by Jim Newton
5 William O. Douglas and Harold Burton notes on conference, Dec. 12, 1953, LOC, MD, William O. Douglas papers (Segregation Cases file) and Harold F. Burton papers. See also Del Dickson, The Supreme Court in Conference, p. 654.
6 William O. Douglas and Harold Burton notes on conference, Dec. 12, 1953, LOC, MD, William O. Douglas papers (Segregation Cases file) and Harold F. Burton papers.
7 William O. Douglas notes on conference, Dec. 12, 1953, LOC, MD, William O. Douglas papers, Segregation Cases file. Douglas’s notes list Black as “absent.”
8 Memoirs, p. 2.
9 Interviewed by Drew Pearson in 1967, Warren gave a truer account. Although that interview never was published, Pearson’s notes indicate the lineup as Warren saw it. “Minton, Burton, no trouble . . .”Pearson wrote. “Clark a little trouble. Stanley Reed lot of trouble.” Pearson interview notes, Aug. 21, 1967, Pearson papers, LBJ Library.
10 William O. Douglas notes on conference, Dec. 12, 1953, LOC, MD, William O. Douglas papers, Segregation Cases file.
11 Ibid.
12 Mark V. Tushnet, Making Civil Rights Law, p. 211.
13 Douglas, “Memorandum for the File in re Segregation Cases,” May 17, 1954, LOC, MD, William O. Douglas papers, Segregation Cases file.
14 Douglas conference notes, Dec. 12, 1953, LOC, MD, William O. Douglas papers, Segregation Cases file.
15 Memoirs, p. 285. See also Burton diary and Douglas notes.
16 Warren’s calendars, as maintained by the LOC, MD, begin in early 1954; Burton’s diaries, however, cover late 1953 as well.
17 Burton diary entries for Dec. 12, 14, 15, 16, 17, and 18, 1953, LOC, MD, Harold H. Burton papers, 1953 Diaries.
18 Burton diary entry, Jan. 15, 1954, LOC, MD, Harold H. Burton papers, 1954 Diaries.
19 Burton diary entry, Jan. 16, 1954, LOC, MD, Harold H. Burton papers, 1954 Diaries.
20 Eisenhower invitation to Warren, Jan. 12, 1954, LOC, MD, Warren papers, Personal File, Presidents’ Correspondence, 1953-1963.
21 Memoirs, p. 291. Some others, in relating this exchange, have recorded that Eisenhower used the term “bucks,” rather than “Negroes,” supporting that claim by noting that Eisenhower on other occasions did resort to that slur. In this case, however, only Eisenhower and Warren were parties to the remark, and since Eisenhower never acknowledged it and Warren recorded it this way, there is no credible evidence that Eisenhower used the slur.
22 Jack Slater, “1954 Revisited,” Ebony, May 1974, p. 126. The exact date of this trip is unknown, as it does not appear on Warren’s schedules for early 1954. Warren’s weekends were often left open, however, so it could have taken place then, or in the fall of 1953, before the period in which his schedules were saved.
23 Author interview with Judge James Lee Warren, Nov. 24, 2003.
24 “Supreme Court Law Clerks’ Recollections of Brown v. Board of Education,” St. John’s Law Review, volume 78 (Summer 2004), p. 529. Some analysts have surmised that Jackson drafted his memo in early 1954, but his clerk E. Barrett Prettyman, Jr., recalls that he began on December 11, 1953. An uncirculated memo among Jackson’s papers is dated December 7, 1953, just a few days before the December 12 conference.
25 Jackson memo on segregation cases, Dec. 7, 1953, LOC, MD, Jackson papers, Legal file, Supreme Court, Segregation cases. Subsequent drafts in January, February and March are also in the file.
26 Undated Prettyman memorandum to Jackson, “Re Nos. 1-4,” LOC, MD, Jackson papers, Legal file, Supreme Court, Segregation cases.
