The subject matter of Jack Bass\u27s Unlikely Heroes is the impact of Brown II on the Court of Appeals for the Fifth Circuit

Marshall, Burke

English

Yale Law School Legal Scholarship Repository

SOUTHERN JUDGES IN THE DESEGREGATION
STRUGGLE
UNLIKELY HEROES. By Jack Bass. New York: Simon &
Schuster. 1981. Pp. 352. $14.95.
Reviewed by Burke Marshall1
In Brown 11,2 after reiterating "the fundamental principle
[first stated in Brown 13] that racial discrimination in public
education is unconstitutional," 4 the Supreme Court turned to
the unaccustomed task of delegating power, rather than merely
pronouncing law. "All provisions of federal, state, or local
laws requiring or permitting such discrimination must yield to
this principle," the Court said; what remained for considera-
tion was "the manner in which relief [was] to be accorded."
'5
These words did not, of course, mean what they usually mean
- that is, relief for the parties in the particular cases. Nor,
as soon became clear, did the Court really mean to confine its
mandate to the field of public education. 6 The job of "ac-
cording relief" was, as the Court must have known, more
complex, more intrusive on powerful entrenched interests, and
in many ways more intractable than even the far-reaching
tasks delegated by Congress to the executive branch since the
New Deal. The task involved nothing short of a commission
to restructure a network of law supporting, and supported by,
an oppressive economic, social, and political system in the
former Confederate and neighboring states. Having no con-
ceivable institutional way to do this job itself, the Court in
Brown II simply delegated it to the only bodies that the Court
I John Thomas Smith Professor of Law, Yale Law School.
2 Brown v. Board of Educ., 349 U.S. 294 (i955).
3 Brown v. Board of Educ., 347 U.S. 483 (I954).
4 349 U.S. at 298.
5 Id.
6 Consider, for example, the following summary per curiam decisions: Schiro v.
Bynum, 375 U.S. 395 (1964) (segregation in municipal auditorium); Johnson v. Vir-
ginia, 373 U.S. 61 (1963) (courtroom seating); Turner v. City of Memphis, 369 U.S.
350 (z962) (airport restaurant); State Athletic Comm'n v. Dorsey, 359 U.S. 533 (i959)
(athletic contests); New Orleans City Park Improvement Ass'n v. Detiege, 358 U.S.
54 (1958) (public parks and golf course); Gayle v. Browder, 352 U.S. 903 (1956)
(buses); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (municipal golf courses);
Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955) (public beaches and bathhouses).
Mr. Bass refers at several points to the decision below in the Browder case, Browder
v. Gayle, 142 F. Supp. 707 (M.D. Ala.), aff'd per curiam, 352 U.S. 903 (1956). See
J. BAss, UNLIKELY HEROES 68-69, 74-76 (i98i). It is a minor but infuriating defect
in the book that the citation to this case, among others, is never given. There are
also some miscitations. See, e.g., id. at 235 n.4 (323 F.2d given as 223 F.2d).
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could tell to do what it wanted done: the inferior federal courts
in what was then the Fifth Circuit, 7 as well as those in parts
of the Fourth and Sixth Circuits.
The subject matter of Jack Bass's Unlikely Heroes is the
impact of Brown II on the Court of Appeals for the Fifth
Circuit. The book revolves around four court of appeals
judges: John R. Brown of Texas, Richard Taylor Rives of
Alabama, John Minor Wisdom of Louisiana, and Elbert P.
Tuttle of Georgia, all now on senior status or retired. Two
district court judges - Frank M. Johnson, Jr., of the Middle
District of Alabama, now on the Eleventh Circuit Court of
Appeals, and J. Skelly Wright of the Eastern District of Lou-
isiana, now on the Court of Appeals for the District of Colum-
bia Circuit - also figure prominently in the story.
