A People's History of the Supreme Court

by Peter Irons

  With two votes almost certainly against them, lawyers for the Communists—themselves under sentence for contempt—viewed the hearing as a trial run for the Supreme Court. But they hoped for a dissent by Judge Learned Hand, who had ruled in 1917 that governments could only punish direct incitement to criminal acts. Hand had argued with Justice Holmes over this issue in 1919, and lost when Holmes devised the “clear and present danger” test in his Schenck opinion. Hand did not agree with Holmes that leaflets against the World War I draft posed much danger to military recruitment, but the prospect of nuclear war in 1950 was a real danger in his mind. Hand expressed his fears in writing for the Second Circuit panel in the Dennis case. “We must not close our eyes to our position in the world,” he cautioned. Citing the Berlin airlift of 1949, Hand warned that any border flare-up or diplomatic incident might spark warfare. We do not understand how one could ask for a more probable danger,” he concluded.

  Still uneasy about the “clear and present danger” test, Hand devised his own First Amendment formula. Judges must ask, he wrote, “whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” Like an algebraic equation, the answer in each case depended upon the value assigned to each factor. The danger in Schenck was disruption of military recruitment in Philadelphia, while the danger in Dennis was violent overthrow of the national government. Totting up his mental calculations, Hand concluded that the “gravity” of revolution far outweighed the “improbability” that American Communists might overthrow the government.

  The Dennis appeal reached the Supreme Court at a bad time for the defendants. Arguments began on December 4, 1950; that morning’s headlines read, “Enemy Is Closing on Pyongyang” and “Scorched Earth Aids Chinese Korean Drive.” Against this backdrop of grim news. First Amendment appeals seemed unlikely to sway justices who read the newspapers. Conceding their clients’ sympathy for the Soviet Union, lawyers for the American Communists defended their right to voice their political views. Upholding the Second Circuit decision “would merely be a confession of our unwillingness to take the risk of permitting political dissent to be heard,” they wrote. “This is a suppression of the democratic process itself.”

  Government lawyers replied that Soviet-sponsored “aggression and disruption” around the world created a clear and present danger from domestic Communists. “Recent events in Korea” provided evidence of this danger, as did Communist participation in “such overt activities as sabotage and espionage” carried out “to assist the Soviet Union and its policies.” But the government’s brief offered no evidence of such acts; requiring proof that Communists were plotting insurrection, its authors stated, “would mean that the First Amendment protects their preparations until they are ready to attempt a seizure of power, or to act as a fifth column in time of crisis.”

  The oral arguments on both sides offered the justices more rhetoric than reflection. Speaking for the defendants, Abraham Isserman warned that upholding the Smith Act might prompt the government to prosecute “the 500,000 Americans who, according to J. Edgar Hoover, do the bidding of the Communist party.” He pointed to Senator Joseph McCarthy, the Red-hunting Wisconsin Republican whose charges that Communists “were shaping the policy of the State Department” sent tremors around the country. “Already men in high places have suffered from McCarthyism,” Isserman told the Court. He might have looked at Justice Frankfurter, whose former law clerk, Dean Acheson, was now secretary of state and McCarthy’s prime target. Solicitor General Philip Perlman, who had supported the NAACP in the Shelley and Sweatt cases, spoke for the government in Dennis. “When Justice Holmes and Brandeis talked about ‘clear and present danger,’” he said, “they were thinking about isolated agitators, not about these tightly organized, rigidly disciplined people, operating under orders from a foreign country.”

  The Supreme Court decided the Dennis case on June 4, 1951. Six justices voted to uphold the convictions and the Smith Act. President Roosevelt’s three most conservative judicial nominees—Felix Frankfurter, Stanley Reed, and Robert Jackson—joined three of Truman’s four conservatives—Fred Vinson, Harold Burton, and Sherman Minton. Justice Tom Clark, who had reluctantly approved the prosecutions as attorney general, took no part in the decision. Hugo Black and William Douglas, the Court’s First Amendment absolutists, wrote separate but equally pointed dissents.

