Supreme Court Law Clerks' Recollections of Brown V. Board of Education

Article excerpt

INTRODUCTION

On May 17, 1954, the Supreme Court of the United States decided in Brown υ. 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 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 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.

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. …