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Authors: Bob Woodward, Scott Armstrong
Tags: Non-Fiction
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well-meaning and congenial. Still, Burger was clearly Nixon's man.
Above all, Black wanted to avoid triggering a split in the Court. He decided not to overturn the delay but to set forth his own views as strongly as possible and thus show the way for the Court. He chose his words carefully, writing slowly with a pencil on a yellow legal pad. A clerk assisted him, but Black's memory problems slowed their effort. He frequently needed to be reminded of what the Court of Appeals had said. His clerk patiently told him. Black would jot down some thoughts and ask the same question. On some points, he needed to be reminded several times. It was a slow and painful struggle. "For a great many years," Black finally wrote, "Mississippi had had in effect what is called a dual system of public schools, one system for white students only and one system for Negro students only."
His frustration and impatience came through in sarcasm. Black recounted the history of the desegregation cases, including the ill-chosen "all deliberate speed" language of the 1955 Brown case (Brown v. Board of Education II). The time for "all deliberate speed," he wrote, had "run out." He acknowledged that the most recent 1968 Court desegregation decision (Green v. County School Board of New Kent County) could be interpreted as approving a "transition period" from a dual to a unitary system. That decision could also be read to say that the Court required only that the school systems have plans for desegregation now, not that there must be desegregation now. For Black, that was an incorrect interpretation. The time for delay, postponement, footdragging, transition was over. But, he wrote, "I recognize that, in certain respects, my views as stated above go beyond anything this Court has expressly held to date. . . . Although I feel there is a strong possibility that the full Court would agree with my views, I cannot say definitely that they would... ."
On September 5, Black issued a five-page opinion that left the Fifth Circuit's delay intact, "deplorable as it is to me," and invited the N.A.A.C.P. Legal Defense and Education Fund, Inc.—commonly known as the "Inc. Fund" —that was representing the blacks in Mississippi to "present the issue to the full Court at the earliest possible opportunity."
The opinion might force the Court to take the case. Since 1954, the Court had always been unanimous in school cases, its strong commands to desegregate joined by every member. For fifteen years, the Justices had agreed, that it was essential to let the South know that not a single Justice believed in anything less than full desegregation. To preserve that unanimity, the Court could not let the Fifth Circuit delay remain in force. Black's opinion put him on record as favoring a reversal.
The Inc. Fund followed Black 's suggestion and filed an emergency petition asking for a prompt hearing. On October 7, the Justice Department formally urged the Court to use its discretionary power not to hear the case, arguing that it would be better to wait and see what the Mississippi schools did after the plans were submitted on December 1. At conference on October 9, Black was able to muster the four votes required to grant the Inc. Fund cert petition.* The Justices agreed to put the case at the head of the docket and to hear oral arguments in two weeks, on October 23.
The press followed the case closely. Justice Department officials were saying that a Court decision in favor of the Inc. Fund, one that demanded immediate desegregation, would be tough to enforce because the Department did not have enough lawyers, and because the South might react violently. The President remarked at a press conference that those who wanted "instant integration" were as "extremist" as those who wanted "segregation forever." Lower federal court judges who were on the battle lines, with hundreds of similar school cases before them, waited to see what signal, if any, might be forthcoming.
On the
Above all, Black wanted to avoid triggering a split in the Court. He decided not to overturn the delay but to set forth his own views as strongly as possible and thus show the way for the Court. He chose his words carefully, writing slowly with a pencil on a yellow legal pad. A clerk assisted him, but Black's memory problems slowed their effort. He frequently needed to be reminded of what the Court of Appeals had said. His clerk patiently told him. Black would jot down some thoughts and ask the same question. On some points, he needed to be reminded several times. It was a slow and painful struggle. "For a great many years," Black finally wrote, "Mississippi had had in effect what is called a dual system of public schools, one system for white students only and one system for Negro students only."
His frustration and impatience came through in sarcasm. Black recounted the history of the desegregation cases, including the ill-chosen "all deliberate speed" language of the 1955 Brown case (Brown v. Board of Education II). The time for "all deliberate speed," he wrote, had "run out." He acknowledged that the most recent 1968 Court desegregation decision (Green v. County School Board of New Kent County) could be interpreted as approving a "transition period" from a dual to a unitary system. That decision could also be read to say that the Court required only that the school systems have plans for desegregation now, not that there must be desegregation now. For Black, that was an incorrect interpretation. The time for delay, postponement, footdragging, transition was over. But, he wrote, "I recognize that, in certain respects, my views as stated above go beyond anything this Court has expressly held to date. . . . Although I feel there is a strong possibility that the full Court would agree with my views, I cannot say definitely that they would... ."
On September 5, Black issued a five-page opinion that left the Fifth Circuit's delay intact, "deplorable as it is to me," and invited the N.A.A.C.P. Legal Defense and Education Fund, Inc.—commonly known as the "Inc. Fund" —that was representing the blacks in Mississippi to "present the issue to the full Court at the earliest possible opportunity."
The opinion might force the Court to take the case. Since 1954, the Court had always been unanimous in school cases, its strong commands to desegregate joined by every member. For fifteen years, the Justices had agreed, that it was essential to let the South know that not a single Justice believed in anything less than full desegregation. To preserve that unanimity, the Court could not let the Fifth Circuit delay remain in force. Black's opinion put him on record as favoring a reversal.
The Inc. Fund followed Black 's suggestion and filed an emergency petition asking for a prompt hearing. On October 7, the Justice Department formally urged the Court to use its discretionary power not to hear the case, arguing that it would be better to wait and see what the Mississippi schools did after the plans were submitted on December 1. At conference on October 9, Black was able to muster the four votes required to grant the Inc. Fund cert petition.* The Justices agreed to put the case at the head of the docket and to hear oral arguments in two weeks, on October 23.
The press followed the case closely. Justice Department officials were saying that a Court decision in favor of the Inc. Fund, one that demanded immediate desegregation, would be tough to enforce because the Department did not have enough lawyers, and because the South might react violently. The President remarked at a press conference that those who wanted "instant integration" were as "extremist" as those who wanted "segregation forever." Lower federal court judges who were on the battle lines, with hundreds of similar school cases before them, waited to see what signal, if any, might be forthcoming.
On the
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