With All Deliberate Speed

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The rest of the court was enigmatic on the issue of racial segregation in public schools. Indianian Sherman Minton had been an administrative aide to President Franklin D. Roosevelt and a close friend of Harry S Truman, with whom he entered the Senate in 1935. He was appointed to the Supreme Court by President Truman in 1949. Nothing in his writings indicated his position in these segregation cases.

The New York Times described Justice Harold H. Burton, on his appointment to the Supreme Court in 1945, as a “liberal of marked independence.” As a justice, however, he seemed to lean toward a conservative stance; on civil rights he had voted both ways.

Justice Jackson, Solicitor General and Attorney General under Roosevelt, vigorous prosecutor of war criminals at Nuremberg, assumed the mantle of judicial restraint when he was appointed to the Supreme Court in 1941; he was hesitant to overrule state and federal enactments, believing, like his frequent judicial ally Justice Frankfurter, that undesirability could not be equated with unconstitutionality.

At the Senate hearings on his appointment to the Supreme Court in 1949, Justice Tom C. Clark, a Texas protégé of Senator Tom Connally and Representative Sam Rayburn, had been denounced by Negro groups for failing to protect Negro civil rights when he was Attorney General. Yet it was under Clark’s stewardship that the Justice Department began to file amicus curiae (friend of the court) briefs defining the administration’s legal positions; these consistently argued against racial discrimination and became a significant part of later civil-rights litigation. Clark had also, as president of the Federal Bar Association, demanded admission of Negro lawyers, and in 1950 had written a concurring opinion when the Supreme Court quashed a criminal indictment of a Negro on the grounds that Negroes had been discriminated against in the selection of grand jury panels. Clark’s record looked “liberal” in 1952; however, he had not yet had to face the question whether racial segregation in public schools denied “equal protection of the laws.”

Justice Stanley F. Reed came from the border state of Kentucky and had been Solicitor General under Roosevelt, arguing for the validity of NRA, TVA, the Wagner Act, and other of the President’s measures. Appointed to the Supreme Court in 1938, he had become somewhat conservative but had also written a vigorous defense of Negro voting rights in 1944. How Reed came to write that 1944 opinion reveals not a little of the political consideration that goes into a major decision of the Supreme Court.

At conference on January 15, 1944, the Supreme Court decided to declare the Texas exclusion of Negroes from primary elections unconstitutional. Felix Frankfurter was assigned to write the opinion. The case was called Smith v. Allwright.

”… That afternoon,” a Frankfurter memorandum reads, “Bob Jackson came to see me. … He thought it was a very great mistake to have me write the Allwright opinion. For a good part of the country the subject—Negro disenfranchisement —was in the domain of the irrational and we have to take account of such facts. At best it will be very unpalatable to the South and should not be exacerbated by having the opinion written by a member of the Court who has, from the point of view of Southern prejudice, three disqualifications: ‘You are a New Englander, you are a Jew and you are not a Democrat—at least not recognized as such.’ ” Frankfurter replied that he saw Jackson’s point ; Jackson was free, Frankfurter said, to suggest to the Chief Justice—Harlan Fiske Stone at that time—that the opinion be reassigned. When Stone later asked Frankfurter to suggest a name, Frankfurter declared that “the job required, of course, delicacy of treatment and absence of a raucous voice and that I thought of the Southerners Reed was the better of the two for the job. He agreed to that. …”

Thus, on April 3, 1944, in the case of Smith v. Allwright, the Texas white primary was invalidated. Justice Reed—Southerner, Protestant, and Democrat —spoke for the majority : “The United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any State because of race.”

In 1952, in addition to these seven justices, there were two crucial men on the court that was to hear the school segregation cases: Chief Justice Fred M. Vinson and Felix Frankfurter. But Vinson died before the school segregation cases were decided, and so what he would have done can only be a matter of speculation.