27 “Supreme Court Law Clerks’ Recollections of Brown v. Board of Education,” p. 545.
28 Ibid., p. 543.
29 Undated memorandum. This draft, written in Warren’s hand, is contained with his papers at the LOC, MD, Warren papers, segregation case file.
30 Author interview with Earl Pollock, Jan. 10, 2005. The date comes from “Supreme Court Law Clerks’ Recollections of Brown v. Board of Education,” p. 551.
31 Author interview with Earl Pollock, Jan. 10, 2005.
32 Ibid.
33 “Supreme Court Law Clerks’ Recollections of Brown v. Board of Education,” p. 550.
34 Bolling v. Sharpe, 347 U.S. 497 (1954). Also author interview with Earl Pollock, Jan. 10, 2005.
35 Bolling v. Sharpe, 347 U.S. 497 (1954).
36 “Supreme Court Law Clerks’ Recollections of Brown v. Board of Education,” p. 552.
37 Burton diary entry, May 8, 1954. LOC, MD, Harold H. Burton papers, 1954 Diaries.
38 Warren letter to Jackson, April 2, 1954, LOC, MD, Robert Jackson papers, General correspondence file, Warren folder.
39 Warren schedule, May 13, 1954, LOC, MD, Earl Warren papers, Personal file, 1954 Calendars.
40 “Supreme Court Law Clerks’ Recollections of Brown v. Board of Education,” pp. 553-55.
41 Ibid., p. 553.
42 Richard Kluger, Simple Justice, p. 698.
43 Burton diary entry, May 8, 1954, LOC, MD, Harold H. Burton papers, 1954 Diaries. Burton’s diary reflects his observations before the final vote was taken, on May 15, but after Burton had concluded that the draft was likely to win a united Court.
44 Ibid.
45 Chief Justice calendars, May 16, 1954, LOC, MD, Warren papers, Personal file, Warren’s schedule lists their hike as along the “B & O Canal,” but that is undoubtedly a typo.
46 Bruce Allen Murphy, Wild Bill, p. 331.
47 New York Times, May 18, 1954. The Times recorded Nina’s presence but not Helen MacGregor’s. Her recollection comes from the oral history interview with her in A Career in Public Service with Earl Warren , p. 129.
48 Memoirs, p. 286.
49 “Supreme Court Law Clerks’ Recollections of Brown v. Board of Education,” p. 559.
50 New York Times, May 18, 1954.
51 Memoirs, p. 3.
52 Cheryl Brown Henderson, The College Board Review, issue 200 (Fall 2003), pp. 6-11.
53 Taylor Branch, Parting the Waters, p. 112.
54 Martin Luther King, Jr., The Papers of Martin Luther King, Jr., vol. 3, pp. 471-79.
CHAPTER 19. RESISTANCE
1 Wallace’s speech of June 11, 1963, is preserved at the Alabama Department of Archives and History and is available through its website: http://www.archives.state.al.us/index.html.
2 New York Times, March 4, 1954.
3 New York Times, May 18, 1954.
4 Ibid. Reston did, however, misspell his name, writing it as “Cardoza”; the mistake slipped by the Times’s copy desk. Although Reston did not disclose the source of his insight into the Court, it likely was Frankfurter, with whom he was close. Frankfurter spoke frequently with the columnist and once suggested that he emulate the justices and hire a clerk. Reston took that advice and for more than three decades hired one young college graduate a year as his assistant. I held that position for one year, beginning in the fall of 1985.
5 Brown v. Board of Education, 347 U.S. 483 (1954) (footnote 11).
6 Elmo Richardson, The Presidency of Dwight D. Eisenhower, p. 110.
7 Eisenhower to Hazlett, Oct. 23, 1954, Eisenhower Library, Civil Rights file.
8 Memoirs, p. 292.
9 Reed memo to conference, March 28, 1955, Harold Burton copy, LOC, MD, Harold H. Burton papers, Warren correspondence file, 1954-1955.
