Mr. Justice Reed and Brown v. The Board of Education

by John B. Fassett

Editor's Note: The following is the text of a talk delivered to "The Benchers"–a group of Connecticut judges and lawyers–regarding Justice Reed and the School Segregation Cases in 1966. For two decades after this talk was given, the author continued the embargo on his remarks.

For some time after receiving Art's card indicating that a "proper" assignment of papers put me in the lead off position this season I cogitated about an appropriate subject. I particularly gave thought to discussing either legal problems in the banana industry, a subject I have lived with for many years, or the philosophy and history of regulation of insurance rates, a field as to which we still have appeals in two cases pending before the Supreme Court of Errors.

However, I rejected both of such subjects in favor of the subject "a case study in the appropriate bounds to secrecy of proceedings of the Supreme Court" for two reasons. First, it seems to be the vogue for every person who has ever had a position of confidence in the executive department of the federal government immediately upon leaving there to breach the most intimate confidences. Witness the rash memoirs that have been emerging from the Kennedy team: Schlesinger, Sorenson, even Kennedy's secretary. In short, I wanted to be in vogue.

The second reason is more of a selfish one. While there has been a rash of behind the scenes exposes by members of the executive branch for some years (you will recall that Eisenhower also had his Sherman Adams and Emmett Hughes), there have been relatively fewer from the judicial branch. Tony Lewis did give away a few secrets in "Gideon's Trumpet" but he can hardly be accused of breaching confidences obtained as an insider because his association with the Court was as a newspaperman. Really the nearest one can come to a Schlesinger of the Supreme Court are Barrett Prettyman's "Death and the Supreme Court"; John Frank's "Marble Palace"; Phil Kurland's "Mr. Justice" or Alex Bickel's "The Least Dangerous Branch." All four were former clerks to Supreme Court Justices but none of their books were of the expose type or designed for broad audiences. They did reveal a few "secrets" in their course but none of them was sufficiently popular in approach to come close to making a best seller list.

My selfish reason is that I have the desire to tell a story in confidence and perhaps to receive from this eminent group opinions regarding whether I should continue to withhold it from public knowledge. I trust that each of you will respect my confidence and not publicly discuss the details of the peek behind the velvet curtains of the Supreme Court I am about to afford.

This story is, of course, based upon my experience as a law clerk to that fine gentleman, Justice Stanley F Reed, during the 1953 term of the United States Supreme Court. Thanks largely to the late Dean Wesley Sturges, I had the good fortune not only to be appointed to what then was agreed was one of the better clerkships on the Court (the difference being the status accorded to a clerk by the different Justices; whereas a Frankfurter clerk, for example, was a researcher and an outsider, many Reed clerks were favored with the full confidence of the Justice and participated in large measure in the Justice's share of the work of the Court). Thanks to fate I served my clerkship during one of the most momentous terms of the Court. In addition to the case I shall discuss in some detail, it was a term of several other important decisions, but the primary reason it was a momentous term was that it was the first term for a new Chief Justice and a realignment of factions was occurring.

Having been the first clerk selected by Justice Reed for the 1953 term, I was requested to report for duty promptly after being graduated and taking the bar exam. Accordingly, I arrived at the Court in June 1953 within a few days after the Court concluded the work of the 1952 term including a special hearing with respect to the Rosenberg case. Most of the Justices departed from the Washington area promptly after that session and I only had a couple of hours with Justice Reed before he took off for his annual medical check-up at Duke Medical Center and his sojourn at his farm in Kentucky. The Justice told me that my predecessor would be with me for a month to show me around and introduce me to my duties. He informed me of his planned itinerary for the summer recess which included stopping briefly in Washington on his way from Maysville to Oyster Bay, N.WY, where he planned to spend the month of August. He indicated that he would be in contact during his absence and that he would be back on the job before Labor Day. He told me a little about my co-law clerk whom I had never met and who would be reporting for work on August 1st after finishing a year with Judge Fahey of the D.C. Court of Appeals. It was my responsibility to pass on to such fellow worker, George Mickum, what I learned from my predecessor and to allocate a portion of the work to George.