  Chief Justice Vinson spoke for only three other justices in writing for the Court; Frankfurter and Jackson each wrote concurrences that avoided Vinson’s warm embrace of the “clear and present danger” test. Vinson had been reading the newspapers, and reports of “world crisis after crisis” alarmed him. Borrowing the “fire” metaphor that Justice Holmes first kindled in Schenck and Justice Sanford adopted in Gitlow, Vinson considered “the inflammable nature of world conditions” ample grounds for upholding the convictions, He conceded that it was “impossible to measure” the probability of revolution, or “the immediacy of a successful attempt,” but this did not trouble Vinson. He endorsed Judge Medina’s ruling that American Communists would attempt revolution “as speedily as circumstances would permit.” Party leaders would order an armed insurrection “when they thought the time was ripe.”

  Vinson gave a broad definition to the terms in the “clear and present danger” test. “Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited.” Vinson’s thinly veiled reference to the failed Nazi uprising against the German government in 1923, which started in a Munich beer hall, was intended to support his claim that “an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of revolutionists, is a sufficient evil for Congress to prevent.” Presumably Communists who gathered in beer halls near the party’s New York headquarters were plotting to storm City Hall. The Communist leaders were “properly and constitutionally convicted for violation of the Smith Act,” Vinson concluded.

  Justice Frankfurter, however, expected more from Vinson than uncritical endorsement of the Smith Act, making clear in concurrence his distaste for the law. Nonetheless, as in the earlier flag-salute cases, Frankfurter performed his judicial “duty” and deferred to the “reasonable” judgment of Congress. “It is not for us to decide how we would adjust the clash of interests which this case presents,” he wrote. The question marks that punctuated Frankfurter’s opinion underscored his doubts that the Communists had been “properly” convicted.

  Hugo Black had no doubts in the Dennis case. The Smith Act “is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids,” he replied. Black stressed that the Communist leaders “were not charged with any overt acts of any kind designed to overthrow the Government,” but had been convicted solely for their speech. Black rejected both the “clear and present danger” test and Frankfurter’s “reasonableness” test of legislation challenged on First Amendment grounds. “Public opinion being what it is now,” Black lamented, “few will protest the conviction of these Communist petitioners.” But he expressed hope that “in calmer times, when present pressures, passions, and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.”

  The passions and fears of the Cold War period subsided very slowly. Senator Joseph McCarthy made the fatal mistake of shifting his target from the State Department to the Pentagon. His charges of Red cells on army bases evaporated on national television, and the Senate censured him in December 1954 for his abusive conduct. McCarthy faded from view and died of alcoholism in 1957, but “McCarthyism” survived in the House Committee on Un-American Activities and the Senate Internal Security Subcommittee, until Congress finally abolished these Cold War relics in the 1970s.

  The
Supreme Court has never overruled Dennis, but later decisions have robbed it of any vitality. One month after Joe McCarthy died, the Court reversed the convictions of twelve “second-rank” Communist leaders. Justice John Marshall Harlan, grandson of the sole Plessy dissenter, wrote in Yates v. United States that the Smith Act was directed at “the advocacy of action, not ideas.” The government offered no evidence the Yates defendants had advocated revolutionary action. Even Justice Frankfurter joined Harlan’s opinion, confessing to friends that Senator McCarthy’s bully-boy tactics had sickened him. But the Smith Act remains on the books and “lies about like a loaded weapon,” to borrow the words of Justice Robert Jackson in his Korematsu dissent. Congress has not yet mustered the courage to finally disarm this dangerous law.

