The Warren Court Con Law II

The Warren Court – Con Law II

Fall 2000

The Supreme Court 1935 –1953
The Court and the New Deal
Vinson appointed by Truman as CJ in 1946 – not up to the job
summer 1949 – 4 liberals on court: Black, Douglas,Murphy, Rutledge
Minton appointed - had supported court packing plan, feather-weight on the bench
Tom Clark also appointed – only careerist ever to make it to SC (had been in criminal, trust, AG) – vigorous enforcer of anti-trust laws (P – best of Truman appointees)
Southern Schools
tremendous increase in public education in beginning of 20th century
South was poorest section of US – confederate debts never repaid; didn’t have a lot to put into education
North treated South as a colony for next 100 years
James Burns – senator from SC – Truman’s secretary of state
An ardent segregationist
Saw that Southern schools wouldn’t withstand legal challenges
Came up with idea of updating the black schools – all Plessy required was that they be equal
Brown before Warren
Brown and companion cases –
NAACP claiming segregated schools violated EP
argued before Court in fall of 1952 – Court orders a new reound of briefing and argument
Court was badly split
Black, Douglas, Minton, Burton – segregation is per se unconstitutional
Vinson and Reed want to reaffirm Plessy, Clark also
Jackson probably wanted to do same
FF knew Plessy was wrong, but hesitant to support an aggressive judiciary
FF – wanted the decision to be unanimous; wants more info surrounding the adoption of 14A
Summer of 1952 – Truman decides not to run again – Ike wins on procedural vote on credentials

III. Brown

A. Warren –

ran for Republican and Democratic primary for California governor in 1946
nominated for VP in ‘48
prosecutor during prohibition (booze, sex, gambling)
October of 52 – Ike tells Warren he’ll get 1st SC nomination
September of 53 – Vinson has heart attack
Warren says 1st seat means CJ – Ike says OK
now Vinson gone – Clark likes to vote with CJ
Warren’s personality explains why Brown was unanimous

Brown Process
Jackson still conflicted – has heart attack and this takes away the possibility of a concurring or dissenting opinion by him; he never gets back to it
Warren now telling Reid he’s alone and that he needs to decide what’s best for the country
Opinion
Warren wanted it to be short and non-accusatory
wanted it read - to be reprinted in the newspapers
almost devoid of law, needed some interpretation
arguing that text, precedent and history don’t answer the question
P – could’ve argued precedent does speak to this – that strict scrutiny would require South to show compelling reason
OR could’ve discussed Southern way of life and how it was incompatible with constitutional notions of equality
function of the opinion should’ve been to persuade the persuadable southerner – the North needed no persuasion
Restin (NY Times) called it a sociological statement – it said segregation retards learning of black students
FN 11 –
quoted 6 psychological studies
gave target of immense proportion to critics

F. Boling v. Sharpe

equated the DP and EP clause – new thought
both clauses banned similar governmental behavior
said segregation can be supported by no valid reason

