Nine Men Against America - Rosalie Gordon

More Packees—Jackson, Burton, Clark, and Minton

But who were the justices who concurred in such infamy? We have already had a look at five of them—Chief Justice Warren and Justices Frankfurter, Reed, Black, and Douglas. The other four justices on the bench at the time of the segregation decision were Jackson, Burton, Clark, and Minton.

Robert H. Jackson was another of the Roosevelt appointees to the Court—and another with no previous judicial experience. In fact, he didn't even have a law degree. He was born in Spring Creek, Pa., in 1892, and spent one year in a "quickie" law school in Albany, N.Y., but skipped the other year required for a sheepskin. However, he was later admitted to the bar and was a practicing lawyer in upstate New York when he was brought to Washington in 1934 as general counsel of the Internal Revenue Bureau. While there, he handed down a ruling allowing the busy money-making wife of President Roosevelt to deduct more than the maximum 15 percent of earnings for charitable contributions. The more one can claim for charitable contributions, the lower the tax rate on overall income and thus the more the taxpayer can keep for himself.

After that, his rise was rapid. He became an Assistant Attorney-General, then Solicitor-General, then Attorney-General—where he led the fight for Roosevelt's court-packing scheme before Congress. In 1941 he was named to the High Court.

Justice Jackson had a caustic tongue and a quick temper. While he was on the Court, he carried on a bitter feud with Justice Black which perhaps cost Jackson the chief justiceship and finally had the "liberal" Supreme Court washing its dirty linen in public. At this late day, it is almost impossible to separate the facts from the rumors about this feud, but essentially here is what happened.

Justice Jackson evidently had some sort of promise from Roosevelt—a promise that was renewed by President Truman—that when Chief Justice Stone retired or died, Jackson would be named Chief Justice. Stone died after Truman became President, and there seems to be little doubt that Truman had every intention of making Jackson Chief Justice. However, in the meantime, a case had come before the Court which resulted in a five-to-four decision. The majority decided in favor of the side which was represented by a former law partner of Justice Black. Jackson wrote a stinging dissent in the case. In the privacy of the court chambers, court attachés could overhear angry and immoderate words between the two justices. Jackson thought Black should have disqualified himself, since a former law partner of his was involved in the case, while Black considered the implication that he would decide a case on such a basis an insult to his judicial honor. There was no rule of the Court covering such circumstances.

Then Jackson went off to Germany to preside over the Nuremberg trials. While he was there, Truman named Fred Vinson Chief Justice, mainly, as we have noted, to see if he couldn't quiet the name-calling and personal bickering on the Court which was threatening to break out in public. At about the same time, the loser in the case over which Justices Black and Jackson exchanged angry words applied for a rehearing on the ground that Black ought to have disqualified himself. Jackson, brooding in Nuremberg about the fact that he had been passed over for the chief justiceship, and with the concurrence of Justice Frankfurter, issued a public blast against Justice Black—and the feud was out in the open on the front pages of all the newspapers. Jackson declared in Nuremberg that he had made the whole thing public because Black had threatened that if he did so it would "mean a declaration of war." Justice Black held his peace and made no reply. Eventually the furor died down.

That's the way the story appeared to the public. But behind the scenes appeared the hand of the inveterate meddler, Justice Frankfurter. Washington gossip—which, surprisingly enough, often turns out to have a grain of truth in it—had it that the real reason Truman didn't appoint Jackson to head the Court was that former Chief Justice Hughes and Justice Roberts had gone to the President and told him they didn't feel Jackson had the proper temperament to be Chief Justice—he was too quick-tempered and tactless. Robert S. Allen, the Washington correspondent, later reported that Justice Frankfurter, who was always writing letters, wrote one to Justice Jackson in Nuremberg in which he made a statement which Allen said was completely untrue—that Black had gone to Truman and told him he would not serve on the Court under Jackson. In Nuremberg, Jackson, of course, had no way of knowing that the trouble-making Frankfurter had concocted the story out of whole cloth. He thereupon released his public blast against Black and brought the Supreme Court down to the level of gutter politics. That, at least, is the story according to Washington news gatherers.

A recent laudatory biography of Justice Jackson, America's Advocate: Robert H. Jackson by Eugene C. Gerhardt, attempts to justify Jackson's open blast at Black strictly on the grounds of Jackson's belief in the legal proprieties. The author says Jackson was angry with Black because Black cast the deciding vote in the case in which his former law partner was involved and tried to pressure his colleagues into keeping quiet about it, and that the purpose behind the whole thing (having to do with a portal-to-portal pay case) was to enable John L. Lewis to win a strike. Yet the fact remains that Jackson thought he was going to be made Chief Justice, that he wasn't, and that, if Allen's story is correct, Frankfurter told him it was Black's doing which blocked his appointment.