  29

  “Give Me the Colored Doll”

  The long road to the Supreme Court for black children began in Clarendon County, South Carolina, on July 28, 1947. Their journey ended on May 17, 1954, with the momentous ruling in Brown v. Board of Education of Topeka, Kansas. During this seven-year period, five cases that challenged racial segregation in public schools moved through the courts in four states and the District of Columbia. Oliver Brown, acting as “next friend” of his eight-year-old daughter Linda, was the first of twelve plaintiffs in the Topeka lawsuit that made his last name the best known in American constitutional history. But the Brown case was not the first that Thurgood Marshall and his staff of NAACP lawyers filed against school segregation. That distinction went to a suit against school officials in rural South Carolina; Harry Briggs, Sr., the “next friend” of his nine-year-old son Harry Jr., was the first of twenty plaintiffs in Briggs v. Elliott.

  Only a handful of Americans recognize the name of Harry Briggs, Jr., yet students in every American school read about Linda Brown and the landmark case brought on her behalf. A quirk of court scheduling put the Brown case before Briggs on the Supreme Court docket when the five school cases were combined for argument and decision. This historical accident has no real significance, but it reminds us that history reflects many accidents of time and place. The deeper forces of social change, however, move with little regard to names and dates. It does not really matter which name—Oliver Brown or Harry Briggs—appears in the caption of the school cases. What matters is that both men challenged their children’s segregation at a time when the Court was finally ready to confront the “separate but equal” doctrine of the Plessy decision.

  Thurgood Marshall had several good reasons for picking Clarendon County as the first target in his final assault on school segregation. First, segregation in the Deep South was deeply rooted in the region’s laws and customs; it stemmed from three centuries of slavery and Jim Crow discrimination. Second, NAACP lawyers could easily document the enormous disparities between Clarendon County’s black and white schools to point up the utter hypocrisy of “separate but equal” and its defenders. Third, Marshall wanted to acknowledge the courage of black parents who stood up for their children in a citadel of segregation like South Carolina, where politicians like Governor Strom Thurmond pandered to racial bigots. These are also good reasons for looking more closely at Clarendon County than at Topeka in following the school cases to the Supreme Court.

  Located on the flat plain between the swampy lowlands along the Atlantic coast and the rolling Piedmont hills in the west, Clarendon County in 1947 had some 32,000 residents, more than 70 percent of them black. All but a few black families lived on farms, but few owned their land. They raised cotton and worked as sharecroppers for white owners. More than two thirds of the black families earned less than a thousand dollars each year; more than a third of all blacks over ten could not read or write. Black children attended sixty-one ramshackle schools, most without plumbing or electricity. The county spent $179 for each white child in public school, but only $43 for each black child.

  On the surface, blacks and whites got along well in Clarendon Country. “We got a good bunch of nigras here,” said David McClary, who owned the biggest feed and livestock business in the county. “Colored have made wonderful progress down here,” echoed H. C. Carrigan, the twelve-term mayor of Summerton, a town of one thousand. “I have several farms, and they all have Negroes on them. I sharecrop with them, and they are all as happy as can be.” But not all the county’s blacks were happy. “Oh, there was a lot goin’ on that we didn’t like,” said Joseph Richburg, a black teacher, “but everything was fine on the face of it, so long as we kept saying, ‘Yes, sir’ and ‘No, sir’ and tipping our hat.”

  One black man in Clarendon county did not tip his hat to whites. The Rev J. A. DeLaine, pastor of the African Methodist Episcopal church in Summerton, also taught in a rural black school. His students walked to school along dirt roads, their clothes spattered with dust or mud by school buses that carried white children past them, The lack of buses for black children bothered DeLaine. During the summer of 1947, he attended a speech in Columbia, the state capital, by the Rev. James Hinton, president of the state’s NAACP chapters. Hinton told his listeners that South Carolina’s black schools were a disgrace, and would improve only if they forced whites to make them better. Hinton suggested they start with buses. And he challenged his audience. “No teacher or preacher in South Carolina has the courage,” he charged, “to find a plaintiff to challenge the legality of the discriminatory bus-transportation practices of this state.”