Reaction
state department loved Brown – US and Soviet Union fighting for support in 3rd world – as long as segregation existed, state department couldn’t win
DOJ – believed completely that segregation was bad
Ike signed brief that supported NAACP, but at all times refused to verbally defend Brown – said it wasn’t his job (he hadn’t had to deal with blacks and thought they were inferior)
Ike’s subsequent appointees were solid Brown supporters though
Southern reaction
Louisville and Atlanta papers took views that Brown wasn’t the end of the world
governor of Virginia said be calm, don’t be violent
Georgia governor Talmadge, Georgian senator Russell, Eastland came up with ideas that fueled South’s response
Eastland called it a legislative decision
Talmadge said the Court usurped power to amend the Constitution – reduced that great charter to a mere scrap of paper
Russell – justices were amateur psychologists – abandoned bulwark of our form of government
Sentiment was that Court didn’t behave like a Court and in so doing they amended and destroyed the Constitution
Meaning of Brown not really ever explored
2 possibilities:
Brown held the Southern laws void – need to move on as if the law didn’t exist
Without racial mixing in the classroom, education wasn’t what the constitution mandated
remedy would be to make sure black and white kids were in the same classroon
John Parker – constitution doesn’t require integration – it merely forbids segregation
initially desegregation meant absence of law prohibiting mixing in schools
P – in precedent or concept of law sense, this was an inexplicable decision; usually when we say someone has a right, we mean there is also a remedy to effectuate that right
this introduces the concept that a Constitutional right can be postponed (Marshall says this idea didn’t come about until blacks were involved)
delay
Marshall thought it would take a year
Warren thought 13 years
FF is delay’s greatest advocate (thought it wasn’t the “right time” for this)
like the Georgia Cherokee cases – Georgia didn’t follow what court said there
different idea of class action – named P takes, but not necessarily all class members
only named P entitled to relief here
new L for SC says we’re not going to obey
in conference, Black said it doesn’t matter what we do, South won’t follow it anyway
this scares FF and Jackson (they were big on the decision being effective)
Marshall, Clark and Reid don’t think it will be so bad
Phillip Ellman (ex-FF clerk) – in SG’s office
was in constant contact with FF – FF privy to debates in DOJ and Ellman privy to Court’s concerns
idea was to declare segregation unconstitutional and get out – knew this was totally unprincipled and thought FF would hate it
FF loved it – what was needed here was doing as little as possible

Changing Constitution
court said Constitution must be interpreted in light of current conditions to accommodate current needs
court thinking it’s the only one that will act (Congess hadn’t even passed anti-lynching laws)
Court orders reargument
takes another year to find out what Brown I means
this probably was throwing a pretty good bone to the South
quiet acquiescence in the fall of 1954 – race falls out of Southern papers
Jackson dies in Fall of 1954
Ike finally gets to appoint – John Marshall Harlan (was on 2nd circuit at the time)
Harlan was Plessy dissenter’s grandson – South not happy
McCarthy made noises about Harlan’s seeming internationalism (had international clients)
this delayed Harlan’s confirmation and oral arguments in Brown II

