54 Pages Posted: 23 Mar 2006
On May 17, 1954, the Supreme Court decided in Brown v. Board of Education that state laws segregating public school children by race were unconstitutional. Chief Justice Earl Warren of course wrote Brown for a unanimous Court, and Brown is generally regarded as among the most significant decisions in United States history.
As the Supreme Court was considering Brown and its companion cases, the Justices agreed not to discuss them with others - not even their own law clerks. As a result, many of the thirty-six young men who worked as clerks during the Court's October Terms 1952 and 1953 were not privy to very much, in the segregation cases, of the Justices' thinking, work, discussions, votes and draft opinions. This secrecy system did, however, have exceptions. Some of the Justices, including Chief Justice Warren and Associate Justices Stanley F. Reed, Robert H. Jackson and Felix Frankfurter, gave assignments to and in varying ways confided in their respective law clerks as the Court wrestled with and ultimately decided the unconstitutionality of school segregation.
In late April 2004, a few weeks prior to Brown's 50th anniversary, the Robert H. Jackson Center in Jamestown, New York, assembled four attorneys, former law clerks to the Justices named above, for a group discussion of Brown. This was the first occasion on which these former clerks had, together, assembled and compared their recollections of the Brown decision-making process inside the Supreme Court.
In the discussion, edited and introduced for publication, these "insiders" explain how the Justices came to decide Brown as they did, individually and as a Court. The discussion illuminates particularly well the process and chronology of developments by which Chief Justice Warren wrote his Brown opinion and other Justices decided not to write separately and also not to dissent, resulting in the unanimous Court.
Keywords: Brown v. Board of Education, Chief Justice Earl Warren, Justice Felix Frankfurter, Justice Robert H. Jackson, Justice Stanley F. Reed, segregation, schools, Supreme Court of the United States, Supreme Court law clerks
Suggested Citation: Suggested Citation
Barrett, John Q. and Fassett, John David and Pollock, Earl E and Prettyman, E. Barrett and Sander, Frank E. A., Supreme Court Law Clerks' Recollections of Brown v. Board of Education. St. John's Law Review, Vol. 78, pp. 515-567, Summer 2004; St. John's Legal Studies Research Paper No. 06-0040. Available at SSRN: https://ssrn.com/abstract=892367