Toward the conclusion of our discussion the Justice casually asked me how familiar I was with the segregation cases. I candidly admitted that my knowledge was pretty slim; that, as he knew, I had not really been a civil rights activist in law school (although I co-authored with Ralph Brown three law journal articles on loyalty and security programs); and that my main interests at law school were the bread and butter courses. The Justice pointed out a shelf containing the records in the segregation cases that were then pending and suggested that I use any "spare" time getting familiar with them.

I believe it is fair to say that beginning that first day of my tenure as a law clerk and continuing through the day I departed the marble halls thirteen months later, I was embroiled in the school segregation problem to as great an extent as any person at the Court with the exception of the nine Justices themselves.

Each justice had a suite of three spacious rooms–a large office with fireplace for himself, and offices on either side, one occupied by law clerks and the other by his secretary and messenger and used as a reception room. By the third day after I moved in with my predecessor I had completed several "cert. memos" to his satisfaction and he began dropping hints that he would like to get away sooner than scheduled. Like most law clerks after a year of hard work and strain, he was anxious to turn over the reins and get some vacation before starting work with a large Washington law firm. He had the added reason that he had gotten married only a short time before. In any event, I think he probably would have started his terminal vacation about four days after I arrived except for the fact that a letter arrived from Durham. Before the Justice had departed he had asked Bob to prepare for him a tabulation of state laws relating to segregation of any kind. Bob had finished a compilation which he had sent to Maysville along with a note reporting on his plan to begin his vacation forthwith.

Justice Reed's letter from Duke read as follows:

With noticeable lack of enthusiasm, Bob began the project assigned. By the beginning of my second week I was beginning to make good progress on the appeals and petitions for cert. and therefore I was a setup for Bob's entreaty that I finish his project so that he could resume his honeymoon. Bob had not only departed the Court but also the country by the time the Justice's second note of the summer arrived. Accordingly, the letter was delivered to me by the Justice's secretary and I inherited another project.

This second letter dated July 9, 1953, read as follows:

I also ended up inheriting Bob's original project since within a few days a third note dated July 14, 1953 arrived. It read:

It was readily apparent to me from this stream of mail from North Carolina and Kentucky that Justice Reed was quite preoccupied with the segregation cases. I decided that I had better start learning something about them so I began taking home and reading in the evenings parts of the extensive records in the cases. While I had had general knowledge of the facts that the five cases involved had reached the Court for review many months before, that they had been consolidated for purposes of argument, that Thurgood Marshall and other counsel for the Negro plaintiffs had argued during the prior term that any racial segregation in public schools was unconstitutional, and that rearguments had been ordered for the 1953 term, until I examined the order issued by the court on June 8, 1953, directing reargument, I did not realize that the Court had specified that reargument should deal with the following specific questions:

1. that future Congresses might, in the exercise of their power under section 5 of the Amendment, abolish such segregation, or

3. On the assumption that answers to questions 2 (a) and (b) do not dispose of the issue, is it within the judicial power, in construing the Amendment, to abolish segregation in public schools."

4. Assuming it is decided that segregation in public schools violated the Fourteenth Amendment

5. On the assumption on which questions 4 (a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4 (b),

1. should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees."

I was growing a little concerned at this juncture about being able to do the work I wanted on the segregation projects and also having time to complete a substantial batch of cert. memos to give to the Justice on August 1st to take with him to New York. I was therefore pleased when my fellow clerk George showed up in the middle of July and indicated he was ready to come to work a couple of weeks early if that wouldn't upset the organization. Virtually before he had completed the sentence I had him beginning to read a petition for certiorari.

I found little problem in preparing the tables of due process cases, but I ran into considerable difficulty in trying to get comparative statistics between Negroes and whites. An afternoon in the Library of Congress with one of the Supreme Court librarians was unrewarding and I finally turned to the FBI. J. Edgar Hoover provided some vague figures, but I was astounded that more complete figures apparently were not available anywhere.

