For the Jackson List:
On May 17, 1954, sixty-four years ago today, the Supreme Court of the United States decided Brown v. Board of Education and its companion cases. The Court held that government segregation by race of school children was, henceforth, barred by the U.S. Constitution. The Court declared that state government school segregation was barred by the Fourteenth Amendment’s Equal Protection Clause, and that federal government school segregation was barred by the Fifth Amendment’s Due Process Clause.
During the Court’s public session on that Monday, Chief Justice Earl Warren announced that his opinions for the Court in the Segregation Cases were unanimous—all eight Associate Justices had voted to join him.
Chief Justice Warren announced those unanimous decisions in the company of all of his colleagues—a full Court of nine Justices filled the bench.
Each of those components—nine votes for Warren’s opinions for the Court, and nine Justices present as the decisions were announced—came together late, each thanks to the decision and effort of, in each instance, one justice who could be called a late joiner.
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Justice Stanley Reed was the justice who made the Court’s decisions unanimous. In 1952, after the Segregation Cases were first argued at the Court, Reed had voted in the Justices’ conference to adhere to the segregation-permitting “separate but equal” doctrine of Plessy v. Ferguson (1896). He stuck to those views in 1953 and into 1954. He drafted what could have become an opinion dissenting from a Court decision declaring school segregation to be unconstitutional.
But in Spring 1954, Justice Reed decided not to use that draft, and instead to vote as he did.
Reed’s final deciding began on Friday, May 7, when Chief Justice Warren circulated typed draft segregation case opinions for his colleagues to review.
The next day, Warren met with Reed, and also with other Justices. Contemporaneous notes show that Reed, having read the drafts, no longer was an adamant vote to uphold the constitutionality of school segregation.
Over the next days, Warren continued to converse with his colleagues about the cases. By Wednesday, May 12, the Chief Justice knew, and he began to tell various Justices, that the Court would be unanimous.
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Justice Robert H. Jackson was the justice whose presence made the Court physically complete when Chief Justice Warren announced on May 17 the unconstitutionality of school segregation.
In late March 1954, Justice Jackson had suffered a major heart attack and almost died. Thereafter, he had been convalescing at Doctor’s Hospital in downtown Washington and absent from the Court.
On Saturday, May 8, Warren visited Jackson twice at the hospital, in the morning to deliver first draft opinions, and in the afternoon to discuss them. In the second meeting, Jackson voiced his enthusiasm for the drafts and suggested some edits and inserts—a couple of which the Chief Justice accepted.
On Monday, May 10, Justice Felix Frankfurter visited Jackson at the hospital. Frankfurter found that Jackson was expecting to be released from the hospital in a week or less.
The next day, Jackson, accompanied by a nurse, made his first foray out of the hospital—they went to lunch at a nearby French restaurant. (1954 cardiology!)
On Thursday, May 13, Jackson wrote to Justice Harold Burton. Jackson thanked Burton for the plant that he had brought on a recent visit to Jackson in his hospital room. Jackson also reported that he expected to be released from the hospital on Sunday, May 16, and that he expected to begin coming to the Court a few days after that for short conference and decision announcement days.
On the afternoon of May 13, after Jackson had sent his note to Burton, Chief Justice Warren again visited Jackson at the hospital. Warren showed Jackson printed opinions in the Segregation Cases, demonstrating that the decisions were ready to be announced on the Court’s next decision day—Monday, May 17—and apparently telling Jackson of the Court’s unanimity.
It seems that Jackson told Warren then that Jackson could and would be present on the bench for the announcement. It mattered to Jackson, and also to the Chief Justice, that the full Court be physically, visibly present in its moment of unanimous decision.
On Friday, May 14, the proposed opinions were tweaked, reprinted, and recirculated.
On Saturday morning, May 15, Justice Frankfurter wrote a note to Chief Justice Warren. Frankfurter, indicating his understanding that Jackson now could join the Court on the bench, urged the Chief to announce the decisions on May 17:
Dear Chief:
An opinion in a touchy and explosive litigation, once it has been agreed to by the Court, is like a soufflé—it should be served at once after it has reached completion. And so I venture to urge that no room be left for contingencies—one can never tell—nor for the real danger of leakage, since walls are supposed to have ears.
I am assuming, of course, that all are in and that Bob can be here Monday! Yrs
FF
Later that morning, eight Justices met in conference at the Court. Jackson was still absent. Although hospitalized, he actually was, during the hours when his colleagues were conferencing, out with his nurse and doctor for a second French restaurant lunch.
In the Saturday, May 15 conference, the Justices discussed the Segregation Cases and agreed that the unanimous decisions would be announced two days hence.
And they were, with all Justices present.
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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.