Supreme Court Law Clerks' Recollections of Brown v. Board of Education II

Abstract:     
When the Supreme Court unanimously decided Brown v. Board of Education and Bolling v. Sharpe on May 17, 1954, it did not decree a remedy for the segregated public school systems that it was declaring to be unconstitutional. Instead, the Court restored the school cases to its docket for the coming Term and ordered further briefing and oral argument on questions relating to the appropriate remedy.

One year later, on May 31, 1955, the Supreme Court announced the decision that has come to be known as Brown II. The Court, again unanimously, decreed that it was remanding the cases to the trial courts that had heard them originally, and it ordered those courts to fashion decrees that would admit Negro students to schools on a non-discriminatory basis "with all deliberate speed."

On May 18, 2005, two weeks before the 50th anniversary of Brown II, the Robert H. Jackson Center in Jamestown, New York, and the Supreme Court Historical Society assembled four attorneys who served as Supreme Court law clerks during 1954-1955 for a discussion of Brown II. In this roundtable, the attorneys share recollections of experiences at the Supreme Court during that year, and of working in the judicial process that culminated in Brown II.

The introduction to this discussion traces the history of Brown v. Board of Education and its companion cases in the Supreme Court. It includes new discoveries, including circumstantial evidence that the Justices did not, contrary to Chief Justice Warren's memoir, actually vote on Brown I until March 1954; some detail on Gerald Gunther's central involvement in Brown II as Warren's law clerk; and information on the six law clerks who worked on special, undisclosed-to-the-parties factual research for the Justices as they considered the Brown II remedy question.

Keywords: Brown v. Board of Education, Bolling v. Sharpe, Chief Justice Earl Warren, Justice Hugo L. Black, Justice John M. Harlan, Justice Robert H. Jackson, Justice Stanley F. Reed, segregation, schools, Supreme Court of the United States, Supreme Court law clerks, Gerald Gunther, all deliberate speed

Accepted Paper Series