While the Justice's first two letters demonstrated a wide range of inquiry related to the segregation questions, they gave no clear indication of his disposition regarding the outcome of the controversy. I, of course, attempted to learn from Bob the Justice's position on the subject as well as the positions of the other Justices. I was somewhat surprised that he indicated that the Justice had not discussed the question with him. Bob obviously harbored no doubt that Justice Reed was in favor of segregation and Bob was so dogmatically uncharitable to such view I quickly understood why the Justice probably would not attempt to engage in a discussion of the subject with him.

The Justice's third note–the one criticizing Bob's list of state statutes–seemed to me to confirm at least to some extent Bob's conclusion regarding the Justice's position. However, I was intrigued by the diversity of angles from which the Justice was attempting to view the questions. I discussed the project with George and he indicated no concern about the implications–an attitude that troubled me somewhat, but which I attributed to his having been born and raised in southern Maryland. All of the law clerks ate lunch together each noon in a dining room in the basement of the court–obviously designed to enable the clerks to discuss court work without danger of outsiders overhearing conversations. While it appeared to me that all of the new clerks for other Justices were strongly in favor of the Court overruling Plessy v. Ferguson, the 1896 decision that held that the Equal Protection clause of the 14th Amendment is satisfied as long as separate but equal facilities are afforded different races, it also appeared that none of the Justices had confided in their clerks on the happenings behind the scenes in the pending cases.

Justice Reed stopped at the Court for a brief visit early in August. He did not stay long enough to do any work or to enable us to engage in any extended discussion regarding the segregation discussion. However, I did report regarding the problems we had run into in attempting to get statistics on crime and delivered the "due process" memo and the revised memo regarding state segregation provisions. The Justice also took with him several briefcases filled with cert. memos and petitions.

It quickly became apparent that the change of environment and the diversion of the "certs" had not entirely diverted Justice Reed's cogitations from the segregation cases. A letter addressed to his own Chambers at the Supreme Court Building 'Attn: Law Clerks" which had been posted at Oyster Bay on August 14th was delivered to me by one of the court's messengers (Justice Reed's own messenger doubled as his chauffeur and general factotum and was with him in New York). It read:

The "yellow notes" referred to in the letter made obvious the use to which the authorities to be assembled were going to be put. It read:

Visits to the Library of Congress and the U.N. Information Center produced a fairly impressive collection of books and pamphlets having some bearing on the attitude of other nations and the United Nations toward segregation. Thus I was able within a day of receiving the Justice's letter to send him the materials he wanted.

The Justice returned to the District prior to Labor Day and from the day he returned until the day court recessed the following June he was in his office at the Court six, and sometimes seven, days a week including most of the holidays. Needless to say, except on rare occasions George and I both arrived at the Court earlier than the Justice and did not leave until he was also on his way. Saturdays were a particularly difficult day because the Court was then still holding conferences starting at noon on Saturday. Many times such conferences did not conclude until after six o'clock, and I always liked to get a report on what had occurred promptly thereafter. I also have vivid recollections of several Saturday evenings when Justice Frankfurter stormed in to see the Justice while he and I were conversing to continue some debate that Felix had lost in conference. One time in particular, Justice Reed had to make a dinner and he left Justice Frankfurter and me to argue for 15 minutes about procedures for en banc hearings in Courts of Appeals. Apparently we got rather loud because Miss Gaylord, Justice Reed's secretary, and George were having a hard time controlling their mirth when Felix finally gave up trying to convert me (and I guess he hoped Justice Reed) to his view.

