Read Online The Brethren by Bob Woodward, Scott Armstrong - Free Book Online Page B
Authors: Bob Woodward, Scott Armstrong
Tags: Non-Fiction
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morning of Thursday, October 23, the courtroom was packed. Two hours, twice the normal time, had been allotted for oral argument. Jack Greenberg, chief lawyer
* A cert petition is a document filed with the Court, making the arguments as to why the Justices should take a particular case for consideration. Under the Court's internal rules, four votes—one less than a majority—are required to accept a case. The term cert petition is used in this book to refer both to petitions for certiorari and, in the case of appeals, to statements of jurisdiction.
for the Inc. Fund, opened. He said there had been enough stalling and enough lawlessness by the Southern school officials. He reminded the Court that its decisions were not being obeyed. Even after the Court's ruling of the year before, the federal court in southern Mississippi had spent a year arguing whether blacks were innately inferior to whites. Greenberg summed up the situation in Mississippi. A related suit against the school board of Jackson, Mississippi, was still pending in the Fifth Circuit. The man who had filed that suit, Medgar Evers, would not see how it came out; he had been gunned down near his home in Jackson. "The sorriest part of the story lies in the exercise of discretion by some United States District Court judges in that state," Greenberg said. They had delayed, they had refused to proceed, and they had exploited "ambiguity— real ambiguities and fancied ambiguities—in the decisions of this Court and the Court of Appeals."
Greenberg was going for ever ything in this case. He wanted the Court to take away the South's tested and most effective tool for delay. During the lower court battles, school districts often remained segregated until all appeals were exhausted. He proposed that the burden of proof be shifted, and that the Court order that the original H.E.W. plans be implemented. Desegregation should be the status quo. Its opponents could argue all they wanted, litigate all they wanted, but the schools would be desegregated during that process. He had a further suggestion. The recalcitrant District Court should be told to stay out of the case, and the higher court of appeals, the Fifth Circuit, should oversee implementation of the plans.
Greenberg wanted a strong desegregate-at-once statement that would have a straightforward symbolic effect He did not want the Court to focus on the practical problems of ordering instant desegregation.
Louis Oberdorfer, a private attorney and a former law clerk for Justice Black, argued for a group of lawyers in private practice whose names read like a Who's Who of the legal establishment. The group opposed any desegregation delay and offered, if necessary, to supply attorneys to help enforce desegregation in the South.
Black broke into Oberdorfer's argument as if he were asking his former clerk for advice. "The thing to do is to say that the dual system is over and that it is to go into effect today ... to go at it now—do you agree?" he asked softly.
"I agree with that, Your Honor," Oberdorfer responded, "without knowing exactly what 'now' is."
"I mean when we issue an order," Black said. He paused, then added: "If we do."
The audience broke into loud laughter. Black was not hiding his position.
Mitchell had assigned the head of the Civil Rights Division of the Justice Department, Jerris Leonard, to present the government's case. Leonard had barely given an account of government's successes in achieving desegregation in the South when he was interrupted by questions, first from Douglas and then from Black. Trying to brush them off, Leonard stated that there were practical problems, that the situation was complicated.
"What's so complicated?" Black challenged testily.
Leonard backpedaled. "What I'm pleading with this Court is not to do something precipitous—"
That set Black off. "Could anything be precipitous in this field now?" He could not hide his contempt. "With all the years gone by since our
* A cert petition is a document filed with the Court, making the arguments as to why the Justices should take a particular case for consideration. Under the Court's internal rules, four votes—one less than a majority—are required to accept a case. The term cert petition is used in this book to refer both to petitions for certiorari and, in the case of appeals, to statements of jurisdiction.
for the Inc. Fund, opened. He said there had been enough stalling and enough lawlessness by the Southern school officials. He reminded the Court that its decisions were not being obeyed. Even after the Court's ruling of the year before, the federal court in southern Mississippi had spent a year arguing whether blacks were innately inferior to whites. Greenberg summed up the situation in Mississippi. A related suit against the school board of Jackson, Mississippi, was still pending in the Fifth Circuit. The man who had filed that suit, Medgar Evers, would not see how it came out; he had been gunned down near his home in Jackson. "The sorriest part of the story lies in the exercise of discretion by some United States District Court judges in that state," Greenberg said. They had delayed, they had refused to proceed, and they had exploited "ambiguity— real ambiguities and fancied ambiguities—in the decisions of this Court and the Court of Appeals."
Greenberg was going for ever ything in this case. He wanted the Court to take away the South's tested and most effective tool for delay. During the lower court battles, school districts often remained segregated until all appeals were exhausted. He proposed that the burden of proof be shifted, and that the Court order that the original H.E.W. plans be implemented. Desegregation should be the status quo. Its opponents could argue all they wanted, litigate all they wanted, but the schools would be desegregated during that process. He had a further suggestion. The recalcitrant District Court should be told to stay out of the case, and the higher court of appeals, the Fifth Circuit, should oversee implementation of the plans.
Greenberg wanted a strong desegregate-at-once statement that would have a straightforward symbolic effect He did not want the Court to focus on the practical problems of ordering instant desegregation.
Louis Oberdorfer, a private attorney and a former law clerk for Justice Black, argued for a group of lawyers in private practice whose names read like a Who's Who of the legal establishment. The group opposed any desegregation delay and offered, if necessary, to supply attorneys to help enforce desegregation in the South.
Black broke into Oberdorfer's argument as if he were asking his former clerk for advice. "The thing to do is to say that the dual system is over and that it is to go into effect today ... to go at it now—do you agree?" he asked softly.
"I agree with that, Your Honor," Oberdorfer responded, "without knowing exactly what 'now' is."
"I mean when we issue an order," Black said. He paused, then added: "If we do."
The audience broke into loud laughter. Black was not hiding his position.
Mitchell had assigned the head of the Civil Rights Division of the Justice Department, Jerris Leonard, to present the government's case. Leonard had barely given an account of government's successes in achieving desegregation in the South when he was interrupted by questions, first from Douglas and then from Black. Trying to brush them off, Leonard stated that there were practical problems, that the situation was complicated.
"What's so complicated?" Black challenged testily.
Leonard backpedaled. "What I'm pleading with this Court is not to do something precipitous—"
That set Black off. "Could anything be precipitous in this field now?" He could not hide his contempt. "With all the years gone by since our
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