It is impossible, as we have said, to separate the gossip from the facts. Yet the act with which Frankfurter is supposed to have charged Black—going to Truman to stop Jackson's appointment—does seem out of character. Justice Black, whatever his "liberal" views, was reserved and quiet, keeping very much to himself. He had had enough trouble when he first went on the Court, what with the Klan charges and the fact that the Chief Justice (Hughes at the time) had gotten Black's negative vote when Black was in the Senate and Hughes was up for confirmation. Black had behaved himself admirably in his personal relations on the Court in a trying situation and had eventually won the respect of his colleagues, particularly as he was hardworking and industrious and never shirked his share of the duties—as Frankfurter was wont to do. Frankfurter was so busy with his string-pulling that he seldom had time to attend to the Court's routine business.

As for Justice Jackson, he evidently reached some sort of rapprochement with his colleagues when he returned from Nuremberg, for he remained among them—a somewhat embittered man. He had seen the chief justiceship of the United States slip from his grasp. The Nuremberg trials had not added to his reputation. He could not help being aware of the fact that many respected men in his own profession were shocked at a justice of the Supreme Court of the United States sitting as both judge and prosecutor in a series of trials in which he was establishing and administering ex post facto law. Much as Americans hated the Nazi war lords, it was completely alien to the American tradition of law to prosecute men for criminal acts which were not declared to be so until long after the fact. As the late Senator Robert A. Taft had the courage to point out, the Nuremberg trials over which Justice Jackson presided will forever remain a blot on the escutcheon of American jurisprudence.

As the years went on, Jackson—originally an ardent New Dealer—became somewhat more conservative in his views, but in the segregation decision he harked back to his former feeling about the Constitution. He said in 1940: "The national government has won its long fight to free itself of unwarranted limitations." And he once exulted that the Supreme Court "had established a supremacy that could deny important powers to both state and nation on principles nowhere found in the Constitution itself." Jackson died five months after the segregation decision, leaving the Court open to another Eisenhower appointment to which we will come in a moment.

Justice Harold H. Burton was a Truman appointee—somewhat the same brand of "modern Republican" as Chief Justice Warren. He was a crony of President Truman's from his Senate days. He was born in 1888 in Jamaica Plain, Mass., went to Bowdoin College and later to Harvard Law, where he got his law degree in 1912. He then settled in Cleveland, Ohio, to practice law. His claim to competence for the Supreme Court appointment was that he had once been mayor of Cleveland. He had no judicial experience whatever and became known as the member of the bench who wrote the fewest opinions. But Washington party going was something else again—it was a rare party indeed that was not graced by the presence of Justice Burton. He is still on the Court at this writing, and in the last year or two has joined in several dissents in cases involving communists, against the overwhelming rush of the left-wing majority.

Justice Tom C. Clark of Texas became, in the 1956-1957 session of the Court, the chief and often the lone dissenter. He is a native Texan, having been born in Dallas in 1899. He got his college education and his law degree from the University of Texas. But Justice Clark went along in the segregation decision and, in fact, was the author of one of the worst subsequent decisions (Slochower v. Bd. of Higher Education) of the Court—that which takes away from a state or city the right to fire a teacher who refuses to reveal his communist connections.

Clark was a Truman appointee, also with no judicial experience. Most of his career he spent in New Deal and Fair Deal bureaus, winding up as Truman's Attorney-General. It has been said that Truman named him to the Court to put him beyond the reach of congressional investigators who were looking into the mess of corruption and "fixing" during those days. However, a House Judiciary Committee later absolved him of any personal wrong-doing, but reprimanded him for "withholding his cooperation" from the committee's work.

Justice Sherman Minton, the last of the nine who rendered the segregation decision, was the only one who had had any real previous judicial experience. But it is interesting to note how he got it. He was born in Georgetown, Indiana, in 1890, got his law degree from Indiana University in 1915, and began practicing law in New Albany in his native state. In 1934 he was elected to the Senate from Indiana. He was an ardent New Dealer who fought hard to put over Roosevelt's court-packing plan. He was noted for his willingness to do anything Roosevelt wanted—in fact, he himself boasted that he was a "rubber stamp" and a "100 percent New Dealer." After six years of this, the voters of Indiana got fed up and defeated him.

Minton was wandering around Washington looking for a job when Roosevelt named him to a $10,000-a-year post as a White House administrative assistant. Four months later a circuit judge in Chicago died, leaving vacant a $17,000 job, and Roosevelt handed it to Minton. There he remained for eight years, until Truman plucked him from the Chicago bench in 1949 and put him on the Supreme Court.

In a recent term of the Court, Justice Minton joined Justices Reed and Clark in several dissents against the ever-increasing assaults on the Constitution by the majority of the Court. But at the end of the Court's work in 1956 he resigned and gave to President Eisenhower his third appointment to the Court. Justice Stanley Reed's subsequent resignation in 1957 gave the President his fourth appointment.

These were the men—Warren, Minton, Clark, Burton, Jackson, Douglas, Frankfurter, Reed, and Black—who, on the "authority" of a batch of left-wing nobodies, did what no Congress of the United States had ever permitted. They put the hand of the central government directly into the public school systems of the American states.