I did not keep a diary so, although I made notes while my memory was still fresh, it is difficult for me to place the exact sequence of events from the date of Justice Reed's return until May 17, 1954, the day the segregation decisions were announced. However, I vividly recall the first extended discussion we had very shortly after he returned from New York. It started when, after discussions of the various summer projects, I asked the $64 question: was the Court going to meet the issue of the continued vitality of Plessy v. Ferguson head on. Justice Reed did not evade the question but promptly replied in the affirmative, adding "they know they have the votes and they are determined to resolve the issue."

During the long conversation that ensued I added one of the Justice's favorite words to my vocabulary. In response to my observation that it seemed to me that the result they sought to achieve was desirable, he said he did not conceive that to be the Court's function. He then inquired whether I believed in "krytocracy." When I confessed my ignorance of the definition of such term he directed me to one of his favorite sets of books, The Oxford English Dictionary, from which I learned that krytocracy means government by the Judges.

During this conversation Justice Reed indicated that he did not expect to be a lone dissenter in the segregation cases. He believed the Chief–Fred Vinson–was with him and he felt that at least one other Justice would join him when the chips were down. It was my impression that he felt that Justice Jackson was not sold on overruling Plessy and he had some idea others might join his dissent. On the other hand, he obviously was convinced that there was a solid majority against him.

During the ensuing week the Justice and I had several additional discussions regarding the segregation cases. Justice Frankfurter's law clerk of the prior term, Alex Bickel (now a Professor at Yale), had spent several months researching regarding the intent of persons connected with the drafting and ratification of the Fourteenth Amendment regarding its effect on segregation. Justice Frankfurter circulated copies of Alex's lengthy memo (which subsequently formed the basis for a law journal article) so that the entire Court would have the benefit of the work. During a discussion of such memorandum Justice Reed and I first had a vigorous discussion regarding the validity of his view that the cases presented solely an issue of "due process" and that the "equal protection clause" was not controlling. An interesting aspect to me of developments was the fact that George was not assigned any jobs related to the decision nor invited to join in the discussions the Justice and I had regarding the cases. Since he was more sympathetic with reaffirmation of Plessy v. Ferguson, while the Justice never so stated, this arrangement convinced me that Justice Reed was not looking for support but analysis and that he welcomed the challenge of answering my arguments.

One day during this period the Justice handed me a note headed "overruled–segregation"–listing the popular names of several famous cases that had been overruled by the Court–and directing "see Reed's Texas Primary Case and bring up to date." Apparently the prior evening he had gotten an urge to include in his opinion a footnote bringing up to date a list of occasions when the Court had overruled prior decisions which he had included in Smith v. Allwright, a case in which he had written the opinion holding party primaries to constitute state action. Actually, upon checking I found that the footnote in Smith had not been exhaustive, but also found that an exhaustive list had been included in a footnote to a 1931 opinion. I therefore prepared a table showing all cases subsequently overruled including details as to the vote in both the overruling and overruled case and the number of years the latter had been on the books. Parenthetically such table did not go to waste even though not employed as intended; Justice Douglas heard that the list was prepared and he obtained a copy and used it in some writing he was doing.

On September 7, 1953 an event occurred which had a profound effect on the segregation decisions–Chief Justice Vinson died suddenly of a heart attack. I had only met the Chief briefly a couple of times and my only reaction to him was as probably the least handsome man I had ever seen. Justice Reed was clearly shaken by Vinson's death: not only had he lost a colleague on the bench but a close friend. In part their friendship was based on the fact that they both came from Kentucky, but it was obviously also based on a similarity of viewpoints on issues before the Court. For some weeks after we attended the funeral for the Chief at Washington Cathedral Justice Reed did not again mention the segregation dissent. I don't suggest that the death was solely responsible for such silence, however. First, we were faced with the avalanche of petitions for cert. and appeals that had to be handed at the opening of the new term; second the Justice also was busy plowing through records of cases scheduled for oral argument during the first weeks of the term; and third, everyone at the Court was concerned with the appointment of a new Chief Justice.