Brown II and Implementation
also thought that this needed to be unanimous
never answers who takes, what options for school administration, where do we start, how long will it take
Opinion - 4 pages (designed to avoid provoking the South)
all provisions of segregation are void
complexities involved in transition from segregated to desegregated schools
varied local school problems will need to be solved – local school authorities will be responsible for trying to solve the problem
judges/courts will be guided by equitable principles
practice flexibility in adjusting and reconciling public needs
personal interest of plaintiff – strange way to talk about a constitutional right
vitality of constitutional principles shouldn’t yield just because of opposition to it
This basically made the white South responsible for desegregation
District judges – to be supervising school boards and deciding if they’re making good-faith efforts at progress
judges in south were all white and all Democrat segregationists
basically one group of segregationists supervising another larger group of segregationists
this was an unconscionable opinion – fosters delay
initially W said start doing this as soon as is practicable (in 1st draft)
FF convinced him to change it to “with all deliberate speed”
one means get going, the other means get going but be careful
Desegregation didn’t work at least for a decade – not clear if anything could have worked
shock treatment – no one argued for this
say on 9-1-56 all schools are desegregated
this would’ve required a huge peace-time army
Initial Reactions
South perceived that they had won
North thought it was a reasonable compromise
this says something about the N – it was less intense on the issue of segregation than the South was
indication that N wasn’t going to press Brown for all it was worth
N functionally drops out of the equation and isn’t involved again until Little Rock in 1957
for 2 years, the only players were Southerners
James Jackson Filpatrick (editor of Richmond Newsletter) decided to use his voice to go after unconstitutionality of Brown II with all of his power
present South’s more elaborate case for unconstitutionality in the paper
discovers interposition – when federal government behaves unconstitutionally, it’s the duty of state governments to impose their position between it and the states
constitution is but a contract between sovereigns – when other side breaks the K, go back to being sovereigns
state of Va. should interpose itself between the unconstitutional SC decision and the white Va. law abiding citizens
interposition had been used by Calhoun in the Civil War – said Madison said the states had right to nullify
this is a standard move in conflicts – we’re not the aggressor, the SC is
trying to accomplish 2 things:
convince political establishment first in Virginia, then elsewhere to move against Brown
provide constitutional justification for what the South was about to do
Virginia begins passing laws under heading of massive resistance
La. passes 141
Southern Manifesto
signed by 101 out of 128 Southern Representatives
brought together by Strom Thurmond, Flood Byrd, Richard Russell
identified Brown as a “clear abuse of judicial power”
public and private men must reclaim the Constitution – use all lawful means to oppose the SC
LBJ and House Speaker Sam Rayborn not asked to sign
in senate, other than LBJ, only Albert Gore, sr. and Estes Kefauver didn’t sign
house hold-outs were all from the periphery (TX, ARK, TN, NC) – signaling a hardening of the lines
those who didn’t sign failed in their next elections
Progress of Desegregation
TX, Ark, KY, MD – had done some voluntarily
TX – used Texas Rangers in Ft.Worth to keep blacks out of schools under the guise of protecting them
TN – adopted a grade/year program – lots exercised right to go to single race school
SC, GA, VA, MISS, AL, LA, FL – NO desegregation at all
The South and Graduate Schools
Autherine Lucy – Alabama refused to admit her in 1956
finally admitted by a federal judge, there’s a riot, she’s expelled
gets back in, she makes a comment about the administration, she’s expelled again
started investigating every black that applied to white, public universities – persuade them to make a “better choice”
Virgil Hawkins – trying to get into U of Florida law school since 1949
FL SC let case sit until after Brown II
FL governor (Leroy Collins) had been a moderate before Brown – now determined to keep schools segregated
Hawkins finally gives up
Pupil Placement Laws
look at each pupil individually and determine where they should go – if you don’t apply, then you stay where you are
took almost a whole year to make a decision, then had to start over the next year
had to exhaust the administrative process before you could get any relief
Back-up Measures
provide tuition for private schools – Southern private schools hadn’t existed before this
make it a crime to go to a school with children of other races (attend a desegregated school)
South going at NAACP –
NAACP was organization pushing people to do things
South goes directly at them –
Treated it as a communist organization (trying to subvert the government – this was true)
Attack of NAACP lawyers
question of whether the NAACP model of litigation fit within the cannon of ethic
now resources have to go to defending the organization and its members
Citizens’ Councils
Mississippi judge Tom Brady wrote 90 page booklet attacking Brown
Said we need an alternative to KKK
Better, more widespread
white citizens’ councils – included financial leaders of the community; demanded and got complete conformity with whites
use the financial resources of the white community to keep blacks from voting, getting mortgages, getting credit
Klan didn’t work over whites so well, but did over blacks – the CC worked over the whites
South and the White Woman
purity of white woman was ultimate safeguard for preservation of the white race
rape was a capital offense –
used to enforce the code of the Southern white woman
if white woman accused, black will be executed
only question was if punishment would be before or after trial
miscegenation
Jack v. Alabama - black woman sentenced to jail for marrying a white man
Petition for cert
Court refused review and let the conviction stand
Naim v. Naim – white woman and Chinese man – went to NC to get married and then returned to VA to live
separated – wife seeks an annulment based on VA’s ban on interracial marriages
husband says the ban is unconstitutional
FF scared to hear the case because thinks it will do damage to Brown
Court refused to hear it 2X
Direct appeal here
Clark told his clerk that one bombshell was enough
Montgomery Bus Boycott
MLK beginning to come to national and Southern prominence
boycott 1954
Marshall thought this was a waste of time – L could achieve results in court without help of all these other people
difference between the use of law and the use of means – anyone can become active
Gayle v. Browder – Court ruled that Montgomery’s segregation was unconstitutional
Unsigned per curiam
now result without reasons was to be method of announcing further unconstitutionality of separate but equal
transit system yields – buses no longer segregated

