Fifties (67 page)

TWENTY-EIGHT

B
Y THE EARLY 1950S
the Supreme Court was in chaos, racked, ironically, by long-simmering divisions among the four judges appointed by Roosevelt; if nothing else, the conflict reflected something of the political contradictions and deviousness of the man who had appointed them. The personal squabbles among the four intellectually towering figures—Felix Frankfurter, Robert Jackson, Hugo Black, and William O. Douglas—sometimes seemed more serious than the political ones. When Harlan Fiske Stone, the Chief Justice, died in 1946, Jackson was so bitter about being passed over as his successor that he went public with the accusation that Black was the mastermind of a plot to deny him the high office he so desperately wanted. For his part, Black believed that Jackson and Frankfurter (a relentless networker and political schemer) had worked behind the scenes to block his chances for the same position. Since the Court was the one institution in government
that was supposed to embody civility and courtesy, the rancor among these men was particularly unattractive.

There were two clear political factions on the Court, the more liberal Black/Douglas wing and the conservative Jackson/Frankfurter one—Frankfurter, a great liberal as a young man, believed that the Court was a conservative institution and seemed to want to reaffirm precedent as if his vote belonged more to the Court’s past than to his own instincts. Frankfurter referred to Black and Douglas sarcastically in his letters as the “great libertarians,” and his close friend Judge Learned Hand (who longed to be on the Court himself) referred to them in letters to Frankfurter as “the Jesus Choir,” and “the Holy Ones.” Jackson was hardly less virulent: He said of Black that “I simply give up trying to understand our colleague and begin to think he is a case for a psychiatrist.” Of a Black opinion, Frankfurter once noted, “It makes me puke.” Black, who was aware of the degree he irritated Frankfurter, once noted, “I thought Felix was going to hit me today, he got so mad, but he’ll get over it.” Nor was it only Black that Frankfurter (and Jackson) hated. In a letter to Hand in 1954, Frankfurter called Douglas “the most cynical, shamelessly immoral character I’ve ever known.” Douglas returned the sentiments and called Frankfurter “a prevaricator”; once after hearing an unusually long Frankfurter lecture, Douglas walked into the conference room and announced that he had been prepared to vote for the conclusion Frankfurter supported, “but he’s just talked me out of it.” The general atmosphere was poisonous. The Truman appointees, Harold Burton, Sherman Minton, and Tom Clark, more modest in talent, but more generous by nature, looked on aghast as these battles took place.

Truman, trying to make the Court more collegial, chose his old friend Fred Vinson to replace Stone in 1946 as Chief Justice, because he believed Vinson to be gregarious, likable, and extremely skilled as a conciliator. Like the President, Vinson was a small-town boy from the mid-South (Kentucky), where he had practiced law; like Truman, he had come to Washington as a New Dealer to serve in the Congress. Welcome in the back rooms of Capitol Hill, where the real decisions were made, he drafted some important early New Deal legislation and during the war he had served as a kind of domestic economic czar.

But Vinson’s skill of bringing people together, which had served him so well in the Congress, deserted him on the Court, where he faced questions too complicated and subtle for the old-fashioned compromise solutions he was accustomed to in the Congress. Moreover,
the men he was now dealing with did not have to run for reelection, and they were different by temperament than the kind of men Vinson had dealt with in the past. Frankfurter, Black, Jackson, and Douglas were men of formidable talent and intellect, matched only by their overwhelming egos. They did not welcome Vinson as a kindred spirit; instead, they looked down on him as second-rate; his former political strengths became liabilities. “This man,” Philip Elman, an influential Frankfurter clerk, wrote his boss, “is a pygmy, morally and mentally. And so uncouth.” Not that Frankfurter, a great intellectual snob, needed a great deal of convincing. If anything, the Court under Vinson fragmented even further, and in the early McCarthy years, as the issues of civil liberties came before the Court, Vinson took a simplistic (some might say craven) view toward protecting them. He believed that, with an enemy as terrible as the Communists, the President and the Congress knew best and that it was the job of the Court to defer to them. Hugo Black, one of the great free-speech advocates of his era, regarded Vinson’s views on this subject with great disdain. They were, he thought, laced with superstition and ignorance—we had to sacrifice our liberties in the struggle with Communism or, “the goblins’ll get you.”

