythe fact that some authors recently have criticizedthe Court and said maybe it would have beenbetter if Plessy v. Ferguson had been forcefullyaffirmed-that is, expecting real equality, but stillseparation. I don't agree with that, but I thinkthat it's a symptom of the fact that, in terms ofintegration, we haven't gotten very far.

I think the real meaning of the case is interms of a statement of national ideals and policyand interpretation of the Constitution. It'sinteresting-in Massachusetts, as many of youknow, we've had this whole issue of gay marriageand the Supreme Judicial Court of Massachusettsthere used the Brown notion and quoted the senseof "separate is never equal." So I think-

Moderator: Coincidentally, its process of approving same-sexmarriage takes legal effect next month on May 17.

Sander: That's true. I think that's a coincidence. But, so Ithink, one has to separate what the case means inthe broader sense, which I think is terriblyimportant, and one couldn't imagine anotherresult, to its narrow effectuation, which, I think,has been disappointing. And I'm sort of surprisedthat these sophisticated scholars have made thisargument that perhaps with separate but equalthey would have achieved more.

Fassett: There has been an awful lot of criticism of whathas happened in the fifty years, that we haven't

[Vol.78:515

LAW CLERKS RECALL BROWN

Prettyman:

gone as far as we could and I'm sympathetic withthat. But I think when you get old, you startlooking at the big picture a little more. And thebig picture of Brown was not just public schooldesegregation. It was the cornerstone for dealingwith racial equality in all areas, and as a formercorporate executive, for example, what it meant inthe employment patterns of companies. I had thefirst two black directors on my board of directorsafter I became the head of an electric company.And in politics, you see black people at the toplevel and in the legislatures. You see it in everyarea of our society. That all goes back to Brown v.Board of Education.

Now public schools have problems, there'sno question about it. But most of them don't haveany basis in the Brown decision and, Frank, Ithink it would be a terrible decision if theyreaffirmed Plessy, but you know, we have problemswith housing and with economics and parentalcontrol and whatnot, but that does not negativethe very many positive things that have come outof it.

That's exactly the point that I was going to make,differing with you just a little bit, Frank. And thatis, I think you have to segregate, if you will,education and the rest of the world. In education,the progress has been disappointing. It has beendramatic in some areas. In the District ofColumbia, they did away with segregated schoolsat that time right away, and in many other partsof the country. But overall we're seeing more andmore segregated schools for whatever reason. ButBrown was the beginning of dramatic changes. Atthe time Brown came down, you had separatedrinking fountains for blacks and whites in theDistrict. African-Americans could not go intoConstitutional Hall. You had these tremendousburdens that began to be lifted with that decision.

20041

ST. JOHN'S LAWREVIEW

Black politicians began taking over cities andlegislatures. All kinds of dramatic things havehappened and we must not overlook that. That allreally originated with Brown.

Pollock: We sometimes hear comments that the promise ofBrown against Board has not been realized. Youreally have to ask the question, "Well, what wasthat promise?" Brown did not promise the end ofracism, although I think that Brown has had aprofound effect in reducing racism as the separatewalls have, to a great extent, at least whencompelled by state law, have been broken down.Brown did not promise the end of discrimination,which is still, undoubtedly, a national plague thathas to be addressed whenever we can. And Browndid not promise integration. What Brown was allabout was a matter of attacking compelledsegregation under law. It was not aimed atcreating racial balances in our institutions. It wasnot intended or designed as an end to thehorrendous black poverty that continues. It had avery important target, which, I think, it verysuccessfully addressed. And that is ending theblight of post-slavery segregation compelled bystate law. So from my perspective, I think thepromise of Brown has been now realized and thatit, I think, deserves its prominence which we arecelebrating here today as very possibly the mostimportant decision in the history of the SupremeCourt.

Multiple voices: Amen. [Applause.]

Moderator: Ladies and gentlemen, please join me in twoactivities--one of which you have alreadyanticipated. But before I ask you to applaudagain-

I took the occasion to reread Brown v.Board of Education last night in preparation for

[Vol.78:515

2004] LAW CLERKS RECALL BROWN 567

today's conversation. I think that one of the mostprofound things any citizen can do is really to readthat opinion, which Chief Justice Warren wrotedeliberately for all of us to read. And in thosewords, which are not about Utopia but are aboutthe abolition of a kind of legal line-drawing thatonce may have had a place but today has no place,one finds the genius and the accomplishment ofthe decision.

The second thing I ask you to do is join meagain in thanking our guests Jack Fassett, EarlPollock, Frank Sander and Barrett Prettyman fora wonderful conversation. [Applause]

ST. JOHN'S LAW REVIEW