The strength of the book comes from the fact that these
are all extraordinary men, experienced and able advocates,
firm-minded judges, articulate defenders of their decisions -
in short, lawyers exhibiting the kind of personal integrity,
courage, and vision to which all members of the profession
should aspire. They did their work at a time when federal
judges had orders from the Supreme Court, through Brown
II, to implement a revolution in law that was feared and
resisted by an overwhelming majority of the white population
in the areas affected. The combination of unusually creative
judges and the sea change in American race relations imple-
mented initially through the federal judiciary necessarily con-
tains the elements of drama. Mr. Bass, a Southern reporter
with a longstanding interest in race relations, watched the
drama unfold. In his book, we learn something, by no means
too much, about each of the six men - their personal back-
grounds, their views of judicial work, the personal and social
indignities they endured because of their work, and their in-
dividual and collective convictions about racial justice and the
social condition of their land. Mr. Bass also provides a de-
scription of what that social condition was like only a few
years ago, in order to remind his readers how swiftly the
revolution of law initiated by Brown I has proceeded.
Mr. Bass has ambitions, however, that go beyond telling
the personal story of six judges at work in the midst of drama.
He also undertakes a technical and analytical description of
the judicial work of the Fifth Circuit under Chief Judge Tuttle.
The court faced four kinds of difficulties in the post-Brown
7 Pursuant to the Fifth Circuit Reorganization Act of T98o, Pub. L. No. 96-452,
94 Stat. 1994, Alabama, Georgia, and Florida have been separated from the old Fifth
Circuit and now constitute the new Eleventh Circuit.
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era. First, it grappled - in a racial context - with the
doctrinal constraints on federal control of state trial courts
developed since Douglas v. City of Jeanette.8 A second prob-
lem concerned the special difficulty of appellate control over
federal district court judges who, in race cases, simply would
not move the judicial business ahead in conformity with the
substantive commands of the Constitution as it was construed
by the Supreme Court and the Fifth Circuit. 9 A third, rela-
tively unstudied part of the judicial business concerned the
Fifth Circuit's internal management, a source of intense, bitter,
and sometimes public disagreement among the judges of the
Circuit, a disagreement that stemmed basically from differ-
ences over the speed and manner with which racial matters
should be handled by the federal judiciary.' 0 The fourth,
more traditional, and therefore more easily understood and
described area of judicial work was the development of doc-
trine through the application of Brown I to a variety of new
contexts. 1
Mr. Bass's book recognizes and describes, to varying de-
grees, each of these elements of the judicial business, but not
in a way that advances the existing literature 12 or that subjects
the work of the Fifth Circuit after the Brown decisions to the
analysis it deserves. The author's training is in journalism,
and the book's organization and style is anecdotal. What is
needed, however, is legal and historical scholarship and careful
contextual analysis.
The very title of the book suggests both its premise and its
conclusion: that the "heroic" judges were those who in every
case stood for racial justice above all else. This is clearly a
supportable point of view, but it is not self-evident absent a
principled view of what the role of a judge should be.1
3 It
8 319 U.S. 157 (I943).
9 See, for example, the discussion of United States v. Lynd, 301 F.2d 818 (5th
Cir. 1962), in J. BASS, supra note 6, at 218-220.
10 See J. BASS, supra note 6, at 231-47.
11 See, e.g., Browder v. Gayle, 142 F. Supp. 707 (M.D. Ala.) (application of
Brown I principle to city buses), affd per curiam, 352 U.S. 903 (1956).
12 See, e.g., J. BASS, supra note 6, at 333-35 (bibliographic essay); J. PELTASON,
FIFTY-EIGHT LONELY MEN (196i); F. READ & L. McGOUGH, LET THEM BE JUDGED:
THE JUDICIAL INTEGRATION OF THE DEEP SOUTH (1978); Note, Judicial Performance
in the Fifth Circuit, 73 YALE L.J. 9o (1963). There are two books on judge Frank
Johnson, both worth reading. See R. KENNEDY, JUDGE FRANK M. JOHNSON, JR.
(i98o); T. YARBROUGH, JUDGE FRANK JOHNSON AND HUMAN RIGHTS IN ALABAMA
(ig8i).