Rearguments of the segregation cases had been scheduled for October 12th, shortly after opening of the term. The Attorney General of the United States filed a request for postponement, none of the parties objected, and the Court accordingly rescheduled the hearings for the week of December 7th. By the time such hearings rolled around we had already had published one majority opinion and two dissents; we had circulated another majority opinion but its issuance was awaiting a dissent from Justice Black; and I was in the midst of doing a draft of a monstrous opinion, hopefully for a majority, in a group of labor cases which had been reargued at the outset of the term. In short, there was little time available to spend on anything but urgent work.

In early November the Clerk's office did circulate the lengthy briefs submitted by the parties and the U.S. Attorney General on the questions posed by the Court in its June order. The Government's brief and appendix alone comprised almost 600 pages. I did not even attempt to study all the historical details presented. It was interesting to note, however, that from the same history the attorneys for the several states argued that it was clear that the drafters of the Fourteenth Amendment and the states that ratified it did not intend to outlaw segregation and the attorneys for the Negro children found the contrary result obvious. The U.S. Attorney General, on the other hand, like Alex Bickel submitted that no firm conclusion regarding the intent of Congress or the state legislatures could be drawn from the available historical materials.

After he had found time to read these briefs, Justice Reed asked me to prepare three memoranda in form usable as footnotes to an opinion: the first showing that segregation was practiced in many of the States that ratified the Fourteenth Amendment and such practice was continued without challenge thereafter; the second was to trace the history of segregation in the District of Columbia; and the third to assemble evidence from the legislative history of the amendment in Congress showing that there was not a common understanding that the amendment would require an alteration of segregation practices.

At about this same time the Justice also suggested that he would like to see any materials that might be available indicating the attitude of the Catholic church through the years toward segregation. On this latter project I sought the aid of George since he had attended Georgetown and was a Catholic and he promptly came up with copies of the several pronouncements of his Church on the subject.

I was too busy to afford the luxury of attending but a small portion of the rearguments of the cases. There are cubicles on the side of the courtroom in front reserved for clerks and court personnel or guests of the Justices which made it possible for us to enter the Court for a few minutes and leave unobtrusively, and they also had the advantage of being in a position that enabled one to hear what was going on. Nothing in the oral arguments persuaded the Justice that he should change his position. However, it had become apparent to him by this time that he no longer could expect to have anybody join his dissent. He told me that the new Chief was with the majority and he was alone. We had several discussions about the propriety of one man dissents during which I took the position that a sole dissent not only would be a useless gesture but a disservice to the Court as an institution. One effect of these discussions appears in an otherwise insignificant decision which was handed down in January, 1954. Justice Reed wrote a short solo dissent in US. v. Lindsay which opened with a justification as follows:

I agreed that such a dissent could serve a purpose but pointed out that such consideration would not be present in the segregation cases.

Any idea I might have had that the Justice was giving up on his dissent was shattered when the Justice gave me another "footnote project." He asked me to prepare a memorandum regarding segregation in the armed forces which he indicated he would use to support the statement that in an area where the executive branch of the federal government clearly had power to prohibit segregation, it did not act until recently and then sought to accomplish integration by a gradual process. I have a copy of the memo I submitted–the original went into a folder marked "segregation" which the Justice kept in his locked files.

By this time I had become an ardent advocate. On several occasions somewhat in jest the Justice needled me about my apparently having become as sure of the error of his ideas as were some of his colleagues. He also remarked about the fact that he hadn't even found it worthwhile discussing the subject with his clerks of the prior term since they were so adamant in their convictions on the subject.

During the Court recess in February I first actually saw a draft of the dissent the Justice planned to write. I do not know whether such draft had just been written or was written during the summer or the prior term, but I suspect it was prepared during the summer. I also do not know how many other drafts or notes had been written by the Justice. What happened was that the Justice handed me some yellow sheets containing his writing and asked me what I thought of it. I immediately took the sheets to my typewriter and made a copy on legal paper triple spaced. I then made comments on the sheet which I used in our later discussion of the draft which I returned to him. This is my copy and as far as I know this represents the totality of what was written of the proposed dissent:

During our discussion I told him that his reasoning was unclear to me and particularly his transition from equal protection to due process. I argued that just because only due process was involved in the D.C. case (the equal protection clause only applies to states),it did not seem to me that he could avoid meeting the issue whether separate but equal schools violate equal protection. I told him that while I felt a logical and persuasive argument based on historical materials could be made to support the separate but equal doctrine, his approach seemed to me to evade the key issue.

