When Justice Robert H. Jackson died suddenly in early October 1954, the Supreme Court of the United States had just started its new term. The U.S. Congress was in recess—both Houses had adjourned on August 8, the Senate until November 8 and the House of Representatives sine die (i.e., for the remainder of that Congress). Most House Members and many Senators were in their home Districts and States, respectively, campaigning for reelection on Tuesday, November 2. President Eisenhower was completing his long summer vacation away from Washington.
On Monday, November 8, six days after the midterm elections, the Senate reconvened in special session. Its task was to consider a proposed resolution censuring Senator Joseph R. McCarthy (R.-WI).
President Eisenhower added to the Senate’s work for that “lame duck” session by sending it, also on November 8, his nomination of Judge John M. Harlan of the United States Court of Appeals for the Second Circuit to succeed Justice Jackson on the Supreme Court.
In the Senate, Judge Harlan’s nomination was referred to a Judiciary Committee subcommittee. Most expected that it would hold hearings promptly, and that Judge Harlan’s appointment would be confirmed by the full Senate before Thanksgiving Day, November 25.
On November 19, however, Senator William Langer (R.-ND), the subcommittee chairman, announced that he would not be holding the hearing that month, or indeed before the end of the year. He declared that the subcommittee would not consider Judge Harlan’s nomination until the new Congress was seated in January 1955.
* * *
All of this was connected to, and it affected, the Supreme Court’s ongoing consideration of the constitutionality of state and federal laws segregating school children on the basis of race. On May 17, 1954, in Brown v. Board of Education and its four companion cases, the Court had unanimously declared school segregation laws and systems to be unconstitutional. But those decisions did not complete the Supreme Court adjudications of the cases. At the same time that the Court had decreed school segregation to be unconstitutional, it also had deferred ordering any remedial action. Instead, the Court had restored the cases to its docket for the coming Term and asked the parties to file new briefs addressing the question of remedy.
This process went forward during summer 1954. On September 21, the Court announced that November 15 would be the deadline for filing briefs, and that the Court would devote the full week of Monday, December 6, to hearing oral arguments.
Then, on October 9, Justice Jackson died.
Then President Eisenhower nominated Judge Harlan.
Then Senator Langer announced that the Senate then sitting would not give Judge Harlan a hearing.
Senator Langer acted as he did at the request of his colleague, Senator James O. Eastland (D.-MS). Senator Eastland was an ardent segregationist. (If your time permits, click here to watch a 1957 Mike Wallace interview of Senator Eastland regarding his segregationist views.) As Senator Eastland well knew, Judge Harlan was a northerner—he was a New Yorker. He also was the grandson of the first Justice John M. Harlan, who had served on the Supreme Court from 1877 until 1911 and famously, in Plessy v. Ferguson (1896), dissented alone from the Supreme Court decision upholding the constitutionality of Louisiana’s “separate but equal” racial segregation law governing railroad passengers. Senator Eastland was concerned in late 1954 that a Judge Harlan become a(nother) Justice Harlan would be strongly supportive of the Brown decision and hostile to the legality of racial segregation. Denying Supreme Court nominee Harlan a hearing then would preclude him from joining the Supreme Court in time to hear the then-scheduled December oral arguments about the proper remedy for unconstitutional school segregation, and it might keep him off the Court altogether.
The next morning, the Washington Post published the following editorial, “Mr. Eastland’s Obstruction”:
There are most unfortunate overtones in the delay in confirming John Marshall Harlan to be an Associate Justice of the Supreme Court. Senator Eastland of Mississippi, whose objection caused the Senate Judiciary Committee to postpone hearings on Mr. Harlan until January, cited no good reason for his course. But everyone knows that the argument on how the court should carry out its antisegregation ruling has been set for December. The effect of the Eastland objection is to force the court to go ahead with only eight members on the bench or to postpone this important and long-scheduled hearing.
Of course the Senator had a right to object, and if any serious question concerning the nomination of Mr. Harlan had been raised, a careful investigation would be necessary. But the only objections filed with the Judiciary Committee have been too trivial to justify a moment’s consideration. One letter complained that Mr. Harlan was a Rhodes scholar, others that he had been a member of the advisory board of the Atlantic Union, that he lacks sufficient experience and that his law firm once represented a telephone company. Senator Eastland did not dignify these objections by referring to them, and the effect was to leave his obstructionism entirely without justification. In the circumstances it is difficult to escape the conclusion that he used a senatorial prerogative to make it more difficult for the Supreme Court to go ahead with the segregation case.
Two days later, the Supreme Court responded publicly. It issued a new order in Brown: “In view of the absence of a full Court,” it announced, the school segregation cases “scheduled for argument December 6th, are continued.”
* * *
On December 2, 1954, the outgoing Senate voted to censure Senator McCarthy. It then adjourned sine die. President Eisenhower’s nomination of Judge Harlan to serve on the Supreme Court, sent by the President to that Senate, the 83rd, accordingly expired.
The new Senate, the 84th, convened on January 3, 1955.
President Eisenhower did not change course. On January 10, he sent to the new Senate his nomination of Judge Harlan to be an Associate Justice of the Supreme Court.
After further delays, the Senate held Judge Harlan’s confirmation hearing.
On March 16, the full Senate, voting 71-11, confirmed Justice Harlan’s appointment to the Supreme Court.
Shortly thereafter, the Court announced that it would devote the full week of April 11 to hearing oral arguments in the school segregation cases.
Seven weeks later, on May 31, 1955, the Supreme Court decided the school segregation remedy cases, Brown II, unanimously. The Court sent the five cases before it back to the trial courts in which they had been filed. It directed those courts to use their equitable powers to fashion practical, flexible decrees remedying unconstitutional racial segregation in public schools. The Court also directed those courts to require each defendant school board or other government entity or official to “make a prompt and reasonable start toward full compliance” with the May 1954 Brown I decision. But the Court also authorized the trial courts to make factual findings thereafter, as they retained jurisdiction over these cases, that any defendant had established a need for additional time as it pursued “good faith compliance at the earlier practicable date” with the Supreme Court’s school desegregation decree, and thus to grant such an extension. Finally, as to the plaintiffs—the black school children—in the five cases, the Supreme Court directed the lower courts “[t]o take such proceedings and enter such orders and decrees consistent with this [Brown II] opinion as are necessary and proper to admit [the children] to public schools on a racially nondiscriminatory basis with all deliberate speed . . . .”
—————–
This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/. To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.