13 Compare Robert Cover's wonderful assessment of the behavior of some judges
in slavery cases. R. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL
PROCESS (1975).
1082] 1511
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assumes the answers to some hard questions: To what extent
did the Fifth Circuit doctrine developed after Brown distort
principles of federalism to achieve short-term results in a way
that damaged basic postulates of the constitutional structure?
Did the Fifth Circuit mechanically move equal protection doc-
trine beyond the dictates of Brown because of preconceptions
about racial matters on the part of the court's majorities? Did
the court of appeals in fact usurp the function of the trial
courts, to the detriment of the orderly administration of justice
in the Circuit? Was the membership of the panels of the Court
of Appeals and of three-judge district courts manipulated ad-
ministratively to ensure particular results in important race
cases? Further, even if the answer to these questions is "yes,"
was that behavior improper for federal judges such as Judges
Brown, Rives, Tuttle, and Wisdom, who knew well that some
state and lower federal judges would never follow Brown in
the manner required by the basic premises of the judicial
system?
Of these questions, the one that Mr. Bass faces most di-
rectly is the charge that, in integration cases, the appellate
panels and three-judge courts were, in effect, packed. 14 The
charge was made by Judge Ben Cameron in a widely noted
dissent to the denial of a petition for rehearing en banc in
Armstrong v. Board of Education.15 The panel in the case
consisted of Judges Tuttle, Rives, and Gewin. The procedural
status of the case and the majority's decision were indeed
unusual. The hearing was on a motion seeking an injunction
from the court of appeals, pending appeal from the district
court's denial (but with a retention of jurisdiction) of an in-
junction against the school board. On the merits, even on a
conservative view of Brown I the district court had been
wrong in refusing relief, though its decision could not be called
irrational.16 But instead of reversing and remanding, the ap-
pellate panel wrote an injunction itself and ordered the district
court to enter that injunction, which was to "remain in effect
until the final determination of the appeal of the above-styled
case in the Court of Appeals for the Fifth Circuit on the
merits, and until the-further order of this Court."' 17 The in-
14 J. BASS, supra note 6, at 231-47.
i" 323 F.2d 333, 352 (5th Cir. 1963) (Cameron, J., dissenting).
16 The district court held that the Birmingham pupil assignment system, which
permitted assignments and transfers on pupil application, was constitutional on its
face, and that there had been no showing that the school board would not apply it
in a nondiscriminatory way. The court retained jurisdiction in order to deal with any
complaints about discriminatory application of the system. 323 F.2d at 334-35 (Rives,
J.).
17 Id. at 339.
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junction, ordered by the appellate panel on July 22, 1963,
required the school board to file by August i9, 1963, a plan
providing for full desegregation of the school system that Sep-
tember. It was not a decision "on the merits" only in the
technical sense that it was ordered in a decision on a petition
for an appellate injunction pending appeal, rather than on an
appeal as such.
The dissent by Judge Gewin attacked the procedure fol-
lowed by the majority, as well as the majority's abrupt dis-
agreement - before any hearing on the appeal as such - with
the district court's disposition below. 18 Judge Gewin requested
that the Fifth Circuit rehear the case en banc "because of the
extraordinary relief granted which conditions the merits of the
case before an examination of the record by the court, the
hurried and emergency action taken by the court, [and] the
unique procedure involved." 19 A majority of the full court
voted against an en banc hearing, with Judge Gewin noting
his dissent and Judge Cameron entering a dissent attacking in
full the "unorthodox procedures" followed by the Fifth Circuit
in cases involving racial problems. 20 That dissent discussed in
detail the emerging dispute in the court concerning the han-
dling of integration problems. Procedures were indeed used
that seem "unorthodox," in the sense that they would not have
been used in cases that did not involve the double urgency of
time and informed doubt about the will of district judges to
protect rights that would be lost through delay. Judge Cam-
eron's dissent listed twenty-five such cases decided in the pre-
vious two years, and pointed out that in twenty-two of them
the majority of the panel was some combination of what he
called "The Four" - Judges Brown, Rives, Tuttle, and Wis-
dom. 21 He also pointed out that he himself - the circuit
judge from Mississippi - had not been assigned to any of the
three-judge district court cases in Mississippi during that
period. 22
Is Id. at 339 (Gewin, J., dissenting).