During the course of this discussion I referred to the importance of a decision rejecting segregation to our country's position in the community of nations. I do not recall the Justice's exact words, but the substance of his reply was that he had been hearing considerable on that subject and it was causing him much thought although it should be irrelevant. As I think back on the period involved, I recall that the Justice was obviously very tired and was feeling the weight of his position. He had just celebrated his 15th anniversary on the court and he was only months away from his seventieth birthday after which he would be eligible to retire at full pay.

If the Justice ever wrote another sentence of his proposed dissent, I never saw it or heard of it. While the subject of the segregation cases was mentioned on several occasions thereafter prior to the publication of the Court's opinions–as when he got a letter from the head of a Kentucky school board requesting advance information on how the cases were going to be decided because he needed time to make plans–none of the discussions related to the proposed dissent. Justice Reed never discussed the form of the Court's opinions with me prior to their issuance nor did any of the clerks reveal that other Justices had discussed drafts of opinions with them.

Justice Jackson suffered a heart attack on March 30, 1954. It came as a complete surprise to all of us since he appeared to be in his usual good humor immediately before it occurred. I believe the heart attack delayed delivery of the segregation decisions; in any event, he left the hospital to be present on May 17th and it is my impression they were held up until Justice Jackson was able to be present. However, the timing of issuance of the opinions was such a well kept secret that I am not certain any unplanned delay occurred. The law clerks and secretaries usually knew after each Saturday conference what decisions would be handed down the following Monday. However, the Justices were so careful not to reveal their plans with regard to the segregation decisions that most of the law clerks and secretaries were not alerted that the decisions would be handed down on May 17 and many of my colleagues missed the occasion. The courtroom was crowded as the Justices strolled through the velvet curtains and assumed their distinctive seats that historic Monday. However, I feel certain that no one in the crowd – including the government attorneys and newspaper writers– had any knowledge what was about to occur.

All of you I am sure are familiar with the decision in Brown v. Board of Education–a very appropriate title–and Bolling v. Sharpe, the former dealing with the cases from Virginia, Delaware, South Carolina and Kansas and the latter decision dealing with the D.C.

case where the petitioners were forced to rely solely on the due process clause. The spectators even though amazingly silent had to strain to hear Earl Warren's words as he read the text of the two opinions overruling Plessy v. Ferguson and holding that school segregation violates not only the equal protection clause but also the due process clause.

Editorialists, reporters, commentators, and alleged experts on constitutional law had a field day analyzing the decisions and such analysis and criticism continues. While the facts that the opinions were signed and delivered by the new Chief Justice was no great surprise in view of his prerogative, being in the majority, of selecting the author, the fact that only the two opinions were filed was a surprise not only to the press and students of the Court but to most of the secretaries and law clerks. The absence of both concurring and dissenting opinions was virtually unpredicted. In my view, the unanimity of the Court on the decisions was far more significant than the substantive aspects of the decisions on which the commentators spent most of their efforts.

May 17th did not conclude the Supreme Court's work on the segregation cases. One significant aspect of the decisions was that they merely announced the law, but ordered further argument during the following term on the issue of the scope of the decrees to be entered. At the Justice's request I had the librarian order newspapers from a selected group of cities for the weeks immediately following the decisions and I collected all comments regarding the decisions. He also requested certain other reading materials dealing with problems involved in accomplishing integration. He particularly mentioned he would like to see any reports regarding the effect of integration on Negro teachers since he felt integration must have a particularly severe impact on Negro teachers. I scanned several loads of materials produced by the very efficient library and selected those I thought the Justice might like to peruse. However, I guess the Justice had had enough of the subject because he did not attempt to examine the collected materials prior to departing from Washington shortly after the end of the term.

