Read Online The Brethren by Bob Woodward, Scott Armstrong - Free Book Online
Authors: Bob Woodward, Scott Armstrong
Tags: Non-Fiction
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was Alabama's senior Senator in 1937, when Roosevelt chose him for the Court. As a young man Black had briefly been a member of the Ku Klux Klan, but he had been, in fact, always a progressive on race relations. He had learned much about the subtleties of this matter as a rising politician. He considered the Court's desegregation decisions as among its most important. It pained him to see the agony that Southerners, both white and black, endured as a result of the Court's rulings. And it hurt him, too, that many white Southerners thought him a traitor. Black blamed himself in part. He had given in to Justice Felix Frankfurter's demand that the phrase "all deliberate speed" be included in the Court's 1955 ruling {Brown v. Board of Education II) to set the rate at which school systems must desegregate. That was language for lawyers and it had been a grievous mistake. The phrase had given the South its weapon. For fifteen years lawyers had seized upon it to defy the law of the land. "I never should have let Felix get that into the opinion," Black often said to his clerks.
It had become an excuse for delay, and it had also thrust federal judges into the business of deciding which plans would work and which would not, which schedules were fast enough and which were not. Judges were running school systems and making decisions about school locations and the racial proportion of faculty members, matters in which they had no experience. Black felt that for the federal courts to assume this role was the old "tyranny of the judges." He had an abiding fear of judges exercising so much discretion, having seen them dismantle the New Deal and defend corporate power in the early 1930s.
Black had always advised both the other Justices and his own clerks to "go for the jugular," a word he pronounced in his soft Alabama accent to rhyme with bugler. He meant that cases weren't won or lost, nor was the law decided, on legal niceties. Judges might say they were, but that was never the real reason. In each case there was always a crucial issue to locate. The issue might be hard to find, Black said, but once found it must be addressed.
In this latest case (Alexander v. Holmes County Board of Education), it would be easy for Black to follow his own advice. The issue was that the Court's Brown decisions were not being obeyed, the pace of desegregation was too slow. So the question was how to prevail over an apparent loss of will by the usually firm Fifth Circuit Court of Appeals, as well as over an administration that was, at the very least, hedging.
Five days later, on September 3, Black received a memorandum from the Justice Department. Solicitor General Griswold was urging that Black permit the Mississippi delay. Griswold acknowledged that such a delay "means in most situations, another school year, and that is a tragedy and a default." But he argued that it was inevitable, because of the need to revamp student assignments and reschedule and reshuffle faculties.
Black found this request absurd. But as the single Justice acting on the request to overturn the Fifth Circuit, he felt the need to proceed cautiously. He wanted to overturn the delay and order desegregation at once. Immediately. Technically he had the authority and could do what he thought was proper. But the full Court might not accept his position. If a majority disagreed, they would doubtless vote to hear the case during the regular term, and they might reverse him. Black wanted to avoid angering his colleagues. Douglas occasionally acted alone as Circuit Justice when there was no chance that his views would be supported by a majority. The full Court at times reversed Douglas, but the other Justices still resented Douglas's taking matters into his own hands.
There was another factor too: the new Chief Justice. Burger's record on civil-rights issues seemed decent. The new Chief had sought out Black's opinion on a number of matters over the summer, and Black had found him
It had become an excuse for delay, and it had also thrust federal judges into the business of deciding which plans would work and which would not, which schedules were fast enough and which were not. Judges were running school systems and making decisions about school locations and the racial proportion of faculty members, matters in which they had no experience. Black felt that for the federal courts to assume this role was the old "tyranny of the judges." He had an abiding fear of judges exercising so much discretion, having seen them dismantle the New Deal and defend corporate power in the early 1930s.
Black had always advised both the other Justices and his own clerks to "go for the jugular," a word he pronounced in his soft Alabama accent to rhyme with bugler. He meant that cases weren't won or lost, nor was the law decided, on legal niceties. Judges might say they were, but that was never the real reason. In each case there was always a crucial issue to locate. The issue might be hard to find, Black said, but once found it must be addressed.
In this latest case (Alexander v. Holmes County Board of Education), it would be easy for Black to follow his own advice. The issue was that the Court's Brown decisions were not being obeyed, the pace of desegregation was too slow. So the question was how to prevail over an apparent loss of will by the usually firm Fifth Circuit Court of Appeals, as well as over an administration that was, at the very least, hedging.
Five days later, on September 3, Black received a memorandum from the Justice Department. Solicitor General Griswold was urging that Black permit the Mississippi delay. Griswold acknowledged that such a delay "means in most situations, another school year, and that is a tragedy and a default." But he argued that it was inevitable, because of the need to revamp student assignments and reschedule and reshuffle faculties.
Black found this request absurd. But as the single Justice acting on the request to overturn the Fifth Circuit, he felt the need to proceed cautiously. He wanted to overturn the delay and order desegregation at once. Immediately. Technically he had the authority and could do what he thought was proper. But the full Court might not accept his position. If a majority disagreed, they would doubtless vote to hear the case during the regular term, and they might reverse him. Black wanted to avoid angering his colleagues. Douglas occasionally acted alone as Circuit Justice when there was no chance that his views would be supported by a majority. The full Court at times reversed Douglas, but the other Justices still resented Douglas's taking matters into his own hands.
There was another factor too: the new Chief Justice. Burger's record on civil-rights issues seemed decent. The new Chief had sought out Black's opinion on a number of matters over the summer, and Black had found him
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