19 Id. at 352.
20 Id. at 353 (Cameron, J., dissenting).
21 Id. at 358. In an addendum to his list, judge Cameron added four cases. The
panels consisted of three of "The Four" in one case, two of "The Four" plus another
judge in two cases, and one of "The Four" plus Judges Jones and Bell in the fourth
case. Id. at 360-61.
22 On any view of the matter, Judge Cameron's own bizarre judicial behavior in
connection with the efforts of James Meredith to be admitted to the University of
Mississippi disqualified him from sitting on such cases. A three-judge panel of the
Fifth Circuit had ordered District Judge Sidney Mize to issue an injunction ordering
Meredith's admission to the University. Judge Cameron then took the unprecedented
step of issuing a series of four stays suspending the panel's order, although Cameron
1982] 1513
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Mr. Bass's approach to this judicial squabble illustrates the
shortcomings of his book. He treats the matter as if the pri-
mary question were whether the assignment pattern suggested
by Judge Cameron's statistics invariably led to judicial stretch-
ing in favor of civil rights plaintiffs. 23 On that premise, he
analyzes the results in the cases and refutes the charge. Five
of the cases were actually decided against the plaintiff; another
five dealt with clearly settled issues; and fifteen involved spe-
cial factors (p. 244). Accordingly, Mr. Bass concludes, "[t]he
case-by-case analysis discloses that the innuendo Cameron's
statistics raised in regard to [Chief Judge] Tuttle's character
was totally without foundation" (p. 245).
The interesting question, however, and the one Cameron
was really raising, was not whether the packing affected the
outcome of important desegregation cases, but whether it was
proper judicial conduct. 24 An answer requires coherent con-
ceptions of proper judicial conduct and of evenhanded justice.
The members of the court disagreed about the extent to which
special judicial efforts were justified to prevent the atrophy of
civil rights through delay - delay caused by intransigent dis-
trict judges in some cases, but also delay stemming from the
demands of federalism and the normal pace of litigation.
These are matters over which conscientious lawyers, scholars,
and judges may disagree, and there is no necessary consensus
that it is an appropriate exercise of judicial power to resolve
them through techniques of court administration, if, as the
statistics suggested, that was being done. A more careful and
thoughtful book would have discussed these considerations and
assessed the value of strict adherence to federalist doctrines
and of other sources of delay in themselves.
The book has one other limitation that should be men-
tioned. It treats as heroes, as they were in a way, six white
men who happened to be federal judges in the South during
the period before the passage of the Civil Rights Act of 1964
and the Voting Rights Act of 1965. The role of these men in
the desegregation struggle is the subject matter of the book.
himself had not sat on the case. The logjam was finally broken when Supreme Court
Justice Black ordered that the judgment of the court of appeals be obeyed (pp. i79-
82).
23 Mr. Bass also shows that, for a variety of reasons, the statistics exaggerate the
extent of packing that actually occurred (pp. 240-41). He points out, however, that
Cameron's statistics "retained a disturbing appearance" (p. 24X).
24 Mr. Bass does quote Griffin Bell, then a Fifth Circuit judge, to the effect that
assignment manipulations generated the appearance of unfairness (pp. 246-47), but
Bass offers no analysis or assessment of the problem.
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1982] BOOK REVIEW 1515
To the extent that the book departs from their story, it does
so in a chapter about civil rights lawyers (chapter 16). The
lawyers Mr. Bass chooses to profile were also white. But
clearly, those whose lives, personal safety, economic security,
and futures were most at stake were not lawyers or judges at
all; they were the plaintiffs in the lawsuits described in Un-
likely Heroes and the participants in the civil rights movement,
and they were mostly black.
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Book Review: Unlikely Heroes

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Book Review: Unlikely Heroes

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