By: John Barrett
When the Supreme Court unanimously decided Brown v. Board of
Education and Bolling v. Sharpe on May 17, 1954, it did not decree
a remedy for the segregated public school systems that it was
declaring to be unconstitutional. Instead, the Court restored the
school cases to its docket for the coming Term and ordered further
briefing and oral argument on questions relating to the appropriate
remedy.
One year later, on May 31, 1955, the Supreme Court announced the
decision that has come to be known as Brown II. The Court, again
unanimously, decreed that it was remanding the cases to the trial
courts that had heard them originally, and it ordered those courts
to fashion decrees that would admit Negro students to schools on a
non-discriminatory basis "with all deliberate speed".
On May 18, 2005, two weeks before the 50th anniversary of Brown
II, the Robert H. Jackson Center in Jamestown, New York, and the
Supreme Court Historical Society assembled four attorneys who
served as Supreme Court law clerks during 1954-1955 for a
discussion of Brown II. In this roundtable, the attorneys share
recollections of experiences at the Supreme Court during that year,
and of working in the judicial process that culminated in Brown
II.
The introduction to this discussion traces the history of Brown
v. Board of Education and its companion cases in the Supreme Court.
It includes new discoveries, including circumstantial evidence that
the Justices did not, contrary to Chief Justice Warren's memoir,
actually vote on Brown I until March 1954; some detail on Gerald
Gunther's central involvement in Brown II as Warren's law clerk;
and information on the six law clerks who worked on special,
undisclosed-to-the-parties factual research for the Justices as
they considered the Brown II remedy question.