Domestic Security
Background
WC spends more time dealing with this than any constitutional issue
never illegal to be a member
1935-39 – Popular Front Period
joining of all parties on left in anti-fascist coalition
Communists were conceived of by themselves and others as the left of the New Dealers
wave crashes in 1939 with Nazi-Soviet non-aggression pact
1941-45 other big period of joining
1945 – Elizabeth Bently testifies before House Un-American Activities Committee (HUAC) – said each and every member of the party was ready to spy
Republicans loved this
Democrats weren’t so convinced – thought members had joined more because of social issues than because of loyalty to the Soviet Union
2 parallel things started happening:
beginning of Cold War – Soviet unwillingness to remove troops from Iran, unwillingness to hold democratic elections in Poland, blockade of Berling, khu in Czech.
Mao ruling in China – N Korea invades South – correct assumption that they couldn’t have done this without Stalin
2 Major things on domestic side
testimony of Whitaker Chambers that he’d been in Communist ring with state department employee Alger Hiss
Hiss was Harvard law, clerked for Holmes, been in ag. Department and state department
He represented the New Deal as well as anyone
Dispelled Republican notion that commies were all Ivy Leaguers that couldn’t hold jobs
New Dealers stayed with Hiss
1st trial had hung jury, 2nd trial he was convicted
indictment of Julius and Ethel Rosenberg for turning over atomic secrets to the Soviets
clear that he was guilty
she was put on trial to squeeze him – Ike refuses to grant her clemency
sealed Republican conception of comm.unism – that they were traitors who would do anything to help the Soviets
Tom Clark (AG) listed different kinds of communist organizations – if you were member of any of these, you could expect trouble from the government
true communist organizations
organizations that started otherwise but had been taken over by communists
fellow travelers – followed Communist line completely but refused to join the party
Dennis v. US – Smith Act indictment of 12 leaders of communist party
Court holds 6:2 that 1A didn’t block an indictment for joining any organization that at some future date would engage in a conspiracy to advocate overthrowing the government
sustains the Smith Act
had held that it satisfied the 1A’s clear and present danger test
HUAC
1952 – 182 reps wrote this down as 1st choice
forerunner of committees we see now (P- no other purpose than to degrade W so as to look like they’re doing their jobs)
5A communist – those who took 5th in response; HUAC trying to enumerate commies one at a time
only way to survive HUAC was to be a supplicant who would name names
hearings starting to look like trials – violation of separation of powers and of 1A (asking if they were in party)
Parties
Republicans were looking like a permanent minority party – this looked like their chance to become a majority
loved ex-commies
ex-commies tended to go far to the right as if there was a religious conversion (wash sins away)
became important for liberals to distinguish between commies and anti-commie liberals; also willing to let Fellow Travelers to be treated as communists
Early WC decisions
Barsky v. Regents – joint Anti-Fascist Refuge Committee
HUAC trying to take a doctors license away for heading this up
Refused to produce records and challenged the constitutionality of HUAC
Court affirmed his suspension
Dissent – Douglas, Black and FF (W goes with majority this time)
Burton majority said practicing medicine was a privilege – state had a legitimate interest in maintaining high standards of the profession
Galven v. Press –
Internal Security Act of 1950 (McCarran Act) – made it a deportable offense for an alien to have been a member of the communist party
FF majority-
Congress didn’t intend a requirement of knowing membership
Congressional power over aliens had been held to be plenary by prior Courts
Warren in the majority again
Black, Douglas dissenting
1954 – could watch the McCarthy hearings on TV – he was self-destructing on national TV
he’s censured by the Senate – they didn’t want to vote before the election
in Dec – censure was changed to condemning
Peters v.