Pages 703-705


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SIMPLE JUSTICE                                                                    Pages 703-705



The big day



IN THE PRESS ROOM on the ground floor, reporters filing in at the tail end of the morning were advised that May 17, 1954, looked like a quiet day at the Supreme Court of the United States.

All of the opinions of the Court were announced on Mondays in that era. The ritual was simple and unvarying. The Justices convened at noon. Lawyers seeking admission to the Supreme Court bar were presented to the Court by their sponsors, greeted briefly by the Chief Justice, and sworn in by the clerk of the Court. Then, in ascending order of seniority, the Justices with opinions to deliver read them aloud, every word usually, without much effort at dramaturgy. Concurrences and dissents were read after the majority opinion. And then the next case, and then the next. There was no applause; there were no catcalls. There were no television or newsreel cameras. There were no questions from the newsmen in the audience. There was no briefing session in the press room or the Justices’ chambers after Court adjourned. There were no weekly press conferences. There were no appearances on “Meet the Press” the following Sunday. There were no press releases elaborating on what the Court had said or meant or done. The opinions themselves were all there was.

The routine was generally so cut-and-dried that most veteran newsmen covering the Court did not bother going upstairs to hear the opinions being read by the Justices in none too sonorous voices. The quicker way to learn what the Court was up to was to wait by the phones and typewriters in the press room. As soon as the reading of a decision began in the courtroom, a message to that effect was dispatched by pneumatic tube to the press room, where printed copies of that opinion – and that opinion only – were taken from an office safe and distributed to the thirty or so reporters on the premises. They could read it a lot faster to themselves than could the Justice delivering it out loud in the courtroom. That saving in time mattered, since the decisions of the Court often made the front pages of the evening papers that were already beginning to come off the presses. Too often, the pressure to get the gist of the Court’s decisions to the media caused the intention of the Justices to be garbled in those first dispatches. Many of the cases before the Court, after all, dealt with matters of great complexity, and the nuances of constitutional law did not make easy front-page reading. But the news this day would not be garbled.






SIMPLE JUSTICE                                                                    Pages 703-705



Had they been on the lookout for clues, reporters might have found one to suggest that they were on hand for an historic day.  Justice Robert Jackson, just seven weeks after having suffered a serious heart attack, returned to the Court that morning, well before the normal recuperative period had expired.  Looking thinner, older, and wan from his ordeal, he arrived as unobtrusively as possible  by a little-used entrance and then the Justices’ private elevator en route to the robing room near the Court itself.

Word of Jackson’s imminent return had preceded him that morning among some of the clerks to the other Justices. In Tom Clark’s chambers, clerk Ellis H. McKay, a thirty-year-old native of western Pennsylvania and graduate of the University of Pennsylvania Law School, compared notes with twenty-five-year- old Ernest Rubenstein, who had grown up in New York City and excelled at Yale’s School of Law. Justice Clark had said almost nothing about the school- segregation cases to his clerks during that term, and those clerks who were privy to any part of the opinion-writing in Brown (such as Earl Pollock working with the Chief Justice, Barrett Prettyman with Justice Jackson, John Fassett and George Mickum with Justice Reed, and Frank Sander, who was permitted a quick advance reading of the opinion by Justice Frankfurter) were constrained from discussing the subject at the clerks’ daily luncheon sessions, which normally were non-stop bull sessions on the business of the Court. McKay had to go down to the Court’s basement print shop on the morning of May 17 to pick up copies of an opinion Justice Clark was to deliver that day. While in the shop, he spotted a very large wrapped package of opinions that was not marked with the docket number of the case, as was customary. Its size and mysterious anonymity he reported to Rubenstein, who in turn had heard about Jackson’s return to the Court. These unmistakable signs of big doings were confirmed by Justice Clark, who stopped for a moment on his way to the robing room just before noon and said to the clerks, as Rubenstein recalls, “I think you boys ought to be in the courtroom today.” More often than not, the clerks would work while the Court was in session; in most cases, they were thoroughly familiar with the opinions being read. In many instances, they had helped draft them. This day was different, though. Justice Clark did not tell Rubenstein and McKay why. He did not have to.






SIMPLE JUSTICE                                                                    Pages 703-705



They stood in the alcove on the left side of the great ceremonial room. Rubenstein recalls watching Dean G. Acheson, the retired Secretary of State, come before the Court that noon to sponsor his son’s membership with the words, “Mr. Chief Justice, I have the honor to move the admission of David Campion Acheson of the bar of the District of Columbia. I am satisfied that he possesses the necessary qualifications.” Since the qualifications were none too rigid –membership for three years in the highest court of a state or territory, written endorsement by two members of the Supreme Court bar, and a $25 fee – there  was no shortage of lawyers applying for the certificate, which, when tastefully framed and prominently installed on the office wall, added cubits to their stature in the eyes of clients. On May 17, 1954, young Acheson was one of 118 lawyers to be admitted to the bar of the nation’s highest court. Also being admitted that morning was Roman Lee Hruska, an Omaha lawyer then serving his first term in the House of Representatives and to be elevated later that year to the United States Senate, where he would pass more than twenty years in uncelebrated mediocrity. What was remarkable about the otherwise monotonous admission ceremony was the enthusiasm which the Chief Justice somehow brought to it. As each candidate for the Court’s bar appeared before him, Earl Warren smiled broadly, pronounced the lawyer’s name distinctly, and bade him or her a brief but hearty and apparently genuine welcome. A large man made larger still by his black silk robe, he had a full head of white hair and spoke in a flinty bass that combined to project massive majesty and strength. But there was a saving warmth that kept him from ever quite seeming forbidding.

At about half past noon, the admission ceremony concluded, the Chief Justice turned to Justice Clark, who read the opinion of the Court in case No. 464 on the docket, United States v. Borden Company. The Court affirmed a judgment that Borden had not engaged in monopolistic practices in the sale of milk in the Chicago area. Justice Douglas went next with No. 398, Capital Service, Inc. v. National Labor Relations Board, in which the Court held that the federal govern­ment was not entitled to collect an indemnity from an employee found guilty of negligence. Douglas also read the Court’s opinion in No. 449, dealing with the right of a bakery workers’ union to picket retail stores.






SIMPLE JUSTICE Pages 703-705



Down in the press room, as the first three routine opinions were distributed, it looked, as predicted, like a very quiet day at the Court. But then, as Douglas fin­ished up, Clerk of the Court Harold Willey dispatched a pneumatic message to Banning E. Whittington, the Court’s dour press officer. Whittington slipped on his suit jacket, advised the press-room contingent, “Reading of the segregation deci­sions is about to begin in the courtroom,” added as he headed out the door that the text of the opinion would be distributed in the press room afterward, and then led the scrambling reporters in a dash up the marble stairs.

“I have for announcement,” said Earl Warren, “the judgment and opinion of the Court in No. 1 – Oliver Brown et al. v. Board of Education of Topeka.” It was 12:52 p.m. In the press room when the Associated Press wire carried the first word to the country: “Chief Justice Warren today began reading the Supreme Court’s deci­sion in the public school segregation cases. The court’s ruling could not be deter­mined immediately.” The bells went off in every news room in America. The nation was listening.

It was Warren’s first major opinion as Chief Justice. He read it, by all accounts, in a firm, clear, unemotional voice. If he had delivered no other opinion but this one, he would have won his place in American history.

Considering its magnitude, it was a short opinion. During its first part, no one hearing it could tell where it would come out….





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