On Handwriting, Notes from William H. Rehnquist, and Other Stuff in My Magical Boxes
I picked up box #2 today to finish up the last stages of my cite-check from hell. Box #1 was mostly the papers of Justices Jackson, Burton, and Douglas. Box #2 is mostly Douglas again (apparently, he has a copious amount of papers), but there's a lot more Clark in it. Every now and then, I feel like I should bill fewer hours for organizing it because I spend a lot of time just reading stuff for the hell of it when I should be filing it away. My personal favorite today was Justice Clark's handwritten draft dissent in Cooper v. Aaron
, the case that officially integrated the Little Rock schools. Apart from its practical effect (with attendant National Guardsmen and the like), the case is best known for its statement that "the federal judiciary is supreme in its exposition of the law of the Constitution," kind of like Marbury v. Madison
(which held that "it is emphatically the province and duty of the judiciary department to say what the law is") on steroids. Justice Tom Clark (father of future US Attorney General and Bush impeachment fan/Saddam defense attorney Ramsey Clark) was a southerner, a Texan who, along with Justices Reed, Jackson, Frankfurter, and Vinson, would have upheld Plessy v. Ferguson
the first time Brown I
was argued before the Court. (Side note: Clark resigned from the Court when his son became Attorney General under Johnson, in case anyone is wondering whether they could coexist without a conflict of interest.) After some convincing, he went along with the decision for integration, and he joined the unanimous opinon in Brown II
(integration shall proceed with "all deliberate speed") as well.
As a bit of background to Cooper
, it should be noted that the Supreme Court's term generally begins in the first week of October. When the Little Rock Nine filed their suit, they were seeking admission in time to be in class before school started in September. Chief Justice Earl Warren took the extraordinary step of hearing the case at the end of August, when the Court is usually in recess, and made sure a ruling was out before the school year began. (Cue National Guard and all that.) Justice Clark didn't object so much to the integration of Little Rock Central High as he did to the violation of the procedural rights of the Little Rock schools, believing that they should have until October to get everything prepared. As he put it:
The fact that there are those who by "massive resistance" are attempting to deprive some good citizens of their constitutional rights is no justification for depriving [the Little Rock School Board] of their day in court. Our order [in Brown II] did not conteplate "massive integration" but that it would be accomplished in good faith and in regular course.
I would deny the stay [sought by the Little Rock Nine that would allow them to enter school in September] and dispose of the case on its merits in regular course.
Unanimity was a tremendously important thing to the Warren Court on school segregation issues, and Clark was convinced to go along with the majority opinion by, among others, Justice Frankfurter (who, irony of ironies, released a concurrence several months (!) after the original opinion was released).
Obviously, that Justice Clark wanted to dissent from the beginning here is of some interest, but what interests me more (at least for the purpose of this entry) is that his draft dissent was handwritten. Usually a draft dissent or concurrence (like Jackson's draft concurrence in Brown I
) is typewritten, but for the Segregation Cases, such things were rarities. The members of the Court were (perhaps justifiably) paranoid that a copy of a typewritten memo might leak out to the Southern press, with drastic consequences to follow. (Indeed, between 1955 and 1967, when George Wallace left the Governor's mansion the first time, Hugo Black went home to Alabama exactly once because there were so many death threats out for him that his family told him they'd visit Washington instead.) Justice Frankfurter's memos with proposals for how to resolve the cases all have prefaces noting that they've been typed in the strictest security. Jackson's draft concurrence for Brown I
is the lone draft opinion from the school cases that was both typewritten and never published. Obviously, all the Justices took handwritten notes when they had conferences after argument; that's our main way of knowing what went on today. (Side note #2: although Justice Burton's handwriting is terrible, he was apparently the Court stenographer, and I think it's fascinating to read his notes and know almost everything that went on during the conferences that decided these cases. When I finally find my camera cable, I'll take a picture.) But for some, knowing their notes were handwritten wasn't enough security. Justice Black, worried about repercussions for his family back in Alabama, burned all of his conference notes after a segregation case was disposed of. He eventually decided to burn all the conference notes he'd ever taken, just in case, and to this day, you have to have permission from his descendants to look at his papers in the Library of Congress. (It's just a formality, but if I were in his shoes, I can see why that step would seem necessary.)
The Jackson concurrence in Brown I
is pretty cool too. Justice Jackson, as mentioned above, was a vote for upholding Plessy
the first time Brown I
was argued. As any judge would do, he asked his law clerks for their thoughts on the topic, and, as I posted last week
, a clerk of his by the name of William H. Rehnquist urged that Plessy
be upheld. When Rehnquist was under consideration as an Associate Justice (the early 1970s, when Nixon nominated him), the memo supporting segregation became an issue at his confirmation hearing. Rehnquist's response was that those weren't his personal views; he was just saying what Jackson wanted to hear. While unlike bubbaprog
, I don't believe that Rehnquist went to the grave thinking that upholding segregation was the right outcome in anything but a legal sense (after all, there's a substantial minority of people today who feel that Brown I
was right on policy and wrong on law), upon reading Jackson's draft concurrence, I can't give Rehnquist the benefit of the doubt. Obviously, the makeup of the Court had changed, and Rehnquist was no longer a clerk, but Jackson finally decided that desegregation was the correct way to go, and he spent 23 pages of 8.5x14 paper expounding on why. It's my guess that Rehnquist's pro-Plessy
memo was about 50% Jackson and 50% what he thought himself.
Anyway, that's the best stuff I've come across in my boxes of magical Supreme Court papers. There's some other nifty things, too--like handwritten memos from Frankfurter telling everyone else how stupid they are (he was an insufferable asshole, kind of like McReynolds minus the anti-Semitism), but, from a historical standpoint, I think the aforementioned is the most interesting.