We did have a further discussion before he departed regarding the remaining question and on this issue we were in agreement–we both felt that time was important and that the problem differed in different communities and sections. A few days before he departed the Justice informed me that he had told the Chief of our collection of materials and he asked me to make the materials available to the Chief He also stated that the Chief indicated he would like to discuss the cases with me. I had had several innocuous conversations with the Chief during the term, but during such term it was common knowledge that Warren, unlike some other justices, carefully avoided letting himself be exposed to discussions of cases with other justices' clerks.

My remaining work on the segregation cases is summarized in a memo I prepared for the Justice before I departed for New Haven. It reads:

As you all know, after further argument and passage of another year the Court on May 31, 1955, entered decrees remanding all of the cases (except that from Delaware where immediate integration had been ordered by the State Court) to the several lower courts involved with directions to accomplish integration "with all deliberate speed" taking into consideration local problems. This action was again unanimous.

During the few weeks of the term between May 17th and adjournment early in June Justice Reed avoided becoming involved in any detailed discussions regarding the considerations that led to abandonment of his dissent and his joinder of the Court's opinions. It was not until almost three years later after his retirement from the Court when I visited the Justice that he and I had a really frank discussion about such subject. Being in Washington on other business, I dropped by the Supreme Court and met the Justice in his new suite in the front of the marble palace. He was much involved with problems arising from his recent and very temporary appointment by President Eisenhower as Chairman of the newly created Civil Rights Commission. The Justice reminisced about all the work we had done on the segregation dissent and I asked him if he regretted having abandoned it. He replied that he did not and that it would have been very bad not to have had a unanimous decision. I suggested that he would have been a hero to a lot of people and he replied only that he still thought he had the better of the argument on the law but that it was more important that there be unanimity in view of the importance of the decision.

I asked him if he felt the segregation decisions were the most important decisions during his tenure on the Court–which covered the dynamic years from 1939 through 1956. He replied that there was no question in his mind but that Brown v. Bd. so ranked and he added that if it was not the most important decision in the entire history of the Court, it was very close to that position. I believe that most historians will agree with the Justice's evaluation.

I also feel that Justice Reed's action on the decision was an act of judicial statesmanship. The question that concerns me is whether it is desirable that the story as I have told it to you should remain unpublished. During the twelve years since the decisions were announced a story has been circulating that full credit for the decisions and the unanimity of the Court is due Chief Justice Warren. Particularly in the community of law teachers and students have I found such view propagated. I generally visit Yale Law School as a moot court judge each year and have on several such occasions listened with some dismay to comments by students regarding the Warren Court and almost inevitably he is credited with marshalling the Justices to unanimity in the segregation cases. The very fact that some last ditch segregationist groups and the Birchers have chosen Warren for their primary target on the Supreme Court has advanced the myth that he somehow coerced the other Justices to unanimity.

It is undoubtedly true that there have been occasions since the Supreme Court first convened when its reported decisions did not accurately reflect divisions of the Court. President Jefferson accused Chief Justice Marshall of deceiving the public as to unanimity on his court by curtailing individual opinions. It is also well known that Chief Justice Hughes sometimes voted for decisions with which he disagreed in order to avoid an appearance of conflict on his Court. And disclosures contained in books regarding other Justices provide evidence that other Justices on occasions have succumbed to pressures from their brethren or their Chief Justice and allowed their votes to be announced as in favor of decisions with which they disagreed.

The myth growing about Chief Justice Warren necessarily involves the contention that he somehow coerced or persuaded Justice Reed and other potential dissenters into making the decisions unanimous. I think it fair to assume that Chief Justice Warren will not dispel such myth, especially while he remains on the Court. Similarly, it would seem highly unlikely that the three other veterans of the 1953 term remaining on the Court (Justices Black, Douglas and Clark) would find it appropriate to discuss the segregation cases, even if they remember or ever knew the details of what occurred.