The most unfortunate aspect in all this was that a number of transcending questions were wending their way toward the Court docket. The most important of these dealt with the question of separate-but-equal school facilities in the South. Indeed, Frankfurter tried to slow down the segregation cases, not only because he felt that Vinson was unsympathetic but worse, he lacked the capacity to lead the Court in dealing with the most emotional and broad-ranging cluster of cases it had faced in this century. By this time a number of cases challenging the right of states to segregate their schools, including one filed in (of all unlikely but highly segregated places) Topeka, Kansas, had worked their way through the judicial process and had reached the Supreme Court. The Kansas case had been filed in 1951 by a black welder named Oliver Brown, who objected to the fact that his eight-year-old daughter, Linda, had to go twenty-one blocks by bus to a black school when there was a white school only seven blocks from her house. Brown, a mild, religious man, was hardly a local radical: He had tried hard to register his daughter at the all-white Sumner School but finally decided to sue the local school board. The case was filed under the title
Brown
v.
Board of Education
of Topeka.

In the South, the concept of separate but equal had always been a sham: It might have been separate, but it never was equal. Before
World War Two, black groups pressing their case were weak, undermanned, and underfinanced. Nonetheless, the process of chipping away at segregation had begun in the thirties and forties. Gunnar Myrdal’s
An American Dilemma,
a devastating indictment of segregation, was published in 1944. Myrdal revealed the terrible fiction of separate-but-equal facilities: The Southern states were spending twice as much to educate white children as they were black children and four times as much for school facilities; white teacher salaries were 30 percent higher; and there was virtually no transportation for black children to and from school. The disparity was even greater at the college level, where the Southern states spent $86 million on white colleges and $5 million on black colleges. A study by Ralph Bunche showed that the poll tax was highly effective in keeping blacks out of the political process; only 2.5 percent of the black population voted in the presidential election of 1940 in the deep South.

If the pace with which the challenge to segregation moved through the courts was, in the words of Richard Kluger, “a glacially slow process,” then there was finally a sense of steady progress in the postwar years. Thurgood Marshall, the shrewd, folksy black lawyer, had started working for the NAACP in 1936 for the grand sum of $2,400 a year, plus expenses, and he carried the burden of much of the litigation. Marshall argued most of the early civil rights cases in small Southern courtrooms and suffered the worst indignities of segregation himself, not to mention the threat of physical danger. No town in which he argued seemed to be large enough to have a hotel or restaurant for black people. Most often he stayed in the homes of local blacks. In court he was rarely referred to as Mr. Marshall; instead, according to the custom of the South, he was addressed by his first name, as if he were still a boy. On occasion, he liked to reminisce about the small town in Mississippi where a local resident had told him, “Nigguh, I thought you oughta know the sun ain’t nevah set on a live nigguh in this town.” So, he noted, he had “wrapped my constitutional rights in cellophane, tucked ’em in my hip pocket,” and caught the next train out of there. Marshall and a handful of colleagues attacked the segregationists where they were most vulnerable—in the border and Southwestern states, where racism was less virulent. Always waiting in the background was the larger question: Even if a state provided truly equal facilities, was it not still discriminatory, nonetheless, to shunt one segment of the population off to separate schools?