10 Bernard Schwartz, Super Chief, pp. 113-14. This exchange took place in open court and has been widely documented; Tushnet and Powe, for instance, each include accounts of it in their works. For the specific language and nonverbal responses of the participants, I have drawn principally from Schwartz.
11 Frankfurter conference notes (typewritten), April 16, 1955, LOC, MD, Felix Frankfurter papers, Legal File, Segregation case file, 1955. These thoughts are reflected also in Douglas’s conference notes for the same session, which are mistakenly dated April 16, 1954, when the conference actually took place in 1955.
12 Ibid.
13 Ibid.
14 Ibid.
15 Douglas conferen
ce notes, April 16, [1955], LOC, MD, Douglas papers, Supreme Court file, Segregation case file.
16 Ibid.
17 Ibid.
18 Frankfurter letter to Philip Elman, June 4, 1947, LOC, MD, Felix Frankfurter papers, General Correspondence, Elman file (Reel 32).
19 Brown v. Board of Education, 349 U.S. 294 (1955).
20 Lucas A. Powe, Jr., The Warren Court and American Politics, p. 55.
21 Warren schedules, Sept. 30 and Oct. 1, 1955, LOC, MD, Warren papers, Personal file.
22 Warren handwritten note and typewritten statement, April 15, 1955, LOC, MD, Personal files, Presidential Ambitions Disavowed, 1955-56.
23 Drew Pearson, Diaries 1949-1959, entry for Feb. 19, 1949, p. 23.
24 Ibid., entry for Oct. 27, 1953, p. 280.
25 Shirley S. Johnson letter to Warren, Oct. 6, 1955, LOC, MD, Personal files, Presidential Ambitions Disavowed, 1955-1956.
26 Schwartz, Super Chief, p. 126.
27 Han Say Naim v. Ruby Elaine Naim, 197 Va. 80; 87 S.E. 2d 749 (1955).
28 Naim v. Naim, 350 U.S. 985 (1956).
29 Author interview with Sam Stern, May 10, 2005.
30 Irvine v. California, 347 U.S. 128 (1954). Details not included in the opinion come from Jackson’s case file, LOC, MD, Jackson papers, Legal file, Supreme Court, Irvine file.
31 Irvine v. California, 347 U.S. 128 (1954).
32 Ibid.
33 Hoover to Tolson, Ladd, and Nichols, Feb. 8, 1954, FBI document 44-7129-1, Charns, Warren files, Folder 90.
34 G. Edward White, Earl Warren: A Public Life, p. 266.
35 Nichols to Tolson, Sept. 2, 1954, FBI document 94-1-5619-217 (and follow-up memos documenting the effort).
36 Los Angeles Special Agent in Charge to Hoover, Jan. 26, 1954, FBI document 94-1-5619-196. Also Nichols to Tolson, Feb. 1, 1954, same document number.
37 Nichols to Tolson, Nov. 1, 1955, FBI document 94-5619-224. This favor also is noted in a November 6, 1978, memo from McCreight to Bassett, alerting Bureau officials that a request for information from the New York Times might cause the FBI’s providing “background information regarding competence and reputation of future sons-in-law” to Warren to become known publicly. It did not at that time, as the New York Times apparently did not pursue the request. While the 1978 memo uses the plural “sons-in-law,” there is no evidence in the FBI files as released that the Bureau performed such a task other than in the case of Dr. Brien. Finally, it is worth adding that when the FBI released its files to Charns, enough information was included in this file to make its context clear. In 2006, when the same documents were released to me, they were so heavily redacted as to be incomprehensible without access to Charns’s papers.
38 The Southern Manifesto, March 1956, copy at Carl Vinson Institute of Government, University of Georgia (taken from Vinson Institute website).
39 Pennsylvania v. Nelson, 350 U.S. 497 (1956).
40 Although many analysts, historians, and commentators have reviewed this period, none has ever capsulated it more carefully or persuasively than Lucas Powe in The Warren Court and American Politics. My account relies on many sources, but Powe in particular.