  J. A. DeLaine took the challenge. The first Sunday after returning to Summerton, he visited Levi Pearson, a black farmer with three children at the Scott’s Branch high school, nine miles from their home. Pearson owned his farm and was known for standing up to whites. He listened to DeLaine and agreed to stand up for his kids. DeLaine then drove back to Columbia and visited Harold Boulware, the state’s only black civil rights lawyer. He returned to Summerton with a two-page petition, which Levi Pearson signed. DeLaine then visited another preacher, the Rev. L. B. McCord, a Presbyterian pastor and the county’s school superintendent. The two men knew each other well. “I was one of McCord’s good niggers,” DeLaine said. But not after their meeting on July 28. The black teacher handed the white superintendent Pearson’s petition, demanding bus transportation “for use of the said children of your Petitioner and other Negro school children similarly situated.” McCord read it and told DeLaine the county had no money for buses for black children.

  After this rebuff, Harold Boulware wrote the school board that Levi Pearson had retained his legal services and asked for a hearing on his petition. He got no answer to this or subsequent letters. Finally, on March 16, 1948, Boulware filed suit in federal court, seeking an injunction to bar Clarendon County officials from making any “distinction on account of race or color” in busing children to school. But the case was dismissed in June 1948 because Pearson’s farm straddled the line between two school districts; he paid property taxes in one and his children attended school in another.

  Levi Pearson paid for his stand; every white-owned bank and store cut off his credit and no white farmer would rent him a harvester. His crops rotted in the field that fall. Whites told him to forget about buses, and finally gave him credit for next year’s crops. But he could not forget his children’s inferior schools. The next spring, in March 1949, Harold Boulware summoned Pearson and DeLaine to Columbia to meet another civil rights lawyer. Thurgood Marshall had come from New York to South Carolina, looking for plaintiffs willing to ask for more than buses. Marshall proposed a new lawsuit, demanding equal treatment in every area: buildings, teachers, books, and buses, The NAACP lawyer told Pearson and DeLaine that he wanted at least twenty plaintiffs, to spread the risk of retaliation. And he wanted Clarendon County, to expose the myth of “separate but equal” in South Carolina’s most unequal county.

  It took Pearson and DeLaine eight months to find twenty black parents willing to challenge the county’s white power structure. They got the last signature on November 11, 1949, and took the list to Boulware. He draf
ted a complaint and put names on the caption in alphabetical order. The first was Harry Briggs, a navy veteran with five children; his oldest boy was Harry Jr., whose name appeared first among the black children. Harry Sr. pumped gas and fixed cars at Mayor Carrigan’s Sinclair station in Summerton, and his wife, Liza, worked as a motel chambermaid. The same day he got the twenty names, Boulware drove to the federal courthouse in Charleston and filed the complaint—listing himself and Thurgood Marshall as counsel—in Briggs v. Elliott; the first defendant was Roderick Elliott, the county school board chairman.

  Word spread quickly in Clarendon County that “nigras” had sued the school board. Virtually every plaintiff paid a heavy price for joining the suit. Mayor Carrigan fired Harry Briggs, and the motel fired his wife. Bo Stukes lost his garage job; James Brown was fired by a trucking company; John McDonald, a combat veteran of Iwo’ Jima and Okinawa, lost his credit for farm equipment; and Lee Richardson had his farm mortgage foreclosed. Even Harry Briggs’s cow got arrested for stepping on a headstone in a white cemetery. Whites laughed at that little comedy, but blacks in Clarendon County found no humor in the spiteful response to their lawsuit.

  May 24, 1951, is one of those unremembered dates that marks a significant event. On that hot spring day in Clarendon County, Kenneth B. Clark visited the Scott’s Branch school near Summerton and met with sixteen black children between six and nine years old. He came with a box of four dolls, each about a foot high and dressed in diapers. Two dolls were boys and two were girls. They differed in one other way: two were pink and two were brown. One by one, Clark sat down with the youngsters and gave them instructions: “Give me the white doll.” “Give me the colored doll.” “Give me the Negro doll.” Clark then said, “Give me the doll you like to play with.” “Give me the doll that is the nice doll.” “Give me the doll that looks bad.” “Give me the doll that is a nice color.”