By: John David Fassett, Earl E. Pollock, E. Barrett Prettyman,
Jr., Frank E.A. Sander
Moderated by: John Q. Barrett
On May 17, 1954, the Supreme Court of the United States decided
in Brown v. Board of Education that state and federal laws
segregating public school children by race were
unconstitutional. In Brown, which actually is the
name of just one of the five lower court decisions on school
segregation that the Supreme Court reviewed 50 years ago, Chief
Justice Earl Warren wrote for a Supreme Court that was
unanimous. The Court in Brown explicitly rejected
its own almost 60-year-old precedent approving “separate but equal”
public institutions and facilities for persons of differing
races. Brown is generally regarded as among the
most, if not as itself the most, significant Supreme Court
decision in United States history.
The Justices of the Supreme Court recognized, during the two
Terms in which they considered Brown and its companion
school segregation cases, that the issues they raised were, in much
of the United States, extremely controversial. The Justices
therefore agreed among themselves not to discuss their
deliberations on these cases with others—not even their own law
clerks. As a result, most of the thirty-six young lawyers who
worked as law clerks at the Supreme Court during its 1952 and 1953
Terms were not privy to very much of the Justices’ thinking, work,
discussions and draft opinions concerning school segregation—the
legal and human processes that actually produced the Brown
decision. But few “total secrecy” systems actually live up to
their ideal, and this one had exceptions.
On April 28, 2004, the Robert H. Jackson Center in Jamestown,
New York, assembled, for a group discussion, four former Supreme
Court law clerks: John David Fassett, Earl E. Pollock, E.
Barrett Prettyman, Jr. and Frank E.A. Sander. These attorneys
had been, fifty years earlier and to varying degrees, “in the loop”
of the Justices’ thinking about and deciding of Brown v. Board
of Education. After leaving their Supreme Court
clerkships (two of them just a month or two after the
Brown decision), these men built distinguished careers in
different cities and generally did not see each other or keep in
touch. Although they were interviewed individually over the
years about Brown by historians and others, these former
law clerks did not, until this discussion, gather as a group and
share, compare and assemble their recollections—against the
backdrop of years of personal and societal experience and much
historical scholarship and analysis—of Brown.
The result, on April 28th of this year and now in this
publication, is an extraordinary and unprecedented
discussion. The participants, who are the most knowledgeable
“insiders” who still are in positions to guide us, explain how the
Justices of the Supreme Court came to decide Brown v. Board of
Education as they did, individually and as a Court. This
discussion is the best first-person account (to date) of the
decision making process inside the 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 of May 17,
1954.
Full text version available for download
in PDF format.