41 Resolution Requesting Impeachment of Six Members of the United States Supreme Court, adopted by the General Assembly of Georgia, Feb. 22, 1957.
42 Undated pamphlet produced by the Cinema Educational Guild, Inc., Hollywood, California, copy in author’s possession.
43 Griffin v. Illinois, 351 U.S. 12 (1956).
44 New York Times, May 18, 1956. See also Schwartz, Super Chief, p. 183, and Powe, The Warren Court and American Politics, p. 88.
45 Associated Press, June 27, 1956.
46 Field report, July 15, 1956, FBI document 89-816-2.
47 Washington Post, July 26, 1956, FBI document 89-816-A.
48 Powe, The Warren Court and American Politics, p. 62.
49 Warren schedule, July 7, 1956, LOC, MD, Earl Warren papers, Personal file, 1956 Calendars.
50 Although Warren did not publicly reveal his vote, his son Earl Jr. is among many who recalled his fondness and support for Stevenson. The elder Warren told Pat Brown in 1960 that he believed the Democrats should select Stevenson as well. See oral history interview with Brown, Years of Growth, p. 250.
51 Herbert Brownell, Advising Ike, p. 180.
52 Ibid.
53 William Brennan, included in The Warren Court, A Retrospective, p. 10.
54 Brennan letter to Bernard Schwartz, Oct. 15, 1980, LOC, MD, Brennan papers, Part II, Correspondence, Bernard Schwartz file. Brennan described the scene to Schwartz after Schwartz had incorrectly written up an account of it for his book Super Chief. The above reflects Brennan’s recollection.
55 Oral history interview with Bartley Cavanaugh, Hunting and Fishing with Earl Warren, p. 30.
CHAPTER 20. “DUMB SWEDE”
1 Peter Irons, The Courage of Their Convictions, p. 104.
2 Roger K. Newman, “The Warren Court and American Politics: An Impressionistic Appreciation,” p. 673. See also New York Times Magazine. Oct. 5, 1986.
3 U.S. v. E. I. DuPont, 351 U.S. 377 (1956).
4 Bernard Schwartz, Super Chief, p. 222.
5 United States v. DuPont, 353 U.S. 586 (1957) (dissent).
6 Undated tribute to Warren prepared by Douglas after Warren’s death in 1974, LOC, MD, William O. Douglas papers, Part 1, Subject files, Earl Warren.
7 Frankfurter note to Harlan, April 26, 1957, PU, ML, Harlan papers, Konigsberg v. the State Bar of California file.
8 Hand letter to Frankfurter, Jan. 1, 1956, LOC, MD, Felix Frankfurter papers, General correspondence, Learned Hand (Reels 39-40).
9 Hand letter to Frankfurter, Oct. 25, 1956, LOC, MD, Felix Frankfurter papers, General correspondence, Learned Hand (Reels 39-40).
10 Ibid.
11 Undated memo in papers of Drew Pearson, LBJ Library, Personal Papers of Drew Pearson, File #2. In the memo, Pearson notes that Frankfurter used the term with his then clerk Phil Graham, later publisher of the Washington Post.
12 Frankfurter letter to Harlan, Dec. 26, 1960, PU, ML, Harlan papers, Frankfurter correspondence file for 1960.
13 Author interview with Sam Stern, May 10, 2005. See also Roger K. Newman, “The Warren Court and American Politics: An Impressionistic Appreciation,” p. 676, note 82.
14 Schwartz, Super Chief, p. 257.
15 Del Dickson, The Supreme Court in Conference, p. 560. The excerpt is taken from Douglas’s notes from a 1962 conference discussion over Machiboda v. United States.
