Supreme Court Law Clerks' Recollections of Brown V. Board of Education II
Barrett, John Q., St. John's Law Review
On May 17, 1954, the Supreme Court of the United States announced two landmark decisions: Brown v. Board of Education of Topeka1 and its companion case, Boiling v. Sharpe.2 In Brown, which was a grouping of four separate state cases,3 and in Boiling, a case originating in the federal government's District of Columbia, the Supreme Court unanimously rejected its prior precedent4 and struck down as unconstitutional all state and federal laws requiring the racially segregated education of public school students. In the ringing words of Chief Justice Earl Warren's opinion, the Court concluded
that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws . . . .5
Last year, fifty years after Brown and Boiling, numerous events and publications commemorated the golden anniversary of those landmarks.6 While many of the perspectives on Brown that were voiced and written then are celebratory, some are not.7 The critical perspectives, focusing on all that has not happened since 1954 to achieve true racial equality in the United States, often target Brown itself for taking its path rather than some alternative.
In large measure, less-than-celebratory perspectives on Brown v. Board of Education are focused on the course and outcome of litigation that did not conclude, but in fact really began, on May 17, 1954. The Brown and Boiling decisions identified a new constitutional requirement-the Constitution prohibits racially segregated education-but they did not decree a remedy for the segregated school systems that then existed. Instead, the Supreme Court ordered, in Brown itself, that the school segregation cases be put back on its docket for further argument and requested further briefing regarding the kind of decree the Court should issue.8
One year later, after additional briefing by parties and amici, lengthy oral arguments, and extensive work and judicial deliberations within the privacy of the Supreme Court, the Justices decreed on Tuesday, May 31, 1955, again unanimously, that the Court was remanding the cases to the trial courts that had heard them originally for those courts to fashion local desegregation decrees.9 This decision has come to be known as Brown II. It is best remembered, and often attacked, for a fourword phrase that perhaps invited, and thus encouraged, governmental delay in desegregating schools and racist resistance to that process. In Brown II, we recall, the Supreme Court ordered the lower courts, on remand, to go about ending segregated school systems "with all deliberate speed."10
On May 18, 2005, just two weeks before the 50th anniversary of the Brown II decision, the Robert H. Jackson Center in Jamestown, New York,11 and the Supreme Court Historical Society assembled for a group discussion four attorneys who had been Supreme Court law clerks during that momentous Term of the Court. These men, Gordon B. Davidson, Daniel J. Meador, Earl E. Pollock, and E. Barrett Prettyman, Jr., had been, fifty and more years earlier, involved to varying degrees in the Supreme Court's work, and privy to various Justices' thoughts, as first Brown I and then Brown II were being decided. After leaving their Supreme Court clerkships in the summer of 1955, 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, these former law clerks had not, until this discussion, gathered as a group to share, compare, and assemble their recollections of Brown, and especially Brown II. The result, on May 18th of this year and now in this publication,12 is a detailed discussion that describes from the inside what the Supreme Court decided and how the Justices got there in Brown II, the culmination of the Brown v. …