Four of the Justices comprising the Court which decided Brown v. Bd. are now deceased–Justice Frankfurter, Jackson, Minton and Burton. To my knowledge the only one of such quartet who made a public statement regarding the cases prior to his death was Justice Minton. In an interview on the tenth anniversary of the decision he stated that the decisions were "inevitable" and were "coming for a long time" but he gave no clue regarding what occurred behind the scenes.

I think it likely that a version of the facts exists in papers of Justice Frankfurter and I know that Justice Reed was interviewed at length regarding his career by a professor from Columbia University. The Justice indicated to me he had imposed the condition on the Columbia project that all information provided be held confidential for fifteen years after his death. The Justice noted that he had been quizzed about people he had known in government but he did not indicate whether he had discussed the segregation cases or, if so, how much he revealed.

Justice Reed has never told me that it is his desire that the facts I have related to you be forever confidential. It was, of course, understood by all law clerks that during their tenure they should keep confidential everything that went on at the Court.

On the other hand, no rule of the Court, nothing in the clerks' oath or employment agreement, and no request by Justice Reed dealt with the propriety of revelation of information regarding the Court after such information has passed into the realm of historical material. At the end of my tenure, I considered asking the Justice whether he wanted my folder marked "segregation" but I had the feeling that such would result in destruction of the materials and I had doubts such irrevocable result was desirable. In short, I had the feeling that it might be desirable if such materials were preserved for history by a person outside the Court. Accordingly, I took the file with me and a couple of years after beginning practice I spent several winter evenings recording the details which I turned to in preparing for my talk tonight.

The main reason I never asked Justice Reed about his feelings regarding my eventual publication of the whole story was fear that he would indicate he preferred that the truth never be revealed. His secretary told me he destroyed most of his own collection of files relating to Supreme Court work after retiring from the Court and I would guess that my records are more complete than his anyhow Having harbored the foregoing concern about the Justice's attitude, I was considerably astonished in 1957 to receive a letter from the Director of the Rutgers University Press reading as follows

While I believe I could have construed this development (which I confirmed by contacting the Justice) as giving me a free hand to reveal whatever I felt appropriate, I did not in 1957 feel that it was appropriate that any of the inside story be told. Accordingly, I agreed to review the manuscript only for factual errors and only on the condition it would not be expected that I reveal any additional information I possessed regarding the decisions or point out errors in analysis of what occurred at the Court. Justice Reed's role with respect to the Rutgers Press Book has led me to wonder on several occasions whether he has counted on me eventually putting the record straight.

In any event, until tonight I had never told this full story–and tonight I tell it with the trust that it will remain confidential and with the expectation that you gentlemen will give me the benefit of your wisdom regarding whether and when it should be revealed. Actually, I reserve little doubt that eventually the true facts should be available to historians, even if not until long after I am gone. So the question that really concerns me is "when."

For many years I felt that revelation of the facts would result in a setback to the civil rights movement by giving new ammunition to the segregationists. In short, publication might eradicate at least some of the benefits that unanimity in the decisions had attained. After twelve years such seems less likely and maybe it would be desirable to provide an example of statesmanship for some of the leaders on both sides of the civil rights movements to attempt to emulate.

I recently clipped a newspaper article wherein Ted Sorensen was quoted as stating that the reason he wrote The Kennedy I Knew was "to dispel myths about the late President." Is it really any more desirable that myths be dispelled about a president dead less than two years than about one of the most important judicial decisions in the history of man." Gentlemen, tell me if you will.

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Editor's Note: When the author delivered his talk in 1966, he was concerned that Justice Reed's consideration of a dissent in Brown v. Board of Education might have been construed as providing moral support to segregation. This concern was put to rest by the release of the following correspondence between Justices Frankfurter and reed in may, 1954.