16 Warren schedule, Nov. 25, 1954, LOC, MD, Earl Warren papers, Personal file, 1954 Calendars.
17 Author interview with Virginia Daly, May 31, 2004.
18 Roger K. Newman, “The Warren Court and American Politics: An Impressionistic Appreciation,” p. 686.
19 Oral history interview with Jim Warren. Eve Dillingham, Harlan’s daughter, confirms that her father had an extra clerk to assist him when his eyesight was failing.
20 Author interview with Douglas Kranwinkle, Jan. 21, 2005.
21 Author interview with Peter Ehrenhaft, Jan. 31, 2005.
22 Note in file, May 14, 1958, RNLB, Warren file, 1956-1962.
23 Author interview with William Brennan III, July 2003.
24 Mesarosh v. United States, 352 U.S. 1 (1956).
25 Jencks v. United States, 353 U.S. 657 (1957). Jencks was first argued on October 17, 1956.
26 Ibid.
27 Dickson, The Supreme Court in Conference, p. 557.
28 Jencks v. United States, 353 U.S. 657 (1957) (dissent).
29 Sweezy v. New Hampshire, 354 U.S. 234 (1957).
30 Lucas Powe, The Warren Court and American Politics, p. 96.
31 Watkins v. United States, 354 U.S. 178 (1957).
32 Ibid.
33 Undated note from Frankfurter to Harlan, PU, ML, Harlan papers, Watkins v. U.S. file.
34 Watkins v. United States, 354 U.S. 178 (1957).
35 Ibid.
36 Bu
rton Crane letter to Warren, Feb. 21, 1954, LOC, MD, Warren papers, personal file, correspondence (confirmation file).
37 Watkins v. United States, 354 U.S. 178 (1957).
38 Service v. Dulles et al, 354 U.S. 363 (1957).
39 Yates v. United States, 354 U.S. 298 (1957).
40 Mohr to Tolson, May 9, 1958, FBI document 62-40772-400, Charns, Warren files, Folder 77.
41 Eisenhower letter to Warren, June 21, 1957, LOC, MD, Warren papers, Personal file, Presidents’ correspondence, 1953-1963. The specific quote “never been as mad” comes from The Papers of Dwight David Eisenhower, vol. 28, document 211, bibliographic note 1.
42 Eisenhower letter to Warren, June 21, 1957, LOC, MD, Warren papers, Personal file, Presidents’ correspondence, 1953-1963.
43 Warren schedule, June 21-24, 1957, LOC, MD, Earl Warren papers, Personal file, 1957 Calendars.
44 Warren letter to Eisenhower, July 15, 1957, LOC, MD, Warren papers, Personal file, Presidents’ correspondence, 1953-1963.
45 Jack Harrison Pollack, Earl Warren: The Judge Who Changed America, p. 192.
46 Author interview with Peter Ehrenhaft, Jan. 31, 2005.
47 Memoirs, p. 322.
48 Ibid.
49 Warren schedule, Sept. 4, 1957, LOC, MD, Earl Warren papers, Personal file, 1957 Calendars.
50 Memoirs, p. 329.
51 Stephen Ambrose, Eisenhower: Soldier and President, pp. 443-44.
52 Cooper v. Aaron, 358 U.S. 1 (1958).
53 Ibid.
54 Statement by Orval Faubus, Sept. 14, 1957, released after meeting with Eisenhower, Eisenhower Library, Little Rock school integration crisis file (available in online holdings).
55 Mark V. Tushnet, Making Civil Rights Law, p. 258. Also Ambrose, Eisenhower: Soldier and President, p. 446; and Woodrow Wilson Mann telegram to Eisenhower, Sept. 23, 1957, Eisenhower Library, Little Rock School integration crisis file (available in online holdings).
56 Woodrow Wilson Mann telegram to Eisenhower, Sept. 24, 1957, Eisenhower Library, Little Rock school integration crisis file (available in online holdings).
57 Presidential Address from the White House, delivered Sept. 24, 1957, at nine P.M. Text from Eisenhower Library, Little Rock school integration crisis file (available in online holdings).