By 1950, the Supreme Court began to tilt away from segregation
and had outlawed it in graduate schools. Marshall and his handful of colleagues had carefully and indeed cautiously escalated what had begun as piecemeal raids on the periphery of segregation into a full-scale assault upon its very core. That meant taking on the critical precedent of
Plessy
v.
Ferguson,
the critical decision made some sixty years earlier. In the aftermath of the Civil War there had been considerable impetus to give blacks full citizenship. The Thirteenth Amendment had outlawed slavery, and the Fourteenth Amendment ruled that state governments could not deny black citizens due process or equal protection. “The Fourteenth Amendment,” Thurgood Marshall liked to say, “was no more or less than a codification of the Judeo-Christian ethic.” But slowly and steadily after that, the pendulum had swung back to reflect the prejudices of the white power establishment. By the latter part of the nineteenth century, a series of separate-but-equal laws authorized segregation throughout the South: Most of these seemed in direct conflict, legally and spiritually, with the Fourteenth Amendment. Among these was a Louisiana law that said all railroad trains should have separate-but-equal accommodations. In June 1892 a light-skinned black man named Homer Adolph Plessy deliberately tested the law on a trip from New Orleans to Covington, Louisiana. He was asked to leave by the conductor, then arrested and tried before Judge John Ferguson in New Orleans. Plessy argued that the arrest had violated his rights under the Fourteenth Amendment, but Judge Ferguson ruled against him. The case eventually found its way to the Supreme Court, where Justice Henry Billings Brown (a rather bland Massachusetts judge who had paid someone to take his place in the Union Army) handed down the decision against Plessy. Brown argued that it was not clear which rights were actually covered by the Fourteenth Amendment, and he noted that the government could not force citizens to commingle. Somewhat disingenuously, Brown argued that segregation laws did not necessarily imply the inferiority of either race. It was a remarkably insensitive decision, reversing the tide of legal equality begun after the Civil War. “Justice Brown, in short would make no provision for the fact or purpose or result of the Civil War,” wrote Richard Kluger, a historian of the segregation decisions. “He [Justice Brown] wrote as if the South had won.” The vote against Plessy was seven to one, the one dissenting cast by John Marshall Harlan, the leading intellect of the Court and himself a very conservative man. In a passionate dissent, he noted that if the state could do this to blacks on railroad cars, could it not do it elsewhere to other groups, “of native and naturalized citizens of the United States, or
of Protestants and Roman Catholics?” He added: “The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power.... But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”

For the next fifty years a legal, political, and social crisis built. In the vacuum of presidential and congressional inaction on the subject—the Democratic party, after all, was paralyzed by the power of its Southern wing in the Congress—the issue was finally passed on to the Supreme Court. Whether Chief Justice Vinson himself would be willing to help reverse the
Plessy
decision was a serious question among those who knew him well. When the Court met in conference in December 1952, he observed, “However we construe it, Congress did not pass a statute deterring or ordering no segregation.” He was clearly very nervous about the course ahead: “We can’t close our eyes to the seriousness of the problem. We face the complete abolition of the public school system.” Since Clark tended to vote with Vinson on such issues, Frankfurter, a conservative who nevertheless was convinced that segregation had to end, foresaw a decision that would end segregation, but only by a five-to-four vote. Such a narrow margin would make implementation difficult, if not impossible. As a delaying tactic, Frankfurter suggested rehearing the arguments. The new hearings were scheduled for December 1953, but in September Vinson suddenly died of a heart attack. “This is the first indication I have ever had that there is a God,” said Frankfurter.

The question now was who Dwight Eisenhower would pick as the new Chief Justice. The President announced that his choice would be a political moderate like himself. He offered the job to Foster Dulles, knowing almost surely that Dulles would turn it down—taking on international Communism was a big enough job for him. Speculation began to center on Earl Warren, the liberal governor of California, who was coming to the end of his third term. (“He’s a Democrat and doesn’t know it,” Harry Truman once said of him.) In the 1952 Republican convention, Warren had thrown his support to Eisenhower in the early procedural confrontations, thereby stopping Taft. Whether Ike owed Warren after that is debatable, but for a while there had been talk of a place for Warren in the Eisenhower cabinet.

He was born in California in 1891. The name was originally Varran and was Americanized to Warren; his father had emigrated
from Norway as an infant. Like many Scandinavians, his family headed for the Midwest. The poverty of his father’s life was crushing; years later Earl Warren said that when he read Dickens’s
Oliver Twist,
the first thing he thought of was his father’s life. Matt Warren became a railroad car repairman. In an age of bitter labor divisions, he had taken part in union activities, for which he had been duly punished. Matt Warren taught his children to be careful and thrifty: “Earl, saving is a habit, like drinking, smoking, or spending. Always save part of what you earn.” As a boy Earl held a series of demanding jobs—delivering ice and groceries among them—and he managed to save eight hundred dollars, enough money to go to Berkeley. He loved Berkeley, where if he was not a brilliant student, he was an enthusiastic one.